Opinion
No. 99 Civ. 11805 (LTS)(JCF)
September 6, 2001
OPINION AND ORDER
The Court has received Magistrate Judge Francis' Report and Recommendation dated December 22, 2000 (the "Report"), which recommends that the Court dismiss Stephen Parker's ("Petitioner") petition for a writ of habeas corpus without prejudice because it contains both exhausted and unexhausted claims. By letter dated December 29, 2000, Petitioner indicated that he did not intend to interpose any objections to the Report; however, on January 16, 2001, Petitioner advised the Court, by letter, that after reviewing the Report, he wished to raise some issues with respect to the Report. The Court adopts the Report to the extent set forth below.
Upon review of a report and recommendation, the district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court is required to review de novo those portions of the Report to which an objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Section 636(b)(1)(C) of Title 28 of the United State Code provides that: "[w]ithin ten days . . . any party may serve and file written objections to such proposed findings and recommendations . . ." 28 U.S.C. § 636(b)(1)(C). Petitioner's December 29, 2000 letter, albeit not an objection, was filed within the period provided for the interposition of objections; however, Petitioner's January 16, 2001 letter was filed after the expiration of such period. The Court will nonetheless consider the issues raised in his January 16, 2001 letter, given that Petitioner is proceeding pro se and in light of his December 29, 2000 efforts to comply with the deadline for objections.
Petitioner's January 16, 2001 submission to the Court, which cites no legal authority, reads in relevant part as follows:
I missed some points about the Brady issue that the courts want to bar, it and I ask the courts not to because, I would like to be heard at the state court first, in my behalf, and to also please preserve it, because it was never review at the state courts, and if this court bar it, this is why I am asking the courts with all due respect, please not bar it, and to please preserve these issues, in my behalf, and also preserve, my issues about being a persisten [sic], felony-offender, because these haven't been review, as if yet, at the state court . . .
(Petitioner's letter dated January 16, 2001 (the "January Letter")). The January Letter contains no further elaboration of Petitioner's objection and consists merely of vague requests that the Court allow Petitioner to present his claims to the state court. "Such a submission cannot be treated as an objection within the meaning of 28 U.S.C. § 636" triggering de novo review. Vargas v. Keane, No. 93 Civ. 7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec. 12, 1994), aff'd, 86 F.3d 1273 (2d Cir.),cert. denied, 519 U.S. 895 (1996). When a petitioner makes only conclusory or general objections, the court reviews the report and recommendation for clear error. Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleadings); Chambrier v. Leonardo, No. 90 Civ. 0173, 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991) (restatement of allegations already before the court and assertion that valid constitutional claim exists insufficient to form specific objections); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691, 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994) (objections stating that magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation); see also Fed.R.Civ.P. 72(b) advisory committee's note (when no specific, written objections are filed, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
Petitioner appears to object Magistrate Judge Francis' determination that Ground Two of his habeas petition, alleging that the prosecution improperly withheld exculpatory evidence, is procedurally barred and cannot be reviewed on the merits absent a proper showing of cause and prejudice. The Court has carefully reviewed the Report, has determined that there is no clear error in Magistrate Judge Francis' thorough analysis, and, based on that analysis, concludes that Petitioner is barred from litigating the merits of Ground Two unless he can demonstrate: 1) cause for the default and resulting prejudice; or 2) that a failure to consider the federal claim will result in a "fundamental miscarriage of justice." Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 (2d Cir. 2000) (citations omitted). The Court further finds that there is no clear error in Magistrate Judge Francis' determination that this claim is as yet unexhausted for the reasons articulated in the Report.
Petitioner also seems to contest the Report's analysis of Ground Four of his habeas petition. In Ground Four, Petitioner claims that he was denied due process of law because he was not given proper notice prior to being sentenced as a persistent felony offender. The Court finds that there is no clear error in Magistrate Judge Francis' conclusion that Ground Four is unexhausted. In view of the facts that Petitioner's habeas petition contains other unexhausted claims and Petitioner has expressed in his January Letter a desire to pursue these and other claims in state court, the Court will dismiss this claim at this point without prejudice although it appears, as noted by Magistrate Judge Francis, that it may be procedurally barred. Petitioner is therefore free to advance in state court his arguments, if any, with respect to Ground Four of the petition.
The Court, having reviewed thoroughly the entire Report, finds no clear error therein in any respect.
In the Report, Magistrate Judge Francis recommended that Petitioner's entire habeas petition be dismissed without prejudice because it contains both exhausted and unexhausted claims. Subsequent to the issuance of this Report, however, the Second Circuit in Zarvela v. Artuz, No. 99-2757, 2001 WL 671762 (2d Cir. June 14, 2001), held that a court presented with a mixed petition, such as the instant one, may exercise its discretion "either to dismiss the petition, or to dismiss only the unexhausted claims and stay the balance of the petition" subject to certain time limitations. Zarvela v. Artuz, No. 99-2757, 2001 WL 671762, at *1 (2d Cir. June 14, 2001). The exercise of such discretion is appropriate, theZarvela Court held, "where an outright dismissal `could jeopardize the timeliness of a collateral attack.'" Zarvela, 2001 WL 671762, at *4 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)). Subsequent to the Zarvela decision, the Supreme Court held in Duncan v. Walker, 531 U.S. 991, 121 5. Ct. 2120 (2001), that the pendency of a federal habeas corpus proceeding does not toll the one-year statute of limitations imposed on state prisoners' habeas corpus proceedings by section 2244(d) of Title 28 of the United States Code. Duncan v. Walker, 531 U.S. 991, 121 5. Ct. 2120, 2129 (2001). The Supreme Court's limitation of the statute's tolling provision to state proceedings counsels in favor of an approach protective of Petitioner's access to federal court.
Accordingly, this Court will exercise its discretion to stay proceedings with respect to Petitioner's exhausted claims, dismissing without prejudice his unexhausted claims. If Petitioner presents the unexhausted claims to the appropriate state courts and returns to this Court within the time limits set forth below, he will be permitted to amend his petition to re-instate the claims and such amendment will relate back to the date of the original petition. See Zarvela, 2001 WL 671762, at *5.
For the reasons set forth in Magistrate Judge Francis' Report, Ground One of the petition is dismissed without prejudice for failure to exhaust state remedies to the extent it asserts a defect in the identification proceeding at the police precinct and that Petitioner's prior failure to raise such defect was due to ineffective assistance of appellate counsel. Ground Two of the petition, relating to exculpatory evidence, is also dismissed without prejudice. The Court does not adopt the Report to the extent it would hold that the state court erred in finding that Petitioner had raised the exculpatory evidence issue in his appeal. Rather, Petitioner is free to argue in state court that he in fact failed to raise such issue on appeal, that such failure was due to ineffective assistance of appellate counsel, and that Justice Sheindlin was incorrect in concluding that Petitioner had previously raised the issue on appeal. (see Report infra at 17.) Grounds Three and Four of the petition are likewise dismissed without prejudice as unexhausted.
Petitioner will be permitted to reinstate these claims by amending his petition following exhaustion of his state remedies if he: 1) initiates the appropriate state proceedings within forty-five (45) days from the date hereof; and 2) applies to this Court to reinstate the claims within forty-five (45) days after the relevant state proceedings have been completed. Cf. Zarvela, 2001 WL 671762, at *5.
Proceedings in this Court are stayed as to the balance of the petition and this case shall be placed on the suspense calendar pending Petitioner's further state proceedings and until further order of the Court.
The Court adopts the Report and Recommendation in all other respects for the reasons stated therein.
The petitioner may not appeal this order to the Court of Appeals, unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 225 3(c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997), cert. denied, 525 U.S. 953 (1998) (discussing the standard for issuing a certificate of appealability). Having thoroughly considered the petition and the Report and Recommendation, the Court finds that the Petitioner will not be able to sustain this burden. Accordingly, the Court declines to issue a certificate of appealability. See Fed.R.App.P. 22(b). In addition, the Court certifies pursuant to section 1915(a)(3) of Title 28 of the United States Code, that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.