Opinion
02-CV-0713E(Sc).
June 21, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Placido Buscemi — who is currently incarcerated in the Buffalo Federal Detention Facility ("BFDF") in Batavia, N.Y. pursuant to a criminal indictment charging that he illegally reentered the United States of America after having been deported — petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3) on October 4, 2002. Mulè filed a motion to dismiss the petition on December 6, 2002. An Amended Petition was filed on December 26, 2002. The undersigned referred the matter to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. § 636(b)(1)(B) for consideration of the merits and legal issues raised in Mulè's motion to dismiss. Judge Scott filed his Report and Recommendation ("RR") on September 26, 2003, recommending that Mulè's motion to dismiss be granted in part and denied in part. After obtaining an extension of time to file objections, Buscemi filed his Objections to the RR on October 31, 2003. For the reasons set forth below, this Court overrules such objections and adopts the RR. Accordingly, Mulè's motion to dismiss will be granted in part and denied in part.
Respondents never filed any opposition to Buscemi's request to file an Amended Petition. This Court will consider Buscemi's Amended Petition (docket #8) as filed nunc pro tunc on December 26, 2002. The Amended Petition did not alter the substance of Mulè's motion to dismiss. Indeed, the Amended Petition simply withdrew Buscemi's derivative citizenship claim.
Buscemi is an Italian citizen who entered the United States with his parents in 1970 as an immigrant. He subsequently became a permanent resident. Buscemi was deported to Italy in 1987 after being convicted of a violent felony. After his deportation, Buscemi reentered the United States without the knowledge or consent of the Immigration and Naturalization Service ("INS"). During this time, Buscemi was arrested several times for various offenses of New York's Penal Code and was eventually incarcerated in a New York State Correctional Facility. On June 9, 1997 the INS learned that Buscemi had reentered the United States and that he was incarcerated at the Gowanda Correctional Facility ("GCF") in Gowanda, N.Y. An INS detainer was placed on Buscemi while he was an inmate at the GCF. On February 12, 1998 Buscemi was arrested and charged with illegally reentering the United States after a prior deportation without having obtained the proper authorization from the United States Attorney General, a violation of 8 U.S.C. § 1326(a). A grand jury indicted Buscemi for this offense on February 19, 1998 ("the first indictment"). Buscemi was incarcerated at the BFDF pending disposition of the first indictment.
On October 4, 2002 Buscemi filed a petition for a writ of habeas corpus seeking relief on the grounds that (1) he should have been granted United States citizenship because his mother had been granted citizenship by the INS, (2) his pre-trial detention exceeded the maximum possible term of imprisonment if he was found guilty of the indicted offense and (3) the first indictment should have been dismissed for violations of the Speedy Trial Act, 18 U.S.C. §§ 3161(b), (c)(1). On December 26, 2002 Buscemi filed a request to file an Amended Petition that would eliminate his derivative citizenship claim while reiterating the other two claims of his original petition.
During the pendency of his habeas petition, Buscemi made a motion to dismiss the first indictment in his criminal proceedings. The undersigned dismissed the first indictment without prejudice in a Memorandum and Order dated September 4, 2003 on the ground that Buscemi's right to a speedy trial pursuant to 18 U.S.C. § 3161(c)(1) had been violated. Buscemi was subsequently indicted a second time on September 5, 2003 ("the second indictment") for the same offense that had given rise to the first indictment. Buscemi's criminal case is ongoing.
Mulè made a motion to dismiss the Petition on the grounds that this Court lacked jurisdiction over Buscemi's claims and, alternatively, that this Court should not address Buscemi's claim that the first indictment should have been dismissed on the ground that he is a United States citizen because the Court had previously addressed such argument. Judge Scott's RR found that (1) the Court has jurisdiction over the habeas petition and (2) Buscemi's derivative citizenship claim should be dismissed because it was successive under 28 U.S.C. § 2244(b). The RR, however, did not address the alleged violations of the Speedy Trial Act or the effect of the second indictment on Buscemi's claims because Mulè had not addressed those issues in his motion to dismiss. Buscemi objected to the RR on two grounds; he also objected to this Court's dismissal of the first indictment in his criminal case. First, he contends that Judge Scott erred by not finding that Mulè filed an untimely motion to dismiss, which also failed to address all issues in his petition, thereby constituting a default pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure ("FRCvP") and thus entitling him to summary judgment pursuant to FRCvP 56(a). Second, Buscemi contends that Judge Scott failed to address the Speedy Trial Act claims and the claim that his pre-trial detention exceeds the maximum sentence. Additionally, although not an objection to the RR, Buscemi contends that this Court erred by declining to dismiss Buscemi's first indictment with prejudice.
In Buscemi's criminal proceedings, this Court denied his motion to dismiss the first indictment on the grounds that he was a United States citizen in a Decision and Order dated November 3, 1998.
Buscemi's derivative citizenship claim was deemed successive because it had already been presented in a prior habeas corpus petition filed by his mother in the Eastern District of New York on September 16, 2002.
RR, at 2.
Buscemi's Objs., at 2-3.
Buscemi's Objs., at 3.
Buscemi's Objs., at 4-10.
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. 28 U.S.C. § 636(b)(1)(C). It is entirely within the province of this Court to adopt the portions of the R R to which no specific objection has been raised. Buscemi has not objected to Judge Scott's determination that the petition's derivative citizenship claims should be dismissed as being successive under 28 U.S.C. § 2244(b). Accordingly, this Court adopts the RR's determination with respect to such.
See also 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 by the district court of an issue that is not objected to in a timely manner); U.S. v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997) (same); Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002) ("Objections to either the magistrate judge's order or recommendation must be filed within ten days of service in order to receive review from the district court * * *. [F]ailure to object to a magistrate judge's decision or recommendation generally forfeits the right to present those objections for appellate review.").
See Black v. Walker, 2000 WL 461106, at*1 (W.D.N.Y. 2000).
Indeed, Buscemi's proposed Amended Petition would withdraw such a claim.
The undersigned must make a de novo determination with respect to those portions of the RR to which specific objections have been made. With respect to Buscemi's first objection, the undersigned concludes that Judge Scott was not in error because Mulè's motion to dismiss was timely. Mulè had 45 days from the service of the undersigned's October 9, 2002 Memorandum and Order ("October 9, 2002 Order"), which was filed on October 17, to file an answer to the habeas petition or a motion to dismiss. When service of an order is made by mail, FRCvP 6(e) provides that three days shall be added to the order's prescribed period to act. Mulè's motion to dismiss was timely because it was filed on December 6, 2002, which was within the time allowed by the FRCvP because the October 9, 2002 Order required a response 45 days after respondents had been served with such order. Buscemi provided no evidence regarding when the respondents were served with the October 9, 2002 Order. Assuming arguendo that the respondents were served, at the earliest, on the day that such order was entered on the docket on October 21, 2002, their motion to dismiss was timely under FRCvP 6(e). Furthermore, Mulè was not required to respond to every ground raised by Buscemi in the motion to dismiss; only in an answer would Mulè be required to do so. Thus, Mulè was not in default as Buscemi contends and, therefore, Buscemi is not entitled to summary judgment for the reasons argued. Accordingly, Buscemi's objection on this ground is without merit and will be overruled.
28 U.S.C. § 636(b)(1)(C); United States v. Raddatz, 447 U.S. 667, 675-676 (1980); Sieteski v. Kuhlmann, 2000 WL 744112, at *1 (W.D.N.Y. 2000).
The pertinent part of the October 9, 2002 Memorandum and Order instructs Mulè to "file an answer to the petition * * * which shall respond to the allegations of the application * * *. Alternatively, in the appropriate case, [Mulè] may [file] a motion to dismiss the application, accompanied by pertinent exhibits which demonstrate that an answer to the application is unnecessary, by no later than 45 days from service of this order." October 9, 2002 Order, at 1-2.
With respect to Buscemi's objection that Judge Scott failed to address the Speedy Trial Act claims and the claim that his pre-trial detention exceeds the maximum sentence, the undersigned concludes that Judge Scott did not err in declining to address those claims in the RR. The scope of Mulè's motion was limited to (1) whether jurisdiction exists over Buscemi's claims and (2) whether Buscemi's derivative citizenship claim was previously decided. As such, Judge Scott did not err by declining to address issues not raised by Mulè's motion to dismiss. Accordingly, Buscemi's objection on this ground is without merit and will be overruled.
As part of Buscemi's objections to the RR, Buscemi includes an appeal regarding the dismissal of his first criminal indictment, arguing that the undersigned erred in not dismissing the first indictment with prejudice. This objection will be overruled because a petition for habeas corpus cannot be used as a substitute for a direct appeal. In any event, Buscemi would lack standing to appeal the dismissal of the first indictment because "he is not legally aggrieved by the termination of the prosecution." United States v. Reale, 834 F.2d 281, 282 (2d Cir. 1987). This holds true even when the dismissal is without prejudice and allows for a defendant to be further prosecuted. Ibid. Only if Buscemi was convicted on the second indictment could he raise, on appeal of the conviction, whether dismissal of the first indictment should have been with prejudice. Ibid. Accordingly, Buscemi's objection on this ground is without merit and will be overruled.
The first criminal indictment was dismissed without prejudice by the undersigned in a September 4, 2003 Order in Buscemi's criminal proceedings because of a violation of the Speedy Trial Act.
Marone v. U.S., 10 F.3d 65, 67 (2d Cir. 1993); United States v. Gonzalez, 2001 WL 987866, at *2-3 (S.D.N.Y. 2001).
Accordingly, it is hereby ORDERED that Buscemi's objections are overruled, that Judge Scott's Report and Recommendation filed on September 26, 2003 is adopted in its entirety, that Mulè's motion to dismiss is denied as to the jurisdiction claim and granted as to the derivative citizenship claim and that Buscemi's request to file an Amended Petition is granted such that his Amended Petition (docket #8) is filed nunc pro tunc as of December 26, 2002.