United States District Court, N.D. New York
TYRAY GILLIAM, Petitioner, Pro Se Orleans Correctional Facility Albion, New York
ALYSON J. GILL, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General, for the State of New York New York, New York, Counsel for Respondent.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this habeas corpus proceeding filed pro se by Tyray Gilliam ("Petitioner") pursuant to 28 U.S.C. § 2254, are (1) a Report-Recommendation by United States Magistrate Judge Andrew T. Baxter recommending that the Petition be denied and dismissed pursuant to 28 U.S.C. § 2253(c)(2) and that a certificate of appealability not issue, and (2) Petitioner's Objection thereto. (Dkt. Nos. 25, 26.) For the reasons set forth below, Magistrate Judge Baxter's Report-Recommendation is accepted and adopted in its entirety, and the Petition is denied and dismissed in its entirety.
I. RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties, the Court will not repeat the factual background of Petitioner's 2008 state-court conviction for rape in the second degree, but will simply refer the parties to the relevant portion of Magistrate Judge Baxter's Report-Recommendation, which accurately recites that factual background. (Dkt. No. 25, at Part I.)
Liberally construed, Petitioner's Petition asserts four claims: (1) that Petitioner's right to a fair trial was violated because he was convicted based on an altered and forged Miranda waiver submitted at both the grand jury proceeding and suppression hearing; (2) that the arresting officer's testimony at the suppression hearing differed from what was written in his arrest report; (3) that Petitioner's right to due process was violated because forged evidence and perjured testimony was used to convict him; and (4) that the prosecutor and police committed misconduct by tampering with evidence. ( See generally Dkt. No. 1.)
Generally, in his Report-Recommendation, Magistrate Judge Baxter recommends that Petitioner's claims be dismissed for the following reasons: (1) federal habeas review of Petitioner's conviction is precluded because the Appellate Division's judgment (that review of Petitioner's claims was foreclosed by his guilty plea, the related withdrawal of his pretrial suppression motions, and his unrestricted waiver of his appeal before sentencing) rested on a state law ground that is independent of the federal question presented and is adequate to support the judgment; and (2) Petitioner has not made a requisite showing of (a) cause for his procedural default, (b) actual prejudice as a result of the alleged violation of federal law, or (c) a fundamental miscarriage of justice based on actual innocense. (Dkt. No. 25, at Part III.)
Generally, in his one-page Objection to the Report-Recommendation, Petitioner argues that the district court should review the arresting officer's grand jury testimony and the forged Miranda waiver for due process violations, because a conviction is void if obtained by "fraud, trick[ery][sic] or deception." (Dkt. No. 26.)
II. APPLICABLE LEGAL STANDARDS
A. Standard Governing Review of a Report-Recommendation
When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific, " the objection must, with particularity, "identify  the portions of the proposed findings, recommendations, or report to which it has an objection and  the basis for the objection." N.D.N.Y. L.R. 72.1(c). When performing such a de novo review, "[t]he judge may... receive further evidence...." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance. Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) ("[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) ("In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks omitted).
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review. Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. 
After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the ...