Humphrey v. Fisher, No. 9:2007cv01200 - Document 32 (N.D.N.Y 2011)

Court Description: DECISION AND ORDER: ORDERED, that the Court ADOPTS the recommendations made by Magistrate Judge Homer. For the reasons set forth above and as set forth in Magistrate Judge Homer's Report-Recommendation and Order, the petition is DENIED and DISMI SSED. The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed . R.App. P. 22(b). Accordingly, a certificate of appealability will not issue. Petitioner's letter motion for an evidentiary hearing [dkt. # 27 ] is DENIED as moot. Signed by Senior Judge Thomas J. McAvoy on 9/12/11. (Served on petitioner by regular mail) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ HAROLD JOHN HUMPHREY, JR., Petitioner, v. 07-CV-1200 BRIAN FISHER, Defendants. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION & ORDER I. INTRODUCTION This pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was referred to the Hon. David R. Homer, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.4. Magistrate Judge Homer s Report-Recommendation and Order recommends that the petition be denied and dismissed, and that no certificate of appealability be issued. See Rep. Rec. [dkt. # 23]. Petitioner has filed objections and supplemental objections to the ReportRecommendation and Order. See Obj. [dkt. # 24]; Suppl. Obj. [dkt. # 26]. II. STANDARD OF REVIEW When objections to a magistrate judge's report and recommendation are lodged, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. See 28 1 U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997)(The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate's findings.). [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, such that no party be allowed a second bite at the apple by simply relitigating a prior argument. Machicote v. Ercole, 2011 WL 3809920, at * 2 (S.D.N.Y., Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v. 7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same). By the same reasoning, a party may not advance new theories that were not presented to the magistrate judge in an attempt to obtain this second bite at the apple. See Calderon v. Wheeler, 2009 WL 2252241, at *1, n. 1 (N.D.N.Y. July 28, 2009);1 Green v. City of New York, 2010 WL 148128, at * 4 (E.D.N.Y. Jan. 14, 2010)( [N]ew claims . . . presented in the form of, or along with, objections . . . should be dismissed. )(citations omitted). General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 1 As Judge Suddaby noted in Calderon: On de novo review, [t]he judge m ay ... receive further evidence .... 28 U.S.C. § 636(b)(1)(C). However, a district court will ordinarily refuse to consider argum ents, case law and/or evidentiary m aterial that could have been, but was not, presented to the Magistrate Judge in the first instance. See, e.g ., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) ( In objecting to a m agistrate's report before the district court, a party has no right to present further testim ony when it offers no justification for not offering the testim ony at the hearing before the m agistrate. ) [internal quotation m arks and citations om itted]; Pan Am . W orld Airways, Inc. v. Int'l Bhd. of Team sters, 894 F.2d 36, 40, n. 3 (2d Cir.1990) (district court did not abuse its discretion in denying plaintiff's request to present additional testim ony where plaintiff offered no justification for not offering the testim ony at the hearing before the m agistrate ). 2 554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C). III. DISCUSSION With this standard in mind, and after having reviewed Petitioner s objections and supplemental objections, the Court determines to adopt the recommendations for the reasons stated in Magistrate Judge Homer s thorough report. Petitioner has not pointed any error in Magistrate Judge Homer s analysis, and the Court finds that those portions of the Report-Recommendation and Order that Petitioner has chosen to reargue are not clearly erroneous. To the extent Petitioner s objections raise new arguments or theories not presented in the Petition or in the traverse in opposition to the respondent s motion, the arguments or theories are rejected because Petitioner has not provided a valid justification for failing to raise these issues previously. IV. CONCLUSION Therefore, the Court ADOPTS the recommendations made by Magistrate Judge Homer. For the reasons set forth above and as set forth in Magistrate Judge Homer s Report-Recommendation and Order, the petition is DENIED and DISMISSED. The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see Fed. R.App. P. 22(b). Accordingly, a certificate of 3 appealability will not issue. Petitioner s letter motion for an evidentiary hearing [dkt. # 27] is DENIED as moot. IT IS SO ORDERED Dated: September 12, 2011 4

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