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Harvey v. Corrections Officers

United States District Court, N.D. New York

June 19, 2014

GREGORY HARVEY, Plaintiff,
v.
CORRECTIONS OFFICERS 1-6, et al., Defendants.

DECISION & ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

This pro se civil rights action comes before the Court following a Corrected Report-Recommendation filed on March 18, 2014, by the Honorable Therèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 95 ("Report-Recommendation"). Judge Dancks recommends that this action be dismissed with prejudice based on Plaintiff Gregory Harvey's ("Plaintiff") failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Report-Rec. at 21. For the following reasons, the Report-Recommendation is accepted and adopted in its entirety.

II. BACKGROUND

Plaintiff alleges that he was assaulted by a large group of correctional officers during his incarceration at Clinton Correctional Facility ("Clinton") in 2007, and asserts various causes of action related to this incident. Report-Rec. at 2-3. The Court presumes the parties' familiarity with the factual allegations underlying Plaintiff's claims. For a complete statement of Plaintiff's claims and the supporting facts, reference is made to the Second Amended Complaint. Dkt. No. 50 ("Second Amended Complaint").

After Defendants moved for summary judgment, the Court dismissed all of Plaintiff's claims except for his excessive force claims against Defendants J. Jabout and K. Reyell. Dkt. No. 69. That decision also recognized that, although Defendants had shown that Plaintiff failed to exhaust his administrative remedies, Plaintiff had raised a triable issue of fact as to whether Defendants were estopped from raising the exhaustion defense. Id. at 3. Judge Dancks subsequently held an evidentiary hearing on the question of estoppel, after which she issued the Report-Recommendation finding that Defendants were not estopped from raising the exhaustion defense and that Plaintiff's claims should therefore be dismissed. Dkt. Nos. 88, 89; Report-Rec. at 2. Plaintiff timely filed objections to the Report-Recommendation. Dkt. No. 96 ("Objections").

III. STANDARD OF REVIEW

A district court must review de novo any objected-to portions of a magistrate judge's report-recommendation or specific proposed findings or recommendations therein and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b); see also Morris v. Local 804, Int'l Bhd. of Teamsters, 167 F.App'x 230, 232 (2d Cir. 2006). Although the district court must provide a de novo determination of an objected-to portion of a report, it need not conduct a de novo hearing. United States v. Raddatz, 447 U.S. 667, 675 (1980). A district court may hold a hearing to resolve credibility claims regarding testimony relied on by the magistrate judge, but whether to conduct a hearing and view the witnesses itself lies within the court's discretion. Raddatz, 447 U.S. at 673-81.

If no objections to a report are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A., 434 F.App'x 47, 48 (2d Cir. 2011); Farid v. Bouey, 554 F.Supp.2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument.").

IV. DISCUSSION

Plaintiff raises several objections to the Report-Recommendation. First, Plaintiff appears to argue that Judge Dancks erroneously concluded that Plaintiff could have obtained a writing implement while he was at Clinton and therefore could have written a grievance while there. Objs. at 2. Plaintiff has misread the Report-Recommendation, which states that Plaintiff has not shown that "he had difficulty obtaining materials with which to write a grievance at any time within the 21 days after the assault other than the five days he was at Clinton. " Report-Rec. at 13 (emphasis added). In other words, the Report-Recommendation does not state that Plaintiff could have received a writing implement while he was at Clinton.

Second, Plaintiff argues that inmates at Clinton do not go through the same orientation as inmates at Downstate Correctional Facility ("Downstate"). Objs. at 4. However, the Report-Recommendation discusses whether Plaintiff received orientation at Downstate and Sing Sing Correctional Facility ("Sing Sing"), not Clinton. Report-Rec. at 16. This objection is therefore irrelevant.

Third, Plaintiff appears to argue that he could not have learned of the grievance procedure while at Downstate. Objs. at 4-5. Plaintiff states, among other things, that during the entire time he was at Downstate, he required use of a walking cane. Id. at 5. Because the walking cane was considered a security threat, Plaintiff was not allowed to visit the gym, which is where the law library was housed. Objs. at 5-6. Plaintiff presumably raises this objection because the Report-Recommendation notes that, according to Defendants' exhaustion hearing witness: "there was a library at Downstate, signs for which are posted right by the gymnasium and can be seen when inmates go to recreation. Inmates are permitted to go to the gymnasium almost every day for 45 minutes, and may access the library during that time." Report-Rec. at 8 (citation omitted). However, the Report-Recommendation does not rely on Plaintiff's access to the gym and/or library in finding that he was aware of the exhaustion procedure. Rather, the Report-Recommendation concludes that Plaintiff was aware of the grievance procedure based on: his claim that he sent a grievance to Clinton from Downstate; his testimony that he was later told by staff at Downstate that he needed to exhaust his administrative remedies; and his assertion that he spoke with a grievance representative while at Downstate. Report-Rec. at 15-16. Accordingly, Plaintiff's objection does not provide grounds for rejecting the Report-Recommendation.

Finally, Plaintiff states that he "was not psychiatrically competent to understand the grievance process until April 16th 2009, " and that he can provide documentation of this condition to the Court upon request. Objs. at 7. Plaintiff argues that his mental illnesses-bipolar disorder and paranoid schizophrenia[1]-constitute special circumstances excusing his failure to exhaust available administrative remedies. Id. at 6-8. However, "the special circumstances exception under Hemphill concern[s] an inmate's justifiable confusion regarding the proper DOCS procedure for filing an expedited grievance, not an inmate's mental or emotional condition." See, e.g., Newman v. Duncan, 04CV395, 2007 WL 2847304, at *4 (N.D.N.Y. Sept. 26, 2007) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). Accordingly, an inmate's mental illness is only relevant to a claim of special circumstances to the extent it shows that her failure to properly follow the grievance process resulted from confusion regarding the process. Here, although Plaintiff's medical records do show a history of mental illness, Plaintiff has not shown that his failure to follow the grievance procedure resulted from this condition. On the contrary, as stated in the Report-Recommendation, Plaintiff appears to have sufficiently understood the grievance process by July 2007; confusion-whether or not caused by mental illness-was not the reason for his failure to exhaust. Report-Rec. at 19. Given the long pendency of this case and the development of an extensive evidentiary record, dismissal for non-exhaustion of remedies is appropriate. See Hilson v. Maltese, 09-CV-1373, 2011 WL 767696, at *2 & n.1 (N.D.N.Y. Feb. 28, 2011) (stating that although allegation of special circumstances based on mental illness may be sufficient to survive motion to dismiss, dismissal for failure to exhaust may be proper on motion for summary judgment).

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the Report-Recommendation (Dkt. No. 95) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED, that Plaintiff's Second Amended Complaint (Dkt. No. 50) is DISMISSED with prejudice for failure to comply with the exhaustion requirements of 42 U.S.C. § 1997e(a); and it is further

ORDERED, that the Clerk provide Plaintiff with copies of all unpublished decisions cited in this Decision and Order in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009); and it is further

ORDERED, that the Clerk serve a copy of this Decision and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Lerome Hilson, Comstock, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General of the State of New York, Megan M. Brown, Esq., Assistant Attorney General, Christina L. Roberts-Ryba, Esq., Assistant Attorney General, Albany, NY, for Defendants.

Opinion

MEMORANDUM-DECISION AND ORDER

Hon. NORMAN A. MORDUE, Chief Judge.

*1 Plaintiff, an inmate in the custody of the New York State Department of Correctional Services, brought this action for monetary relief under 42 U.S.C. § 1983, claiming defendants sexually assaulted and physically abused him during a "strip frisk" on June 12, 2008. Defendant's motion (Dkt. No. 18) to dismiss the complaint, Fed.R.Civ.P. 12(b)(6), was referred to United States Magistrate Judge Andrew T. Baxter pursuant to 28 U.S.C. § 636(b)(1) (B) and Local Rule 72.3(c). Magistrate Judge Baxter issued a Report and Recommendation (Dkt. No. 30) recommending that the motion be granted with prejudice on the ground of failure to exhaust administrative remedies. Magistrate Judge Baxter also noted that, if it were not for the failure to exhaust, he would recommend dismissal without prejudice on the ground that the complaint does not state a cause of action.

Plaintiff objects (Dkt.Nos. 31, 32). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Upon de novo review, the Court accepts the Report and Recommendation's summary of the facts and law and its conclusion that the complaint fails to state a cause of action. The Court rejects the Report and Recommendation insofar as it recommends dismissal with prejudice on the ground of failure to exhaust administrative remedies.

The Prison Litigation Reform Act ("PLRA") requires a prisoner to exhaust all administrative remedies before bringing an action regarding prison conditions. See 42 U.S.C. § 1997e(a). The PLRA requires "proper exhaustion, " which means "compliance with an agency's deadlines and other critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Second Circuit recognizes the following exceptions to the exhaustion requirement: (1) that administrative remedies were not in fact available; (2) that prison officials have forfeited, or are estopped from raising, the affirmative defense of non-exhaustion; or (3) that special circumstances justify the prisoner's failure to comply with administrative procedural requirements. See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004).

Failure to exhaust "is an affirmative defense under the PLRA, and... inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Thus, a court may not properly grant a Rule 12(b)(6) motion on this ground if the failure to exhaust is not apparent from the face of the complaint. See, e.g., Smalls v. Jummonte, 2010 WL 3291587, *3 (S.D.N.Y. Aug. 13, 2010); Pierce v. Monell, 2007 WL 2847317, *6 (N.D.N.Y. Sept. 26, 2007); also see Morris v. Rabsatt, 2010 WL 4668440, *4 (N.D.N.Y. Oct. 18, 2010) (Lowe, M.J., recommending denial of dismissal motion on ground of non-exhaustion based on "the state of the pleadings, the special solicitude that must be granted to pro se civil rights litigants, and the fact that failure to exhaust is an affirmative defense that generally cannot be determined on a motion to dismiss"), adopted by district court, 2010 WL 4668328 (N.D.N.Y. Nov. 9, 2010).

*2 In the instant case, the complaint (Dkt. No. 1) states only that plaintiff did not grieve the matter because he "was mentally unstable at the time" and "had a mental break down." Plaintiff attaches to the complaint the incident report regarding the June 12, 2008 strip frisk, his "Ambulatory Health Record" for that date, a "Chronic Medication Provider Order Form" which appears to cover the period from September 7, 2005 to June 27, 2008; and a "Clinical Drug Information" summary regarding "Citalopram" ("Celexa") which does not appear to be listed on the Chronic Medication Provider Order Form or the Ambulatory Health Record. Whether plaintiffs alleged mental instability constitutes a special circumstance justifying his failure to exhaust cannot be determined on the face of the complaint and the attachments.[1] Thus, Rule 12(b)(6) dismissal is not proper.

In some cases, courts have converted motions to dismiss for non-exhaustion under Rule 12(b)(6) to motions for summary judgment, upon proper notice to the parties. See, e.g., Bennett v. James, 2010 WL 3583410, *3 (S.D.N.Y. Sept. 16, 2010); Smalls, 2010 WL 3291587 at *3. This Court declines to convert the instant motion to one for summary judgment at this point, because, as Magistrate Judge Baxter notes, the complaint fails to state a cause of action.

Construing plaintiffs complaint and other submissions "liberally to raise the strongest arguments that they suggest, " Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir.2010), the Court grants plaintiff leave to amend his complaint. Plaintiff is advised that, if he submits an amended complaint, it will completely replace and supersede the initial complaint. Thus, he should include in the body of the amended complaint all facts and claims upon which he relies, including those set forth in the initial complaint and in any grievance or other document. The Court suggests that in drafting an amended complaint, plaintiff set forth in separate numbered paragraphs the alleged acts of misconduct; the date on which they occurred; the names of all individuals who participated in the misconduct; and the location where the alleged misconduct occurred.

Accordingly, plaintiff is granted leave to serve an amended complaint. Defendants' motion to dismiss (Dkt. No. 18) is granted to the extent that, if plaintiff fails to serve an amended complaint in accordance with this decision, the action will be dismissed without prejudice; the motion is otherwise denied.

It is therefore

ORDERED that the Report and Recommendation (Dkt. No. 30) is accepted in part and rejected in part; and it is further

ORDERED that defendants' motion to dismiss (Dkt. No. 18) is granted in part and denied in part; and it is further

ORDERED that plaintiff is given leave to file an amended complaint in accordance with this Memorandum-Decision and Order on or before March 25, 2011; and it is further

ORDERED that if plaintiff fails to file an amended complaint on or before March 25, 2011, the action will be automatically dismissed without prejudice, and the Clerk shall enter judgment dismissing the action without prejudice without further order of the Court; and it is further

*3 ORDERED that the Clerk's Office mail a copy of this Memorandum-Decision and Order to plaintiff by regular mail.

IT IS SO ORDERED.

LaCream Newman, Auburn, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General for the State of New York, Charles J. Quackenbush, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

Opinion

DECISION & ORDER

THOMAS J. McAVOY, Senior United States District Judge.

I. INTRODUCTION

*1 This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. David R. Homer, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). No objections to the Report-Recommendation and Order dated September 6, 2007 have been filed. Furthermore, after examining the record, this Court has determined that the Report-Recommendation and Order is not subject to attack for plain error or manifest injustice. Accordingly, the Court adopts the Report-Recommendation and Order for the reasons stated therein.

It is therefore,

ORDERED that

(1) Defendants' motion for summary judgment (Docket No. 36) is GRANTED as to defendants Duncan, Carpenter, VanGuilder, Mazzuca, Ercole, and Conklin and as to all of Newman's causes of action;

(2) The complaint is DISMISSED without prejudice as to defendant John Doe; and

(3) This action is TERMINATED in its entirety as to all defendants and all claims.

IT IS SO ORDERED

REPORT-RECOMMENDATION AND ORDER[1]

DAVID R. HOMER, U.S. Magistrate Judge.

Plaintiff pro se LaCream Newman ("Newman"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, seven DOCS employees, violated his constitutional rights under the Eighth and Fourteenth Amendments.[2] See Compl. (Docket No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Docket No. 36. Newman opposes the motion. Docket No. 41. For the following reasons, it is recommended that defendants' motion be granted.

I. Background

The facts are presented in the light most favorable to Newman as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).

On October 23, 2002, Newman was being transferred from Great Meadow Correctional Facility ("Great Meadow") to Fishkill Correctional Facility's ("Fishkill") Special Housing Unit ("SHU").[3] See Pelc. Aff. (Docket No. 36), Ex. B. Before arriving at Fishkill, Newman was temporarily housed at Downstate Correctional Facility ("Downstate"). Id. While being housed at Downstate, an inmate attempted to sexually assault Newman. See Compl. at ¶ 7. On October 24, 2002, Newman was transferred from Downstate to Fishkill. See Pelc. Aff., Ex. B. Upon arrival at Fishkill, Newman was assigned to a double occupancy cell. See Compl. at ¶ 10. On October 29, 2002, an inmate again attempted to sexually assault Newman. See Compl. at ¶ 12; see also Harris Aff. (Docket No. 36) at Ex. A. On November 15, 2002, Newman was transferred to Clinton Correctional Facility ("Clinton"). See Pelc. Aff., Ex. B. This action followed.

II. Discussion

Newman asserts six causes of action, each alleging that defendants' failure to house Newman in a single occupancy cell constituted cruel and unusual punishment under the Eighth Amendment. Defendants seek judgment on all claims.

A. Standard

*2 A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988). When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Id .; see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.

B. Exhaustion

Defendants contend that Newman has failed to demonstrate any reasonable excuse for failing to exhaust his administrative remedies as to his Eighth Amendment claim. See Defs. Mem. of Law (Docket No. 36) at 6-11. Newman contends that he failed to exhaust his administrative remedies after the attempted sexual assaults because (1) he was threatened by John Doe; (2) he was in transit between DOCS facilities; and (3) he was dealing with the mental and emotional effects of the attempted assaults. See PI. Reply Mem. of Law (Docket No. 41) at 1-3.

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), subjects suits concerning prison conditions brought under federal law to certain prerequisites. Specifically, the PLRA dictates that a prisoner confined to any jail, prison, or correctional facility must exhaust all available administrative remedies prior to bringing any suit concerning prison life, "whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)); see also Jones v. Bock, 127 S.Ct. 910, 918-19 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.") (citation omitted)); Woodford v. Ngo, 126 S.Ct. 2378, 2382-83 (2006). Administrative remedies include all appellate remedies provided within the system, not just those that meet federal standards. Woodford, 126 S.Ct. at 2382-83. However, the Second Circuit has recognized three exceptions to the PLRA's exhaustion requirement:[4]

*3 when (1) administrative remedies are not available to the prisoner; (2) defendants have either waived the defense of failure to exhaust or acted in such a way as to estop them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement.
Ruggiero, 467 F.3d at 175 (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004)

"The PLRA's exhaustion requirement is designed to afford [] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004) (quoting Porter, 534 U.S. at 524-25)). "[A] grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.'" Id. (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.2002)). Inmates must provide sufficient information to "allow prison officials to take appropriate responsive measures." Id.

DOCS has established a grievance procedure which includes a three-stage review and appeal process. See N.Y. Correct. Law § 139 (McKinney 2003); N.Y. Comp.Codes R. & Regs. tit. 7, § 701.1-.16 (2003);[5] Hemphill, 380 F.3d at 682-83. When an inmate files a grievance, it is investigated and reviewed by an Inmate Grievance Resolution Committee ("IGRC"). If the grievance cannot be resolved informally, a hearing is held. The IGRC decision may be appealed to the Superintendent of the facility. Finally, an inmate may appeal the Superintendent's decision to the Central Office Review Committee ("CORC").N.Y. Comp.Codes R. & Regs. tit.7, § 701.7(c).

Here, it is undisputed that Newman's first attempt to file a grievance regarding the alleged sexual assaults did not occur until September 21, 2003, nearly one year after the alleged assaults. See Pl. Reply Statement of Material Facts (Docket No. 41) at Ex. 2; see also Newman Dep. (Ullman Decl. at Ex. 1, Docket No. 36) at 85-87. In his complaint, Newman contends that he failed to file a timely complaint due to "fear." See Pl. Reply Statement of Material Facts at Ex. 2. However, the Inmate Grievance Program ("IGP") supervisor at Clinton rejected Newman's attempt to file his complaint as a grievance because Newman failed to "expand on what/who caused the fear.'" Id. The IGP supervisor also noted that Newman had been housed at Clinton for the previous nine months and, thus, had "ample opportunity to file [his] complaint before [September 2003]." Id. Newman attempted to file an appeal of the IGP supervisor's decision to the Superintendent, but the supervisor advised Newman "[t]here is no provision to appeal the IGP Supervisors decision (to not accept a grievance) to the Superintendent. You may file a separate grievance on the determination by submitting it to the IGRC office." Id.

*4 On or about October 15, 2003, Newman filed a grievance requesting that the October 10, 2003 decision of the IGP supervisor be reversed. See Ullman Decl. (Docket No. 36) at Exs. 5 & 6. Newman alleged that the following "mitigating circumstances" prevented him from filing a timely grievance regarding the October 2002 sexual assaults: "1. I was in transit within the 14 days of the incident; to a number of correctional facilities; in addition to MHU within NYS DOCS; 2. I was confronted with fear (threats); which was made by CO's at Fishkill SHU 200 which I wasn't to make mention of the situation and that he could cause me to be placed in the same situation again and no on[e] would help me." Id. The IGRC denied Newman's grievance, finding that "[Newman] has been in [Clinton] since Dec. 2002 which gave him adequate time to file complaint which would have been accepted if filed then. Grievant did not provide mitigating circumstances to warrant the acceptance of complaint." Ullman Decl., Ex. 5 at 4. The Superintendent and CORC both denied Newman's appeals, finding that Newman had failed to present mitigating circumstances to excuse his delay in submitting the complaint. See Ullman Decl, Exs. 7 & 8.

In claiming that his non-exhaustion should be excused, Newman makes three arguments. First, he contends that a corrections officer at Fishkill (John Doe) threatened him, warning that if Newman reported the October 29, 2002 sexual assault then he would be placed back in the "same predicament" he was in before. See Newman Dep. at 83. However, Newman was transferred to Clinton in November 2002 and, thus, could have immediately filed a grievance now that he was separated from the officer who threatened him. See Pelc Decl. (Docket No. 36) at Ex. B. Further, Newman testified that he felt "safe" while at Clinton, demonstrating that any fear he may have had surrounding the filing of a grievance was left behind at Fishkill. See Newman Dep. at 66. Moreover, Newman ultimately did file a grievance while at Clinton. See Ullman Decl., Exs. 5 & 6. Thus, Newman's first argument for failure to properly exhaust is not persuasive.

Second, Newman contends that his frequent transfers between DOCS facilities within fourteen days of the sexual assaults prevented him from timely filing a grievance. However, this argument is not persuasive because DOCS regulations state that "[e]ach correctional facility housing a reception/classification/transit inmate population shall insure all inmates access to the IGP." N.Y. Comp.Codes R. & Regs. tit.7, § 701.14. Further, Newman arrived at Clinton on November 15, 2003 and was not moved to another DOCS facility until November 19, 2003, thus affording him nearly a year where he was not "in transit." See Pelc. Decl. at Ex. B.

Third, Newman contends that this Court should apply the "special circumstances" exception under Hemphill because he was dealing with the mental and emotional effects of the sexual assaults, thus preventing his filing of a grievance. See Newman Dep. at 83-84; Pl. Reply Mem. of Law at 2-3; see also Hemphill, 380 F.3d at 686. However, the special circumstances exception under Hemphill concerned an inmate's justifiable confusion regarding the proper DOCS procedure for filing an expedited grievance, not an inmate's mental or emotional condition. See Hemphill, 380 F.3d at 689-91. Thus, absent any documented mental illness that prevented Newman from filing a grievance, his third argument excusing his failure to timely exhaust his administrative remedies is not persuasive.[6]

*5 Therefore, it is recommended that defendants' motion on this ground be granted.

C. Eighth Amendment[7]

Newman contends that defendants knew or should have know that he was a homosexual and that his placement in a double occupancy cell "facilitated... the cause for the incident of attempted rape/physical assault that occurred to plaintiff therein at Fishkill SHU 200, on or about 10/29/02." Compl. at ¶¶ 15, 17, 19, 21, 23.

Prison officials have a duty to protect inmates from violence by other inmates. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). When asserting a failure to protect claim, an inmate must establish that he was "incarcerated under conditions posing a substantial risk of serious harm" and that the defendants acted with deliberate indifference to the inmate's safety. Id. at 834. Deliberate indifference is established when the official knew of and disregarded an excessive risk to inmate health or safety. Id. at 837. However, "the issue is not whether [a plaintiff] identified his enemies by name to prison officials, but whether they were aware of a substantial risk of harm to [him]." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 621 (2d Cir.1991).

Here, Newman contends that on two separate occasions, fellow inmates "attempted to rape/physical[ly] assault" him. See Compl. at ¶¶ 7, 11, 15, 17, 19, 21, 23. However, it is undisputed that Newman did not suffer any actual injury[8] from these attempted assaults. See Defs. Statement of Material Facts (Docket No. 36) at ¶¶ 71-76; Pl. Reply Statement of Facts at ¶¶ 71-76; see also Newman Dep. at 31-32, 35-37, 41-42, 68-74, 95-96; Harris Aff. at Ex. A. The law is clear that an inmate must demonstrate an "actual injury" when alleging a constitutional violation. See Brown v. Saj, No. Civ. 06-6272(DGL), 2007 WL 1063011, at *2 (W.D.N.Y. Apr. 5, 2007) (citing Lewis v. Casey, 518 U.S. 343, 349 (1996)). These two isolated incidents, coupled with Newman's failure to allege any injury resulting from the attempted sexual assaults, fail to demonstrate a constitutional violation under the Eighth Amendment. See Boddie v. Schnieder, 105 F.3d 857, 861-62 (2d Cir.1997) (holding that isolated incidents of sexual assault, without any injury, fail to state an Eighth Amendment claim); see also Brown, 2007 WL 1063011, at *2 (dismissing inmate's failure to protect claim for failure to demonstrate an actual injury).

Therefore, in the alternative, it is recommended that defendants' motion on this ground be granted.

D. Qualified Immunity

Defendants also contend that they are entitled to qualified immunity. Qualified immunity generally protects governmental officials from civil liability insofar as their conduct does not violate clearly established constitutional law of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Aiken v. Nixon, 236 F.Supp.2d 211, 229 (N.D.N.Y.2002), aff'd, 80 Fed.Appx. 146 (2d Cir. Nov. 10, 2003). A court must first determine that if plaintiffs allegations are accepted as true, there would be a constitutional violation. Only if there is a constitutional violation does a court proceed to determine whether the constitutional rights were clearly established at the time of the alleged violation. Aiken, 236 F.Supp.2d at 230. Here, as discussed supra, accepting all of Newman's allegations as true, he has not shown that defendants violated his constitutional rights.

*6 Therefore, in the alternative, defendants' motion for summary judgment on this ground should be granted.

E. Failure to Serve Defendant John Doe

Newman's complaint asserts a claim against John Doe, a defendant who has neither been identified nor served with the complaint. Rule 4(m) of the Federal Rules of Civil Procedure requires that service of process be effectuated within 120 days of the date of the filing of the complaint. See also N.D.N.Y.L.R. 4.1(b). Because defendant John Doe has not been identified by Newman or timely served with process, it is recommended that the complaint be dismissed without prejudice against this defendant.

III. Conclusion[9]

For the reasons stated above, it is hereby

RECOMMENDED that:

1. Defendants' motion for summary judgment (Docket No. 36) be GRANTED as to defendants Duncan, Carpenter, VanGuilder, Mazzuca, Ercole, and Conklin and as to all of Newman's causes of action;
2. The complaint be DISMISSED without prejudice as to defendant John Doe; and
3. This action therefore be TERMINATED in its entirety as to all defendants and all claims.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Opinion

ADOPTION OF REPORT AND RECOMMENDATION

DEBORAH A. BATTS, District Judge.

I. BACKGROUND

*1 Now before the Court is pro se Petitioner Shawn Machicote's November 20, 2006 Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"), challenging his conviction in New York State Supreme Court, New York County, for murder in the second degree. Petitioner alleges that: (1) his right to due process was violated by the admission into evidence of statements he made to detectives while incarcerated in North Carolina on unrelated charges; (2) his rights to a fair trial, due process, and equal protection were violated when the trial court overruled defense counsel's preemptory challenges against prospective jurors; and (3) his Sixth Amendment right to confront witnesses against him was violated by the introduction at trial of hearsay statements from a witness. (Report at 1.) On December 8, 2006, the Petition was referred to United States Magistrate Judge James C. Francis IV for a report and recommendation.

Judge Francis' January 18, 2008, Report and Recommendation (the "Report") recommends that Petitioner's habeas corpus Petition be denied. (Report at 1.) Specifically, Judge Francis recommends that the Petition be denied because: (1) statements Petitioner made while incarcerated in North Carolina were not made under coercion beyond the mere fact of imprisonment, and the state court's decision to admit those statements was not contrary to, and did not involve the unreasonable application of, clearly established federal law; (2) proper procedure was employed by the state court in overruling defense counsel's preemptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and preemptory challenges guaranteed by New York state law can not be challenged by federal habeas corpus review; and (3) in-court statements challenged by Petitioner were not hearsay because they were admitted to establish the witnesses state of mind, and review of the Petitioner's Confrontation Clause claim is barred because of procedural default during the state court proceedings. Petitioner filed untimely objections to Judge Francis' Report, which the Court will nevertheless consider.

For the reasons set forth below, Judge Francis' Report is adopted in its entirety, and Petitioner's Petition for the writ of habeas corpus is HEREBY DENIED.

II. DISCUSSION [1]

A. Objections to the Report and Recommendation

"Within fourteen days after being served with a copy [of a Magistrate Judge's Report and Recommendation], a party may serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b) (2); accord 28 U.S.C. s 636(b)(1)(C). The court may adopt those portions of the Report to which no timely objection has been made, as long as there is no clear error on the face of the record. Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003). A district court must review de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C).

*2 "To the extent, however, that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., 2008 WL 4810043, at *1 (S.D.N.Y. Nov.3, 2008); see also Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008) ("Reviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original Petition.") (citation and internal quotation marks omitted). After conducting the appropriate levels of review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1)(C).

The objections of pro se parties are "generally accorded leniency and should be construed to raise the strongest arguments that they suggest." Howell v. Port Chester Police Station, 2010 WL 930981, at *1 (S.D.N.Y. Mar.15, 2010) (citation omitted)." Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Id. (quoting Pinkney v. Progressive Home Health Servs., 2008 WL 2811816 (S.D.N.Y. July 21, 2008) (internal quotations marks omitted)).

On April 29, 2008, Petitioner filed untimely objections[2] to Judge Francis' Report (the "Objections"). Reading Petitioner's letter in the most lenient manner possible. Petitioner objects to Judge Francis' rejection of Petitioner's Confrontation Clause claim on the grounds that ineffective assistance of counsel cures the procedural default in that claim.

Petitioner did not object to Judge Francis' Report on Miranda and Batson claims and, accordingly, the Court will review these issues only for clear error. Indymac Bank, F.S.B., 2008 WL 4810043, at *1. Because Petitioner objected to Judge Francis' recommendation on the Confrontation Clause claim, the Court will review that claim de novo. 28 U.S.C. § 636(b) (1)(C).

B. Legal Standard

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, "28 U.S.C. § 2254(d) (1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2).

A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); accord Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir.2006); Ernst v. Stone, 452 F.3d 186, 193 (2d Cir.2006). The phrase, "clearly established Federal law, " limits the law governing a habeas Petitioner's claims "to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (quoting Williams, 529 U.S. at 365); accord Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006).

*3 "The unreasonable application' standard is independent of the contrary to' standard... [and] means more than simply an erroneous' or incorrect' application" of federal law." Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005) (citing Williams, 529 U.S. at 410). A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identifies the governing legal rule, but applies it in an unreasonable manner to the facts of a particular case. See Williams, 529 U.S. at 413. The inquiry for a federal habeas court is not whether the state court's application of the governing law was erroneous or incorrect, but, rather, whether it was "objectively unreasonable." Id. at 408-10; see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001) ("[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable.").

Moreover, under the AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [Petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e) (1); see also Parsad v. Greiner, 37 F.3d 175, 181 (2d Cir.2003) ("This presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

C. Miranda Claim

Judge Francis found that statements Petitioner made while incarcerated in North Carolina were not made under coercion beyond the mere fact of imprisonment, and the state court's decision to admit those statements was not contrary to, and did not involve the unreasonable application of, clearly established federal law. After reviewing Judge Francis' findings for clear error on the face of the record, the Court ADOPTS Judge Francis' recommendation that the Petitioner's Petition for the writ of habeas corpus on this claim be DENIED.

D. Batson Ruling and Peremptory Challenges Claim

Judge Francis found that proper procedure was employed by the state court in overruling defense counsel's preemptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that peremptory challenges are guaranteed by New York state law, not federal law, and thus cannot be challenged under federal habeas corpus review. After reviewing Judge Francis' findings for clear error on the face of the record, the Court ADOPTS Judge Francis' recommendation that the Petitioner's Petition for the writ of habeas corpus on this claim be DENIED.

E. Confrontation Clause Claim

1. Procedural Default

*4 Judge Francis recommends that Petitioner's Confrontation Clause claim be barred because of procedural default during the state court proceedings, and even if Petitioner's Confrontation Clause claim was not barred, it would fail on the merits.

Petitioner contends that the admission of Stephanie Arthur's testimony regarding out of court statements identifying Petitioner as the shooter violated his Sixth Amendment right to confront witnesses against him.[3] The Respondent argues that this claim is procedurally defaulted because the Petitioner did not clearly raise it as an objection, on constitutional grounds, during trial.

A procedural default generally bars a federal court from reviewing the merits of a habeas claim. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Federal habeas review is prohibited if a state court rests its judgment on a state law ground that is "independent of the federal question and adequate to support the judgment." Cotto v. Hebert, 331 F.3d 217, 238 (2d Cir.2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). A state procedural bar qualifies as an "independent and adequate' state law ground where the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir.1995) (quoting Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)). Here, the Appellate Division found Petitioner's Confrontation Clause claim unpreserved because Petitioner's objection to Ms. Arthur's testimony failed to reference any constitutional grounds for the objection. People v. Machicote, 23 A.D.3d at 265, 804 N.Y.S.2d at 78 ("To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice.").

Under New York's contemporaneous objection rule, an issue is properly preserved for appellate review only if the party raised an objection at trial. N.Y. C.P.L. § 470.05(2). Even if there is an objection to the admission of testimony at trial, to preserve a constitutional claim grounded on the Confrontation Clause, New York law demands that counsel specify the constitutional dimension of the objection. E.g., People v. Quails, 55 N.Y.2d 733, 734, 431 N.E.2d 634, 635, 447 N.Y.S.2d 149, 150 (1981)." If a state appellate court refuses to review the merits of a criminal defendant's claim of constitutional error because of his failure to comply with... a * contemporaneous objection' rule, a federal court generally may not consider the merits of the constitutional claim on habeas corpus review." Peterson v. Scully, 896 F.2d 661, 663 (2d Cir.1990); see also Wainwright v. Sykes, 433 U.S. 72, 82-86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Garcia v. Lewis, 188 F.3d 71, 78-79 (2d Cir.1999).

Here, Petitioner's trial counsel objected to Ms. Arthur's testimony at trial, but counsel made no mention of Petitioner's right to confront witnesses, or any constitutional grounds for his objection. Counsel's primary reason for objecting was only that Ms. Arthur could not independently identify Petitioner as the shooter and that her entire testimony should be stricken on that basis. (Tr. at 431-36). Therefore, the Appellate Division's holding that any constitutional claim was not preserved for review is not contrary to, or an unreasonable application of, clearly established federal law.

*5 A federal habeas court may not review a prisoner's claim if that claim was procedurally defaulted in state court "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Excuse of procedural default requires a showing that some external impediment actually prevented counsel from raising the claim. McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A petitioner suffers actual prejudice if the outcome of the case would likely have been different had the alleged constitutional violation not occurred. See Reed v. Ross, 468 U.S. 1, 12, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); Trottie v. Mantello, No. 98 Civ. 5581, 1999 WL 187202, at *4 (S.D.N.Y. April 6, 1999).

If the petitioner is unable to meet the cause and prejudice standard, his claim may still be heard if he can show that failure to consider the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. However, only in an "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, " will "a federal habeas court grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496; accord Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir.2000).

Here, Petitioner has not shown that either the "cause and prejudice" or "fundamental miscarriage of justice" exceptions apply. Petitioner cannot meet the cause and prejudice standard because Petitioner has proffered no compelling explanation for counsel's failure to make a constitutional objection to Ms. Arthur's testimony during trial. Nor is this an "extraordinary case" that has clearly "resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Consequently, Petitioner's Confrontation Clause claim is barred

2. Petitioner's Hearsay Claim Fails on the Merits

Even if the Petitioner's hearsay objection was sufficient to raise a Confrontation Clause claim, the claim would also fail on the merits. "It has long been the rule that [s]o long as... statements are not presented for the truth of the matter asserted, but only to establish a context... the defendant's Sixth Amendment rights are not transgressed.'" United States v. Paulino, 445 F.3d 211, 216 (2d Cir.2006) (quoting United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990)); see also Rolland v. Greiner, No. 02 Civ. 8403, 2006 WL 779501, at *3 (S.D.N.Y. March 27, 2006) (no Confrontation Clause violation when court admitted testimony of police detectives about a non-testifying co-defendant's statements inculpating Petitioner for the purpose of explaining what led detectives to interview defendant five years after crime). Since Ms. Arthur's statements were admitted only to show her state of mind and to establish a context for her identification of the Petitioner, there was no violation of the Petitioner's Sixth Amendment rights.

F. Newly Presented Ineffective Assistance of Counsel Claim

*6 Included with Petitioner's Objections was a copy of a motion to vacate judgment that Petitioner filed in state court, alleging ineffective assistance of counsel. Ineffective assistance of counsel can excuse procedural default at the state level, but the ineffective assistance of counsel claim must first be presented in state court. See Edwards v. Carpenter, 529 U.S. 446, 451-454, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); DiSimone v. Phillips, 461 F.3d 181, 191 (2nd Cir.2006). At the time of his Report, Judge Francis noted that Petitioner's ineffective assistance of counsel claim was procedurally barred because Petitioner did not raise it during the state court proceedings. (Report at 37.) In an effort to cure that default, Petitioner filed a motion in state court to vacate his judgment on the grounds of ineffective assistance of counsel. While Petitioner's state court motion to vacate may have cured the procedural default in his ineffective assistance of counsel claim[4], Petitioner raises this argument for the first time in his Objections, despite the fact that in earlier filings Petitioner specifically denied any claim for ineffective assistance of counsel. (Opp'n to Respondent's Mem. Law at 2.)

The Court of Appeals for the Second Circuit has not decided whether a district court must consider a new legal argument raised for the first time in objections to a magistrate judge's Report and Recommendation. One U.S. District Court in Vermont, Wells Fargo Bank N.A. v. Sinnott, 2010 WL 297830, at *2 (D.Vermont), adopts the 11th Circuit's approach to new legal arguments, as described in Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir.2009) (holding that in order to preserve the efficiencies afforded by the Magistrates Act, a district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge.).[5]

Applying this standard here, the Court finds that it does not need to address Petitioner's new legal argument because: (1) Petitioner did not make an ineffective assistance of counsel argument before Judge Francis when he had the opportunity to do so; (2) the record indicates that Petitioner was satisfied with counsel; (3) Petitioner only attempted to bring an ineffective assistance of counsel claim after it was suggested in Judge Francis' Report as a possible cure to cure his Confrontation Clause claim's procedural default; (4) the Court is unaware of any intervening case or statute that has changed the state of the law regarding procedural default or ineffective assistance of counsel claims; (5) the resolution of the new legal issue raised here is not open to a serious question of law; and (6) efficiency and fairness lean strongly in favor of not considering Petitioner's new legal argument as it would effectively eliminate any efficiencies gained through the Magistrates Act and would unfairly benefit Petitioner who changed his tactics after issuance of the magistrate judge's Report and Recommendation. See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988) ("an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.")

*7 Finally, no manifest injustice will result by the Court declining to consider Petitioner's new argument. To prevail on an ineffective assistance of trial counsel claim, Petitioner must show: (1) that counsel's performance was deficient; and (2) actual prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner would need to show that trial counsel's conduct fell "outside the range of professionally competent assistance" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Petitioner's state court motion to vacate judgment for ineffective assistance of counsel was denied, and it would be denied here as well. The record shows zealous representation of Petitioner by counsel at trial, and there is no indication that counsel's failure to object to Ms. Arthur's testimony on constitutional grounds resulted in actual prejudice as the claim would still fail on the merits because the challenged statements by Ms. Arthur were not hearsay. See supra.

Thus, the Court declines to consider Petitioner's ineffective assistance of counsel claim raised for the first time in Petitioner's Objections to Judge Francis' Report.

III. Conclusion

Having reviewed the January 18, 2008, Report and Recommendation of Magistrate Judge James C. Francis IV for clear error on the first two claims, and de novo on the third claim, the Court HEREBY APPROVES, ADOPTS, and RATIFIES the Report in its entirety, and Petitioner's Petition for the writ of habeas corpus is DENIED. The Clerk of the Court is directed to close the docket in this case.

SO ORDERED.


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