Opinion
97-CV-0333E(F)
September 30, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Salvator Letizia petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2554 on April 29, 1997. An Amended Petition was filed on April 26, 1999. The undersigned referred the matter to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1)(B) for consideration of the merits and legal issues raised by Letizia in his application for post-conviction relief. Judge Foschio filed his Report and Recommendation (the "RR") on April 22, 2003, recommending that Letizia's petition be denied and that the case be dismissed. After obtaining two extensions of time to file objections, Letizia filed his Objections to the RR on August 4, 2003 — three days after they were due to be filed. For the reasons set forth below, this Court overrules such objections and adopts the RR. Accordingly, Letizia's request for habeas corpus relief will be denied and his Petition and Amended Petition will be dismissed.
Petitioner seeks a writ of habeas corpus on the grounds that (1) a letter of remorse authored by petitioner was involuntary because it was tied to a plea that had been withdrawn and because use of the letter at trial violated his Fifth Amendment right against self-incrimination, (2) the prosecutor knowingly used perjured testimony, (3) the judge erroneously instructed the jury, (4) petitioner suffered ineffective assistance of counsel, (5) petitioner was denied the right to testify, as demonstrated by the lack of a colloquy on the record regarding petitioner's right to testify and (6) petitioner received no Sandoval hearing.
People v. Sandoval, 34 N.Y.2d 371 (1974).
Judge Foschio's RR recommended that the Amended Petition be dismissed and that a certificate of appealability be denied. The RR found that: (1) the Appellate Division's finding that petitioner's Fifth Amendment claim lacked merit was neither contrary to nor an unreasonable application of established federal law; (2) there is no evidence that the prosecution knew that any testimony was perjured; (3) the Appellate Division's finding that the allegedly erroneous jury instructions were proper was neither contrary to nor an unreasonable application of established federal law; and (4) there is no merit to petitioner's ineffective assistance claims.
Judge Foschio's RR concluded that no Sandoval hearing was held on May 27, 1988 and that, as a consequence, petitioner had no right to be present at a conference that occurred that day. This Court agrees. Moreover, this Court disagrees with petitioner's suggestion that he was entitled to a Sandoval hearing on the admissibility of his letter of remorse — which involved the crime for which he was charged rather than a prior act. See Mercer v. Herbert, 133 F. Supp.2d 219, 231 n. 14 (W.D.N.Y. 2001) ("A Sandoval hearing is a pretrial hearing where the trial judge makes a determination as to whether any prior convictions or proof of any prior commissions of specific uncharged crimes or bad acts may be admitted into evidence at a criminal trial"). Consequently, petitioner's " Sandoval" claim is rejected.
On May 1, 2003 this Court granted petitioner's request for an extension of time within which to file his objections to Judge Foschio's RR. Petitioner was given until June 20. On June 15, petitioner requested a second extension of time within which to file his objections. By Order dated June 18, this Court extended petitioner's deadline to file objections until August 1. On August 4, 2003 petitioner filed objections to the RR, contending that the RR erroneously ruled that (1) introduction of the letter of remorse did not violate petitioner's Fifth Amendment rights, (2) the prosecutor did not knowingly use perjured testimony, (3) the trial court did not make deficient jury charges and (4) petitioner did not have ineffective counsel.
"Respondent's opposition relies on the grounds that petitioner merely reiterates his claims, which should be denied for the reasons set forth in the RR.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the RR to which no specific objection is raised, so long as such are not clearly erroneous. Moreover, it is entirely within this Court's discretion to adopt the RR where no timely objection has been filed. Consequently, inasmuch as petitioner's objections were filed three days after the deadline (which itself was the product of two extensions that granted petitioner nearly three additional months), this Court will adopt Judge Foschio's RR in its entirety.
528 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 149-150 (1985) (holding that failure to timely object to a magistrate's recommended decision waives any right to further judicial review because section 636(b)(1)(C) does not require any review at all by the district court of an issue that is not objected to).
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.) (holding that habeas corpus petitioner's failure to file timely objections to magistrate judge's report and recommendation barred further judicial review), cert. denied, 506 U.S. 1038 (1992); Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) ("failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision *** [unless the defaulting party is a pro se litigant, in which case untimely objections will only constitute a waiver if the] magistrate's report explicitly states that failure to object to the report within ten (10) days will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and [FRCvP] 72, 6(a) and 6(e)."). Judge Foschio's RR complied with Small.
See Perez v. Bennett, 2000 WL 130619, at *1 (W.D.N.Y. 2000) (noting that this Court had discretion to disregard petitioner's objections because they were filed four days late); Charnock v. McCaffrey, 1995 WL 307633, at *1 (W.D.N.Y. 1995) (noting that one basis for adopting Magistrate Judge Foschio's RR was the fact that petitioner was one day late in filing his objections). Although dated July 31, 2003, petitioner's objections were not served and filed by August 1 as required by this Court's Order dated June 18. Moreover, Letizia failed to demonstrate excusable neglect. See Perez supra, at *1 (receiving untimely objections because petitioner had demonstrated that he had delivered such to prison officials three days before they were due to be filed — thereby demonstrating "reasonable efforts" to comply with a court order); Carmona v. Attorney Gen. of the State of N.Y., 1998 WL 213781, at *3 (S.D.N.Y. 1998) (refusing to receive untimely objections to an RR where party failed to show excusable neglect). Indeed, it was not excusable for petitioner to expect that objections dated July 31 would be served and filed by August 1.
Alternatively, addressing Letizia's objections on the merits, such will nonetheless be overruled because they are merely a reiteration of the arguments raised in his Petition and Amended Petition. Consequently, for the reasons contained in Judge Foschio's exhaustive RR, this Court will overrule Letizia's objections.
Jones v. Keane, 250 F. Supp.2d 217, 223-224 (W.D.N.Y. 2002).
On August 28, this Court overruled petitioner's objections concerning Judge Foschio's denial of petitioner's motion to file another amended petition. On September 16, petitioner filed a request for reconsideration of the August 28 Order. Inasmuch as petitioner's request is without merit, such will be denied.
Accordingly, it is hereby ORDERED that petitioner's untimely Objections are disregarded, that — alternatively — petitioner's Objections are overruled, that Judge Foschio's April 22, 2003 Report and Recommendation is adopted in its entirety, that petitioner's Petition for a writ of habeas corpus and Amended Petition for a writ of habeas corpus are dismissed in their entirety, that petitioner's motion for reconsideration of this Court's Order dated August 28, 2003 is denied, that this case shall be closed and that there is no substantial question presented for appeal and therefore a certificate of appealability will not issue.