The opinion
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.”
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