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Mosley v. Superintendent of Collins Corr. Facility

United States District Court, Northern District of New York

January 22, 2015

MANUEL MOSLEY, Petitioner,
v.
SUPERINTENDENT OF COLLINS CORR. FACILITY, Respondent.

MANUEL MOSLEY, 07-A-0302 Petitioner, Pro Se Marcy Correctional Facility

HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York LEILANA J. RODRIGUEZ, ESQ. Assistant Attorney General Counsel for Respondent

DECISION AND ORDER

GLENN T. SUDDABY, United States District Judge

Currently before the Court, in this habeas corpus proceeding filed pro se by Manuel Mosley (“Petitioner”) against a correctional facility superintendent (“Superintendent”) pursuant to 28 U.S.C. § 2254, are (1) United States Magistrate Judge Randolph F. Treece’s Report-Recommendation recommending that Petitioner’s Petition be denied and dismissed in its entirety and that a certificate of appealability not issue, and (2) Petitioner’s Objection to the Report- Recommendation. (Dkt. Nos. 19, 23.)[1] For the reasons set forth below, Magistrate Judge Treece’s Report-Recommendation is accepted and adopted 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 2007 state-court conviction for the criminal sale of a controlled substance in the third degree and attempted assault in the second degree, but will simply refer the parties to the relevant portion of Magistrate Judge Treece’s Report-Recommendation, which accurately recites that factual background. (Dkt. No. 19, at Part I.)

Generally, in his Petition, Petitioner asserts four claims: (1) a claim that the trial court lacked jurisdiction and authority to resentence him as a second felony offender; (2) a claim that the Appellate Division’s decision affirming his resentencing contradicted an earlier decision it had issued in his case; (3) a claim that he was subjected to double jeopardy when he was resentenced as a second felony offender; and (4) a claim that his sentence was harsh and excessive. (See generally Dkt. No. 1.)

Generally, in his Report-Recommendation, Magistrate Judge Treece recommends dismissal of the Petition for four reasons: (1) with respect to Petitioner’s claim that the trial court lacked jurisdiction and authority to resentence him as a second felony offender, the claim lacks merit because it regards purely an issue of state law and does not rise to the level of a federal constitutional violation, given that he received (a) adequate notice that he was subject to resentencing as a second felony offender, and (b) an opportunity to be heard on the constitutionality or validity of his first felony conviction); (2) with respect to Petitioner’s claim that the Appellate Division’s decision affirming his resentencing contradicted an earlier decision it had issued in his case, the claim lacks merit because the two decisions were not contradictory in that (a) the first decision found merely that the trial court had improperly sentenced Petitioner as a second felony offender without first giving him an opportunity to contest the constitutionality or validity of his prior felony conviction, while (b) the second decision found that on remand Petitioner had failed to challenge the constitutionality or validity of his prior felony conviction); (3) with respect to Petitioner’s claim that he was subjected to double jeopardy when he was resentenced as a second felony offender, the claim lacks merit because Petitioner had no legitimate expectation that his initial sentence (which never adjudicated him as a predicate felon and was thus illegal) would be final; and (4) with respect to Petitioner’s claim that his sentence was harsh and excessive, the claim lacks merit because the sentence was within the permissible range provided for by state law. (Dkt. No. 19.)

Generally, in his Objection, Petitioner asserts three arguments: (1) that his federal right to due process was violated because, contrary to the terms of the Appellate Division’s remand, the trial court vacated his plea agreement then resentenced him as a second felony offender over his objection; (2) that a double jeopardy violation occurred because the trial court resentenced him as a second felony offender after he had been sentenced as a first-time felony offender and judgment had been entered; and (3) that his sentence of eleven years on resentencing was harsh and excessive because the maximum sentence under state law is nine years for first-time felony offenders. (Dkt. No. 23.)

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 report-recommendation, 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 [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).[2] 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.[3] 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.[4] 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.[5]

After conducting the appropriate 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).

B. Standard Governing Review of Habeas Petition Pursuant to 28 U.S.C. § 2254

Again, because this Decision and Order is intended primarily for the review of the parties, the Court will not repeat the legal standard governing Petitioner’s habeas petition pursuant to 28 U.S.C. § 2254, but will simply refer the parties to the relevant portion of Magistrate Judge Treece’s Report-Recommendation, which accurately recites that legal standard. (Dkt. No. 18, at Part II.A.)

III. ANALYSIS

After carefully reviewing all of the papers in this action, the Court agrees with each of the recommendations made by Magistrate Judge Treece. Magistrate Judge Treece employed the correct legal standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 19, at Parts I-III.) As a result, the Court accepts and adopts Magistrate Judge Treece’s Report-Recommendation in its entirety for the reasons stated therein. (Id.)

The Court would add only one point. Even when construed with the utmost of liberality, Petitioner’s Objection fails to contain a specific challenge to the Report-Recommendation that differs from the arguments he asserted in his Petition and Traverse. (Compare Dkt. No. 23 [Objection] with Dkt. No. 19 [Report-Recommendation] and Dkt. No. 1 [Petition] and Dkt. No. 11 [Traverse].) As a result, he is entitled to only a clear-error review of Magistrate Judge Treece’s Report-Recommendation (which level of review the Report-Recommendation survives). The Court notes that, even if the Report-Recommendation were subjected to a de novo review, the Report-Recommendation would survive that review.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 19) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Petitioner’s Petition (Dkt. No. 1) is DENIED and DISMISSED in its entirety; and it is further

ORDERED that the Clerk of the Court shall amend the docket sheet in accordance with footnote 1 of this Decision and Order, and then CLOSE this action; and it is further

ORDERED that a certificate of appealability shall not issue with respect to any of the claims set forth in the Petition, because Petitioner has not made a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2).


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