MIXON v. BENNETT

JUDGE JOHN T. ELFVIN

Petitioner Charlie Mixon filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the undersigned referred this matter to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1)(B) for a determination of the merits and legal issues raised by petitioner in has application for post-conviction relief. After Judge Heckman had filed her Report and Recommendation ("the R R") September 8, 1999 recommending that the petition be denied, petitioner filed has Objections to such November 2, 1999. For the reasons set forth below, this Court overrules such objections and adopts the RR.

While familiarity with the facts is presumed, the relevant details are presented. After a mistrial had been declared in has first New York State Supreme Court trial, petitioner was in a second trial convicted of second degree murder and arson in the deaths of has ex-wife and their two adopted children. The conviction was affirmed by the Fourth Department of the New York Supreme Court Appellate Division. Petitioner raised eight grounds for relief in has petition and now objects to the adverse findings by the magistrate judge on each issue.

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge" and may adopt those parts of the R R to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1)(C); see also Thomas v. Arn, 474 U.S. 140, 149 (1985); Black v. Walker, No. 97-CV-0668E(H), 2000 WL 461106, at *1 (W.D.N.Y. 2000) (citing Moore v. Scully, 956 F. Supp. 1139, 1142-1143 (S.D.N.Y. 1997). The undersigned must make a de novo determination with respect to those portions of the R R to which specific objections are made. See 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 675-676 (1980). It is entirely within the province of this Court to adopt the portions of the R R to which no specific objection is made as long as such are not clearly erroneous.

In has objections to the R R, petitioner alleges that, in general and with respect to no less than seventeen particular findings, it is "based without de novo review which denied petitioner has Fifth and Fourteenth Amendment rights and the right to a fair trial." Objections to Magistrates [ sic] Report and Recommendation at ¶¶ 1, 5-21. Two objections are sufficiently specific as to merit analysis from this Court while the others are not specific enough to warrant de novo review.

First, petitioner objects to the magistrate judge's finding that there is no reasonable probability that the result of the trial would have been different had his counsel used information contained in handwritten notes of the laboratory technicians. Objections ¶ 6. Although both the trial court and the magistrate judge found that the prosecution did not violate Brady v. Maryland, petitioner objects and argues that such material was exculpatory yet not provided to the defense and that there was in fact a reasonable probability that the result of the trial would have been different had the handwritten notes been turned over. Petitioner has not explained what part of the handwritten material contradicts or casts doubt on the final, typed reports and has not even pointed to particular parts of the material that would tend to be exculpatory. The record also shows that the defense was afforded open-file discovery by the prosecutor. See Memorandum and Order, Apr. 25, 1997, Ex. D to State Court Records, at 4-5. In sum, the undersigned finds on de novo review that petitioner is not entitled to relief on this ground.

Second, petitioner objects to the admission of the prosecution's evidence of has so-called "prior bad acts." Objections ¶ 15 and pp. 20-22. This identical claim was presented to, and rejected by, the Fourth Department. See People v. Mixon, 611 N.Y.S.2d 723, 724-725 (App.Div. 4th Dep't 1994). Petitioner now objects to the magistrate judge's finding on this issue. The Fourth Department and magistrate judge found that the testimonial evidence was admissible to establish motive in this case. In has objections, petitioner fails to point to a specific part of the testimony that does not fall within the realm of evidence relevant to petitioner's motive. The undersigned finds on de novo review that petitioner is not entitled to relief on this ground.

Petitioner's further objections are not specific in showing how the magistrate judge's findings were erroneous or how the law was misapplied to the facts of the instant case. Further, he has not presented case law on point that was ignored by the magistrate judge. The undersigned has given thorough and careful consideration to each of the petitioner's claims and rejects them for reasons the undersigned finds decisive, according to and with Judge Heckman's Recommendation. A careful review of the magistrate judge's analysis reveals no clear error.

Accordingly, it is hereby ORDERED that petitioner's objections are overruled, that the Report and Recommendation filed September 8, 1999 is adopted in its entirety, that the petition for a writ of habeas corpus is denied and that this case shall be closed. Inasmuch as there is no substantial showing by petitioner of the denial of a constitutional right, the Court declines to issue a certificate of appealability and certifies that any appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915.