UNITED STATES DISTRICT COURT UDSODCCU MSDENNYT SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED DOC #: MARVIN HOLMES, DATE FILED: 11/20/ 2023 Plaintiff, 1:22-cv-06388-MKV -against- ORDER DENYING MOTION FOR MARK MILLER, Superintendent, Green Haven RECONSIDERATION Correctional Facility, Defendants. MARY KAY VYSKOCIL, United States District Judge: Marvin Holmes (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to

on July 26, 2022. [ECF No. 2]. On January 17, 2023, the Court referred the petition to Magistrate Judge Sarah Netburn. [ECF No. 13]. On July 11, 2023, Magistrate Judge Netburn issued a Report and Recommendation (“R&R”) recommending that the Court deny the petition in its entirety, decline to issue a certificate of appealability, and certify pursuant to

(a) that any appeal would not be taken in good faith. [ECF No. 15]. A copy of the R&R was mailed to Petitioner on July 12, 2023. On August 8, 2023, following the statutory fourteen-day period to file objections, during which no party filed objections, and after careful review of the petition and the R&R and finding no clear error, the Court adopted the R&R in its entirety as the opinion of the Court. [ECF No. 16 (“Order”)]. The Court denied the habeas petition, denied a certificate of appealability, and certified pursuant to

(a)(3) that any appeal would not be taken in good faith and therefore denied in forma pauperis status for the purpose of an appeal. A copy of the Court’s Order was mailed to Petitioner on August 9, 2023. Later on the same day the Court issued its Order, Petitioner filed untimely objections to the R&R. [ECF No. 18 (“Pet. Obj.”)]. Thereafter, on August 25, 2023, Petitioner filed a motion for reconsideration of the Court’s Order and judgment denying his habeas petition. [ECF No. 19 (“Pet. Mot.”)]. On August 31, 2023, Petitioner filed a notice of appeal from the Court’s Order.1 [ECF No. 20]. Under Federal Rule of Civil Procedure 72(b)(2), a party may, within fourteen days, “serve and file specific written objections to the proposed findings and recommendations” of a magistrate

judge. Fed. R. Civ. P. 72(b)(2). Three additional days are added to the fourteen-day period when, as here, the plaintiff is served with the R&R by mail. See Fed. R. Civ. P. 6(d). Here, Petitioner’s objections were untimely, having been filed twenty-eight days after the R&R was issued.2 “[F]ailure to object timely to a magistrate’s report operates as a waiver of any further judicial review of the magistrate’s decision.” F.D.I.C. v. Hillcrest Assocs.,

, 569 (2d Cir. 1995). Therefore, even when untimely objections to a magistrate judge’s R&R are received before a district court issues an order adopting the R&R, the district court may still review the R&R for clear error. See Silver v. Salessandro, No. 15CV3462ARRST,

, at *1 (E.D.N.Y. Nov. 20, 2019) (reviewing R&R for clear error, despite untimely objections received

from pro se plaintiff); Ramon v. Corp. City of New York, No. 17-CV-2307(KAM),

, at *2 n.4 (E.D.N.Y. Mar. 21, 2019). However, the Court may extend special solicitude to pro se litigants, including where, for example, a party made efforts to timely file objections to an R&R notwithstanding his status as an incarcerated, pro se litigant. See, e.g., Blunt v. Perez, No. 14CIV2333ATGWG,

, at *1 (S.D.N.Y. Apr. 18, 2019) (considering untimely objections to R&R when mailed

1 Petitioner’s notice of appeal does not deprive the Court of jurisdiction to consider his motion for reconsideration. See Fed. R. App. P. 4(a)(iv). 2 Petitioner’s motion for reconsideration was timely, having been filed seventeen days after the Court’s Order and entry of judgment. See Local Civil Rule 6.3 (providing for fourteen days in which to move for reconsideration); Fed. R. Civ. P. 6(d) (adding three days to the time to file motion papers where service is made by mail). by pro se party within statutory period). Petitioner claims in his motion for reconsideration that he received the Court’s Order and judgment by mail on July 17, 2023. See Pet. Mot. 5. His objections to the R&R were notarized on July 28, 2023, within the applicable statutory timeframe. See Pet. Obj. 12. However, Petitioner’s objections were not postmarked until August 1, 2023. See

. Nonetheless, affording Petitioner the special solicitude due pro se parties, the Court will

consider Petitioner’s untimely objections to the R&R on his motion for reconsideration. See, e.g., United States v. Crawford-Bey, No. 1:08-CR-00029-JGM-1,

, at *1 (D. Vt. May 5, 2014) (permitting pro se petitioner to file a motion for reconsideration in the alternative to untimely objections to an R&R). When specific objections are made to an R&R, “[t]he district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see Phillips v. Reed Grp., Ltd.,

(S.D.N.Y. 2013). “However, objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition will not suffice to invoke de

novo review of the magistrate’s recommendations.” Vega v. Artuz, No. 97CIV.3775LTSJCF,

, at *1 (S.D.N.Y. Sept. 30, 2002). In such a case, a district court need only find that there is no clear error to adopt the R&R. See Rajapakse v. Shaw, No. 20-CV-10473 (VEC),

, at *2 (S.D.N.Y. Apr. 13, 2022). Here, Petitioner’s objections simply rehash arguments that he set forth in his original habeas petition. Petitioner objects to the R&R on the basis that (1) DNA found at the crime scene was exculpatory; (2) the identity of the DNA was crucial for impeachment purposes; (3) the DNA was Brady material that should have been disclosed; (4) failure to disclose the alleged Brady material deprived Petitioner of due process; and (5) Petitioner’s inability to present the DNA evidence resulted in an unfair trial in violation of due process. Pet. Obj. 1, 4-12. Petitioner also objects to the R&R’s finding that his petition was time-barred. See

. These arguments were thoroughly raised before, considered by, and rejected by Magistrate Judge Netburn in the R&R. See R&R 3-7. Indeed, Petitioner concedes that “some, if not all, relevant assertions and/or contentions here in these objections were thoroughly litigated in Petitioner’s Reply.” Pet. Obj. 1. Thus, the Court again reviews the R&R for clear error. Once again, on reconsideration, the Court finds none. See Order 2. The Court concludes that Petitioner’s objections would not have altered the Court’s decision to adopt the R&R in full. Accordingly, Petitioner’s motion for reconsideration is DENIED. The Clerk of Court is respectfully requested to terminate the motion pending at docket entry 19.

SO ORDERED. / / . Date: November 20, 2023 iv el gael New York, NY United States District Judge