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dismissing new claims presented in the form of, or along with, objections to magistrate judge's report and recommendation
Summary of this case from Sasmor v. PowellOpinion
08 Civ. 4736 (LTS) (KNF).
June 22, 2009
SUPPLEMENTAL REPORT and RECOMMENDATION
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
The undersigned considered previously the claims raised by Richard Pierce ("Pierce"), in his pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254, and issued a report recommending Pierce's petition be denied. The petitioner objected to the report and recommendation and raised new claims, about ineffective assistance rendered to Pierce by his trial counsel. This supplemental report and recommendation responds to your Honor's request that the undersigned recommend how to address these new claims for relief.
Fed.R.Civ.P. 72(b)(2) provides: "[w]ithin 10 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Further, Fed.R.Civ.P. 72(b)(3) directs the district judge to review only the "part of the magistrate judge's disposition that has been properly objected to." Rule 72(b) does not provide that new claims may be raised in objections to a report and recommendation. Moreover, since new claims may not be raised properly at this late juncture, the petitioner's new claims, presented in the form of, or along with, "objections," should be dismissed. See e.g.,Gonzalez v. Garvin, No. 99 Civ. 11062, 2002 WL 655164, at *2 (S.D.N.Y. Apr. 22, 2002) (dismissing the petitioner's objection "because it offers a new legal argument that was not presented in his original petition, nor in the accompanying Memorandum of Law") (citing Abu-Nassar v. Elders Futures, Inc., No. 88 Civ. 7906, 1994 WL 445638, at *4 n. 2 [S.D.N.Y. Aug. 17, 1994]) (providing that new arguments, presented within a party's objections to a Report and Recommendation, are untimely, and consideration of such claims would "undermine the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance additional arguments").
RECOMMENDATION
For the reasons set forth above, I recommend that the new claims raised in Pierce's objections to the report, recommending denial of the petition for a writ of habeas corpus, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura T. Swain, 500 Pearl Street, Room 755, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).