UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JERAMIAH BROWN, Plaintiff, 5:22-cv-762 (BKS/TWD) v.
UPS UNITED PARCEL SERVICE INCORP. UPS HeadQuarters, and Robert Milne, Defendants. Appearances: Plaintiff pro se: Jeramiah Brown Theresa, NY 13691 Hon. Brenda K. Sannes, Chief United States District Judge: MEMORANDUM-DECISION AND ORDER I. INTRODUCTION Plaintiff pro se Jeramiah Brown brings this action against Defendants UPS United Parcel Service Incorp. UPS HeadQuarters (“UPS”) and Robert Milne. (Dkt. No. 14). In the Second Amended Complaint (“SAC”), Plaintiff alleges violations of: Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621-634 (“ADEA”); the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA); the Workforce Investment Act, 29 U.S.C. § 2801 et seq. (“WIA”); the Equal Pay Act, 29 U.S.C. § 206 et seq. (“EPA”); the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq. (“GINA”); and the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12101 et seq. (Dkt. No. 14). The SAC was referred to United States Magistrate Judge Thérèse Wiley Dancks who, on March 28, 2023, issued a Report- Recommendation reviewing the SAC under 28 U.S.C. § 1915(e)(2)(b) and recommending that Plaintiff’s SAC be accepted for filing to the extent it asserts claims under Title VII for hostile work environment, discriminatory discharge, and retaliation against Defendant UPS and that Defendant UPS be required to respond to those claims. (Dkt. No. 23, at 9–15). Magistrate Judge
Dancks further recommended that to the extent the SAC asserted Title VII claims against Defendant Milne or any other individual identified in the SAC, such claims be dismissed with prejudice as there is no personal liability under Title VII. (Id. at 23 & n.3). Finally, Magistrate Judge Dancks recommended that all remaining claims be dismissed. (Id. at 15–20). On April 10, 2023, Plaintiff filed objections to the Report-Recommendation. II. STANDARD OF REVIEW This court reviews de novo those portions of the Magistrate Judge’s findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper objection is one that identifies the specific portions of the [report-recommendation] that the objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.
Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (quotation omitted). Properly raised objections must be “specific and clearly aimed at particular findings” in the report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (citation omitted). “[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 . . . .” Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920 at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25, 2011) (citation omitted). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id. III. DISCUSSION As referenced above, Magistrate Judge Dancks recommended that Plaintiff’s Title VII hostile work environment, discriminatory discharge, and retaliation claims proceed and “that a response be required” to those claims. (Dkt. No. 23, at 11–12, 15). In his “Objective,” Plaintiff provides the “Required Response for SAC Asserting three Claims pursuant to Title VII: (1)
Hostile Work Environment (2) Discriminatory Discharge and (3) Retaliation.” (Dkt. No. 24, at 1–7). However, by “response,” Magistrate Judge Dancks meant that a summons should be issued, UPS should be served with the SAC, and UPS should be required to file an answer. No “response” by Plaintiff was required. As Plaintiff’s submission reiterates the substance of his Title VII claim and does not otherwise object to the Report-Recommendation, the Court reviews for clear error only. In recommending dismissal of Plaintiff’s ADA discrimination claim for failure to state a plausible claim for relief, Magistrate Judge Dancks noted that “Plaintiff summarily asserts that he is ‘disabled’ but does not explain how his disability ‘substantially limits a major life activity.’” (Dkt. No. 23, at 20). However, the SAC identifies Plaintiff’s physical impairment; it
alleges that Plaintiff was “born with thrombocytopenia with absent radius” (“TAR”)1 and that he suffered a “Traumatic Brain Injury in 2014.” (Dkt. No. 14, at 3). However, even assuming the allegations regarding Plaintiff’s condition are sufficient to allege disability and that UPS was aware of Plaintiff’s disability, any claim under the ADA fails because, as Magistrate Judge Dancks found, “Plaintiff has failed to plausibly allege that he was ‘otherwise qualified’ for the Personal Seasonal Delivery Driver position with or without reasonable accommodation.” (Dkt.
1 Attached to the SAC is a proclamation by the Mayor of the City of Watertown, New York proclaiming April 2021 to be “TAR Syndrome Awareness Month.” (Dkt. No. 14, at 24). It states that TAR syndrome is characterized by the absence of a bone called the radius in each forearm and a shortage (deficiency) of blood cells involved in clotting (platelets),” that can lead to, among other things, hemorrhages in the brain. (Id.). No. 23, at 20). Plaintiff has not objected to this finding, and having reviewed the remainder of Magistrate Judge Dancks’ analysis for clear error and having found none, the Court adopts Magistrate Judge Dancks’ recommendation that Plaintiff’s ADA discrimination claim be dismissed.
IV. CONCLUSION For these reasons, it is hereby ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 23) is ADOPTED; and it is further ORDERED that Plaintiff’s second amended complaint (Dkt. No. 14) is ACCEPTED for filing to the extent it asserts claims pursuant to the Title VII of the Civil Rights Act alleging a hostile work environment, discriminatory discharge, and retaliation claim against Defendant UPS; and it further ORDERED Plaintiff’s Title VII claims against Defendant UPS SURVIVES initial review and require a response; and it is further ORDERED that Plaintiff’s Title VII claims asserted against Milne and other individuals
identified in the second amended complaint but not listed as defendants are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further ORDERED that all remaining claims be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further ORDERED that the Clerk shall issue a summons for Defendant UPS and forward the summons, along with copies of the Second Amended Complaint, (Dkt. No. 14), the Report- Recommendation (Dkt. No. 23) and this Memorandum-Decision and Order, to the United States Marshal for service upon Defendant UPS. Defendant UPS shall file a response to the Second Amended Complaint as provided for in Rule 12 of the Federal Rules of Civil Procedure. And it is further ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules. IT IS SO ORDERED.
Dated: April 21, 2023 Syracuse, New York
Brenda K. Sannes Chief U.S. District Judge
2011 WL 3809920 challenges under Palzatson v. Kentucky, 476 U.S. 79, 106 2011 WL 3809920 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and preemptory challenges Only the Westlaw citation is currently available. guaranteed by New York state law can not be challenged United States District Court, by federal habeas corpus review; and (3) in-court statements S.D. New York. challenged by Petitioner were not hearsay because they were admitted to establish the witnesses state of mind, and Shawn MACHICOTE, Petitioner, review of the Petitioner's Confrontation Clause claim is v. barred because of procedural default during the state court Robert E. ERCOLE, Superintendent, Respondent. proceedings. Petitioner filed untimely objections to Judge Francis' Report, which the Court will nevertheless consider. No. 06 Civ. 13320(DAB)JCF). | For the reasons set forth below, Judge Francis' Report is Aug. 25, 2011. adopted in its entirety, and Petitioner's Petition for the writ of habeas corpus is HEREBY DENIED. ADOPTION OF REPORT AND RECOMMENDATION DEBORAH A. BATTS, District Judge. IL DISCUSSION! A. Objections to the Report and Recommendation I BACKGROUND “Within fourteen days after being served with a copy *1 Now before the Court is pro se Petitioner Shawn [of a Magistrate Judge's Report and Recommendation], a Machicote's November 20, 2006 Petition for writ of habeas — Patty May serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b) corpus pursuant to □□□ U.S.C. § 2254 (the “Petition”), fa challenging his conviction in New York State Supreme Court, (2); aecor d 28US.C.s 636(6)DO). The court may adopt New York County, for murder in the second degree. Petitioner those portions of the Report to which no timely objection alleges that: (1) his right to due process was violated by the has been made, as long as there is no clear error on the admission into evidence of statements he made to detectives face of the record. Pl witas v. United Parcel Serv. Inc., 262 while incarcerated in North Carolina on unrelated charges; = FSupp.2d 163, 169 (S.D.N.Y.2003). A district court must (2) his rights to a fair trial, due process, and equal protection review de novo “those portions of the report or specified were violated when the trial court overruled defense counsel's □□ proposed findings or recommendations to which objection is preemptory challenges against prospective jurors; and (3) his Pa . . . . . de.” [28 U.S.C. § 636(b)(1)(C). Sixth Amendment right to confront witnesses against him mace 8 (ODO) was violated by the introduction at trial of hearsay statements + 2 “To th hi hat th from a witness. (Report at 1.) On December 8, 2006, the 0 the extent, However, that | ° party makes ony . . conclusory or general arguments, or simply reiterates the Petition was referred to United States Magistrate Judge James . . . Francis IV for a report and recommendation original arguments, the Court will review the Report strictly P for clear error.” Indymac Bank, F.S.B. v. Nat'l Settlement . A , Inc., 2008 WL 4810043, at *1 (S.D.N.Y. Nov.3, Judge Francis' January 18, 2008, Report and BONO, INC a ( ov . 2008); see also Ortiz v. Barkley, 558 F.Supp.2d 444, 451 Recommendation (the “Report”) recommends _ that lap . . (S.D.N.Y.2008) (‘Reviewing courts should review a report Petitioner's habeas corpus Petition be denied. (Report at 1.) . . we and recommendation for clear error where objections are Specifically, Judge Francis recommends that the Petition . . . merely perfunctory responses, argued in an attempt to engage be denied because: (1) statements Petitioner made while : . . . . . the district court in a rehashing of the same arguments set incarcerated in North Carolina were not made under coercion . ce ay es . . □□□ , forth in the original Petition.”) (citation and internal quotation beyond the mere fact of imprisonment, and the state court's . . . . marks omitted). After conducting the appropriate levels of decision to admit those statements was not contrary to, . . tno: . . . review, the Court may accept, reject, or modify, in whole or in and did not involve the unreasonable application of, clearly . . . part, the findings or recommendations made by the Magistrate established federal law; (2) proper procedure was employed by the state court in overruling defense counsel's preemptory —_ Judge. □□□ USS.C. § 636(b)(1)(C).
2011 WL 3809920 146 L.Ed.2d 389 (2000); accord Hoi Man Yung v. Walker, 468 The objections of pro se parties are “generally accorded F.3d 169, 176 (2d Cir.2006); Arnst J. v. Stone, 452 F.3d 186, leniency and should be construed to raise the strongest 193 (2d Cir.2006). The phrase, “clearly established Federal arguments that they suggest.” Howell v. Port Chester Police law,” limits the law governing a habeas Petitioner's claims Station, 2010 WL 930981, at *1 (S.D.N.Y. Mar.15, 2010) “to the holdings, as opposed to the dicta, of [the Supreme] (citation omitted). “Nonetheless, even a pro se party's Court's decisions as of the time of the relevant state-court objections to a Report and Recommendation must be specific ga iion » PllCarey ». Musladin, 549 U.S. 70, 74, 127 S.Ct. and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite 649, 166 L.Ed.2d 482 (2006) (quoting PS yvittiams, 529 US. at the apple by simply relitigating a prior argument.” Id. 4.365): accord) Hawkins v. Costello, 460 F.3d 238, 242 (2d (quoting Pinkney v. Progressive Home Health Servs., 2008 Cir.2006). WL 2811816 (S.D.N.Y. July 21, 2008) (Gnternal quotations marks omitted)). *3 “The ‘unreasonable application’ standard is independent of the ‘contrary to’ standard ... [and] means more than simply On April 29, 2008, Petitioner filed untimely objections ~ an ‘erroneous’ or ‘incorrect’ application” of federal law.” to Judge Francis’ Report (the “Objections”). Reading — Prion y, Poole, 409 F3d 48, 68 (2d Cir2005) (citing Petitioner's letter in the most lenient manner possible. Petitioner objects to Judge Francis' rejection of Petitioner's □□ yittiams, 529 U .S. at 410). A state court decision is Confrontation Clause claim on the grounds that ineffective based on an “unreasonable application” of Supreme Court assistance of counsel cures the procedural default in that | precedent if it correctly identifies the governing legal rule, claim. but applies it in an unreasonable manner to the facts of a particular case. See PS vittiams, 529 U.S. at 413. The inquiry Petitioner did not object to Judge Francis' Report on Miranda for a federal habeas court is not whether the state court's and Batson claims and, accordingly, the Court will review application of the governing law was erroneous or incorrect, these issues only for clear error. Indymac Bank, F.S.B., 2008 WL 4810043, at *1. Because Petitioner objected to Judge but, rather, whether it was “objectively unreasonable.” □□□□ Francis' recommendation on the Confrontation Clause claim, at 408-10; see also Pa Aparicio v. Artuz, 269 F.3d 78, 94 the Court will review that claim de novo. F228 U.s.c, ¢ 2d Cir.2001) CTA] federal habeas court is not empowered 636(b)(1)(C). 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 B. Legal Standard increment of incorrectness such that it may be said to be Under the Anti-Terrorism and Effective Death Penalty Act — unreasonable.”). (“AEDPA”), a federal court may grant habeas relief to a state prisoner only if a state court conviction “resulted ina decision | Moreover, under the AEDPA, “a determination of a factual that was contrary to, or involved an unreasonable application issue made by a State court shall be presumed to be of, clearly established Federal law, as determined by the correct. The [Petitioner] shall have the burden of rebutting Supreme Court of the United States,” Fal, USC. §2254(d) the presumption of correctness by clear and convincing (1), or if it “was based on an unreasonable determination of — evidence.” Paz: ULS.C. § 2254(e) (1); see also Palparsad the facts in light of the evidence presented in the State court Greiner, 37 F.3d 175, 181 (2d Cir.2003) (“This presumption of proceeding.” Pa Id. § 2254(d)(2). correctness is particularly important when reviewing the trial court's assessment of witness credibility.”). A state court's A state court decision is “contrary to” clearly established findings “will not be overturned on factual grounds unless fs . . . objectively unreasonable in light of the evidence presented federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] ona questionoflawor in the state-court proceeding.” Pali ler-El y. Cockrell, 537 if the state court decides a case differently than [the Supreme USS. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Court] has on a set of materially indistinguishable facts.” PS vittiams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495,
2011 WL 3809920 the federal question and adequate to support the judgment.” C. Miranda Claim Judge Francis found that statements Petitioner made while P*Ocouro v. Heber t, 331 F3d 217, 238 (2d Cir.2003) incarcerated in North Carolina were not made under coercion (quoting coleman v. Thompson, 501 U.S. 722, 729, 111 beyond the mere fact of imprisonment, and the state court's §.Ct. 2546, 115 L.Ed.2d 640 (1991). A state procedural bar decision to admit those statements was not contrary to, qualifies as an “ ‘independent and adequate’ state law ground and did not involve the unreasonable application of, clearly where ‘the last state court rendering a judgment in the case established federal law. After reviewing Judge Francis’ clearly and expressly states that its judgment rests on a state findings for clear error on the face of the record, the Court sc a ADOPTS Judge Francis’ recommendation that the Petitioner's procedural bar. Levine v. Commissioner of Correctional Petition for the writ of habeas corpus on this claim be Services, 44 F.3d 121, 126 (2d Cir.1995) (quoting □□ □□□□□□ DENIED. vy. 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 D. Batson Ruling and Peremptory Challenges Claim objection to Ms. Arthur's testimony failed to reference any Judge Francis found that proper procedure was employed by —_ constitutional grounds for the objection. People v. Machicote, the state court in overruling defense counsel's preemptory □□ A_D.3d at 265, 804 N.Y.S.2d at 78 (“To the extent that challenges under PS patson y. Kentucky, 476 U.S. 79, 106 defendant is raising a constitutional claim, such claim is S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that peremptory unpreserved and we decline to review it in the interest of challenges are guaranteed by New York state law, not federal _Justice.”). law, and thus cannot be challenged under federal habeas corpus review. After reviewing Judge Francis’ findings for Under New York's contemporaneous objection rule, an issue clear error on the face of the record, the Court ADOPTS Judge __#8 properly preserved for appellate review only if the party Francis’ recommendation that the Petitioner's Petition for the Taised an objection at tnal. N.Y. C.P.L. § 470.05(2). Even writ of habeas corpus on this claim be DENIED. 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 E. Confrontation Clause Claim specify the constitutional dimension of the objection. E.g., People v. Quails, 55 N.Y.2d 733, 734, 431 N.E.2d 634, 635, . 1. Procedural Default 447 N.YS.2d 149, 150 (1981). “If a state appellate court 4 Judge Francis recommends that Petitioner's refuses to review the merits of a criminal defendant's claim of Confrontation Clause claim be barred because of procedural constitutional error because of his failure to comply with ... a default during the state court proceedings, and even if * contemporaneous objection’ rule, a federal court generally Petitioner's Confrontation Clause claim was not barred, it may not consider the merits of the constitutional claim on would fail on the merits. habeas corpus review.” Pa eterson v. Scully, 896 F.2d 661, Petitioner contends that the admission of Stephanie Arthur's 663 (2d Cir.1990); see also PE vainwright y. Sykes, 433 US. testimony regarding out of court statements identifying Petitioner as the shooter violated his Sixth Amendment right 72, 82-86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); PGar cia 3 vy. Lewis, 188 F.3d 71, 78-79 (2d Cir.1999), to confront witnesses against him.’ The Respondent argues that this claim is procedurally defaulted because the Petitioner Here, Petitioner's trial counsel objected to Ms. Arthur's did not clearly raise it as an objection, on constitutional . . . ' testimony at trial, but counsel made no mention of Petitioner's grounds, during trial. right to confront witnesses, or any constitutional grounds for his objection. Counsel's primary reason for objecting was only A procedural default generally bars a federal court from that Ms. Arthur could not independently identify Petitioner as reviewing the merits of a habeas claim. PE yainwright v, the shooter and that her entire testimony should be stricken on Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). that basis. (Tr. at 43 1-36). Therefore, the Appellate Division's Federal habeas review is prohibited if a state court rests holding that any constitutional clatm was not preserved for its judgment on a state law ground that is “independent of
2011 WL 3809920 review is not contrary to, or an unreasonable application of, Even if the Petitioner's hearsay objection was sufficient to clearly established federal law. raise a Confrontation Clause claim, the claim would also fail on the merits. “It has long been the rule that ‘[s]o long *5 A federal habeas court may not review a prisoner's as ... Statements are not presented for the truth of the matter claim if that claim was procedurally defaulted in state court asserted, but only to establish a context ... the defendant's the vheoae. can ea vod the ent Sixth Amendment rights are not transgressed.’ “ □□ United actua Ba, Ice as a result of the alleged violation of tederal sates v. Paulino, 445 F.3d 211, 216 (2d Cir.2006) (quoting joer oS i United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990)): chowine th (1991), ‘oral; on uranes aly see also Rolland v. Greiner, No. 02 Civ. 8403, 2006 WL Tequires a showing that some external impediment actually — 779591 at *3 (S.D.N.Y. March 27, 2006) (no Confrontation prevented counsel from raising the claim. Pa ecleskey v, Clause violation when court admitted testimony of police Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 detectives about a non-testifying co-defendant's statements (1991); P2Murray v. Carrier, 477 US. 478, 492, 106 S.Ct. ae ene seen for ie pe of “rine what 2639, 91 L.Ed2d 397 (1986). A petitioner suffers actual [2&4 detectives to interview defendant five years after crime). . Since Ms. Arthur's statements were admitted only to show her prejudice if the outcome of the case would likely have been fmind and blish for her identification of different had the alleged constitutional violation not occurred. state o wn ancito establs acontext ornert ent □□□□□□□ 0 the Petitioner, there was no violation of the Petitioner's Sixth See PED Reed y. Ross, 468 USS. 1, 12, 104 S.Ct. 2901, 82 Amendment rights. L.Ed.2d 1 (1984); Trottie v. Mantello, No. 98 Civ. 5581, 1999 WL 187202, at *4 (S.D.N.Y. April 6, 1999). F. Newly Presented Ineffective Assistance of Counsel Claim If the petitioner is unable to meet the cause and prejudice *6 Included with Petitioner's Objections was a copy of standard, his claim may still be heard if he can show a motion to vacate judgment that Petitioner filed in state that failure to consider the claim would result in a court, alleging ineffective assistance of counsel. Ineffective . . , a assistance of counsel can excuse procedural default at the state fundamental miscarriage of justice. Coleman, 501 U.S. . . . . level, but the ineffective assistance of counsel claim must at 750. However, only in an “extraordinary case, where a constitutional violation has probably resulted in the first be presented in state court. See Pa cawards vy. Carpenter, conviction of one who is actually innocent,” will “a federal 529 U.S. 446, 451-454, 120 S.Ct. 1587, 146 L.Ed.2d 518 habeas court grant the writ even in the absence of a showing (2000); Pal nisimone v. Phillips, 461 F.3d 181, 191 Qnd of cause for the procedural default.” Palvurray, 477 U.S. Cir.2006). At the time of his Report, Judge Francis noted a that Petitioner's ineffective assistance of counsel claim was at 496; accord 1 Spence v. Superintendent, Great Meadow . . ‘onal Facility, 219 F3d 162. 170 (2d Cir.2000 procedurally barred because Petitioner did not raise it during orrectional #acily, ° ( " ) the state court proceedings. (Report at 37.) In an effort to . cure that default, Petitioner filed a motion in state court to Here, Petitioner has not shown that either the “cause and . . . . . egy . vacate his judgment on the grounds of ineffective assistance prejudice” or “fundamental miscarriage of justice” exceptions . ' . ly. Petiti tth d prejudice standard of counsel. While Petitioner's state court motion to vacate may apply toner CANO ICSE NS CAUSE ATT prey tee stan ar have cured the procedural default in his ineffective assistance because Petitioner has proffered no compelling explanation for counsel's failure to make a constitutional objection to Ms. of counsel claim ? Petitioner raises this argument for the Arthur's testimony during trial. Nor is this an “extraordinary first time in his Objections, despite the fact that in earlier case” that has clearly “resulted in the conviction of one filings Petitioner specifically denied any claim for ineffective assistance of counsel. (Opp'n to Respondent's Mem. Law at who is actually innocent.” Pal vturray, 477 US. at 496. 2) Consequently, Petitioner's Confrontation Clause claim is barred The Court of Appeals for the Second Circuit has not decided whether a district court must consider a new legal argument 2. Petitioner's Hearsay Claim Fails on the Merits raised for the first time in obj ections 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,
2011 WL 3809920 at *2 (D. Vermont), adopts the 11th Circuit's approach tonew — and (2) actual prejudice to the defense. PS stricktand □□ legal arguments, as described in Pa yittiams vy, McNeil, 557 Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 LEd2d 674 1287, 1291 (11th Cir.2009) (holding that in order to (1984). Petitioner would need to show that trial counsel's preserve the efficiencies afforded by the Magistrates Act, a conduct fell “outside the range of professionally competent district court has discretion to decline to consider a party's assistance” and that “there is a reasonable probability argument when that argument was not first presented to the that, but for counsel's unprofessional errors, the result magistrate judge.).° of the proceeding would have been different.” □□□□ at 694. Petitioner's state court motion to vacate judgment for Applying this standard here, the Court finds that it does ineffective assistance of counsel was denied, and it would be not need to address Petitioner's new legal argument because: denied here as well. The record shows zealous representation (1) Petitioner did not make an ineffective assistance of of Petitioner by counsel at trial, and there is no indication counsel argument before Judge Francis when he had the that counsel's failure to object to Ms. Arthur's testimony opportunity to do so; (2) the record indicates that Petitioner 08 constitutional grounds resulted in actual prejudice as the was satisfied with counsel; (3) Petitioner only attempted to claim would still fail on the merits because the challenged bring an ineffective assistance of counsel claim after it was Statements by Ms. Arthur were not hearsay. See supra. suggested in Judge Francis' Report as a possible cure to cure his Confrontation Clause claim's procedural default; (4) the Thus, the Court declines to consider Petitioner's ineffective Court is unaware of any intervening case or statute that has assistance of counsel claim raised for the first time in changed the state of the law regarding procedural default or Petitioner's Objections to Judge Francis’ Report. 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 HIE Conclusion in favor of not considering Petitioner's new legal argument as it would effectively eliminate any efficiencies gained through = Having reviewed the January 18, 2008, Report and the Magistrates Act and would unfairly benefit Petitioner who |= Recommendation of Magistrate Judge James C. Francis [V changed his tactics after issuance of the magistrate judge's for clear error on the first two claims, and de novo on the Report and Recommendation. See paterson-Leitch Co. v. third claim, the Court HEREBY APPROVES, ADOPTS, and Mass. Mun. Wholesale Elec. Co., 840 F2d 985, 990-91 (Ist RATIFIES the Report in its entirety, and Petitioner's Petition Cir.1988) (“an unsuccessful party is not entitled as of right to for the writ of habeas corpus is DENIED. The Clerk of the . . Court is directed to close the docket in this case. de novo review by the judge of an argument never seasonably raised before the magistrate.”) SO ORDERED. *7 Finally, no manifest injustice will result by the Court declining to consider Petitioner's new argument. To prevail aq] Citations on an ineffective assistance of trial counsel claim, Petitioner must show: (1) that counsel's performance was deficient; | Not Reported in F.Supp.2d, 2011 WL 3809920
Footnotes
1 The Factual Background is set forth in detail in Judge Francis’ Report and will not be reiterated here. (Report at 2-15.) 2 After being granted several extensions, Petitioner filed his Objections one day late, on April 29, 2008. Attached to his Objections was a copy of Petitioner's motion to vacate judgment pursuant to New York State C.P.L. § 440.1 that Petitioner filed in New York State Supreme Court. Petitioner requested a delay in ruling on the Report so that the state court could rule on his motion to vacate. On December 8, 2009, Petititioner wrote
of New York, New York County, denied Petitioner's motion under § 440.1 and there is no record of Petitioner appealing this decision. 3 Ms. Arthur was one of two witnesses that witnessed the shooting, but did not inform the authorities of what she saw until several months later. During trial, Ms. Arthur testified that she “didn't see him [Mr. Machicote] shoot the guy, but after a while, after I heard that it was the guy Shawn in the rap video, I put two and two together.” (Tr.(2) at 431.) Defense counsel objected to the testimony of Ms. Arthur because she was “not testifying from her recollection,” but instead from what she had heard from others. (Tr.(2) at 431–32.) The court refused to strike Ms. Arthur's testimony on this point, but instructed the jury that what Ms. Arthur heard from others was admissible only insofar as it informed her mental state. (Tr.(2) at 437.) At that point, Mr. Petitioner's counsel moved for a mistrial, but the trial judge denied the motion. (Tr.(2) at 437.) 4 On June 30, 2008, Petitioner's state court motion to vacate judgment for ineffective assistance of counsel was denied because “defense counsel's representation, in the Court's view, was of a far higher level of effectiveness and competence than the minimal constitutional standard.” People v. Machicote, No. 11169– 94, denial of motion to vacate at 8 (N.Y.Sup.Ct.N.Y.Cnty.Crim.Term, Jan. 16, 2009). This Court can find no record of an appeal of the decision denying Petitioners motion to vacate. 5 The District Court of Vermont laid out a six factor test for determining if any new arguments should be allowed. Wells Fargo, 2010 WL 297830, at *3: “(1) the reason for the litigant's previous failure to raise the new legal argument; (2) whether an intervening case or statute has changed the state of the law; (3) whether the new issue is a pure issue of law for which no additional fact-finding is required; (4) whether the resolution of the new legal issue is not open to serious question; (5) whether efficiency and fairness militate in favor or against consideration of the new argument; and (6) whether manifest injustice will result if the new argument is not considered.” End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.