Opinion
99 Civ. 11062 (SAS).
April 19, 2002
Freddie Gonzalez, Mid-Orange Correctional Facility, Warwick, NY., Petitioner (Pro Se).
Bruno V. Gioffre, Jr., Assistant Attorney General, State of New York New York, NY., For Respondent.
MEMORANDUM OPINION ORDER
I have reviewed the Report and Recommendation ("R R") of United States Magistrate Judge Henry B. Pitman, dated January 28, 2002, which dismisses the above captioned petition for a writ of habeas corpus. I have also reviewed petitioner's objections to the R R dated February 14, 2002. Respondent has not submitted any objections to the R R.
In his petition, Gonzalez raises the following issues: 1) violation of his right to a speedy trial; and 2) ineffective assistance of trial counsel. In his R R, Magistrate Judge Pitman dismissed petitioner's first claim because it is procedurally barred. In particular, petitioner failed to present a federal speedy trial claim in state court. Because petitioner has already appealed his conviction to the highest state court, he is procedurally barred from litigating the speedy trial issue further. As he has failed to establish cause for and prejudice from his procedural default or that there has been a fundamental miscarriage of justice, his federal speedy trial claim is procedurally barred.
Petitioner did raise a speedy trial claim under state statutory law, see N.Y. Crim. Proc. L. § 30.30(1)(a) ("section 30.30"), but failed to raise such a claim under either the federal or New York State Constitutions.
Magistrate Judge Pitman also dismissed petitioner's second claim as procedurally barred because the state court dismissed the claim on independent and adequate state procedural grounds. In particular, because petitioner did not raise the ineffective assistance of counsel claim on direct appeal, the state court dismissed the claim pursuant to New York Criminal Procedure Law. See N.Y. Crim. Proc. L. § 440.10(2)(c) (stating that the court must dismiss a motion to vacate judgment if the defendant could have raised the issue on direct appeal but failed to do so); see also Arce v. Smith, 889 F.2d 1271 (2d Cir. 1989) (holding that there existed a "fair or substantial basis" under New York state law that the failure to raise the issue of ineffective assistance of counsel on direct appeal is the subject of procedural default). Furthermore, petitioner did not make a showing that there was cause for and prejudice from the procedural bar or that there has been a fundamental miscarriage of justice.
Petitioner concedes that he cannot demonstrate that a fundamental miscarriage of justice would occur if this claim is procedurally barred.See Petitioner's Objection to Report and Recommendation at 3.
Petitioner's objections as to why his federal speedy trial claim should be heard are twofold. First, petitioner contends that he can make a showing of ineffective assistance of appellate counsel regarding that claim. See Petitioner's Objection to Report and Recommendation at 3-4.Second, petitioner objects to dismissal of this claim on the ground that his speedy trial claim on appeal, although based on state law, "calls to mind a specific right protected by the Sixth Amendment of the United States Constitution."Id. at 4. As such, his federal speedy trial claim should be deemed exhausted. Id.
Petitioner's first objection must be dismissed because it was not raised in his original petition, but only in his objections to the Magistrate's Report. See Nelson v. Smith, 618 F. Supp. 1186, 1191 n. 5 (S.D.N.Y. 1985) (stating that where a claim for habeas corpus is first made in the objections to a Magistrate's Report and Recommendation, the court cannot consider the claim). In fact, Magistrate Judge Pitman specifically noted that petitioner had not presented an ineffective assistance of appellate counsel claim. See R R at 13. Accordingly, this objection is dismissed.
If petitioner filed a new petition raising this claim, it would most likely be regarded as a successive petition and would not be allowed. See 28 U.S.C. § 2244(b).
Petitioner's sebond objection must also be dismissed because it offers a new legal argument that was not presented in his original petition, nor in the accompanying Memorandum of Law. See Abu-Nassar v. Elders Futures, Inc., No. 88 Civ. 7906, 1994 WL 445638, at *4 n. 2 (S.D.N.Y. Aug. 17, 1994) (stating that new arguments raised in objections to a Magistrate's Report and Recommendation are untimely). To consider new legal arguments at this point would undermine "the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance additional arguments." Id.; see also Robinson v. Keane, No. 92 Civ. 6090, 1999 WL 459811 at *4 (S.D.N.Y. June 29, 1999). Furthermore, asserting a claim under section 30.30 does not "call to mind a specific right protected by the constitution." Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982) (?J banc); see also Cadilla v. Johnson, 119 F. Supp.2d 366, 374 (holding that where petitioner only brought a speedy trial claim in state court under section 30.30, federal constitutional claims were not invoked and therefore not exhausted for habeas purposes); Gibriano v. Attorney Gen. of the State of New York, 965 F. Supp. 489, 491 (S.D.N.Y. 1997); Jackson v. McClellan, No. 92 Civ. 7217, 1994 WL 75042, at *2 (S.D.N Y Mar. 4, 1994) (same). Thus, the argument presented in this objection also fails on the merits. Therefore, petitioner's second objection is also dismissed.
Accordingly, I hereby accept the thoughtful and thorough Report and Recommendation of Magistrate Judge Henry Pitman in full. Accordingly, the petition is denied and this action is dismissed. Furthermore, no certificate of appealability will be issued for either of the petitioner's claims because he has failed to make a substantial showing that he was denied a constitutional right. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (holding that a substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason; (ii) a court could resolve the issues in a different manner; or (iii) the questions are adequate to deserve encouragement to proceed further), cert. denied, 531 U.S. 873 (2000). The Clerk of the Court is directed to close this case.