Gilford v. Racette

Full title: TERELL GILFORD, Petitioner, v. SUPERINTENDENT STEVEN RACETTE, Respondent

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Nov 20, 2015

1:13-cv-05881 (ALC) (AJP) (S.D.N.Y. Nov. 20, 2015)

Opinion

1:13-cv-05881 (ALC) (AJP)

11-20-2015

TERELL GILFORD, Petitioner, v. SUPERINTENDENT STEVEN RACETTE, Respondent

ANDREW L. CARTER, JR., United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION ANDREW L. CARTER, JR., United States District Judge :

Pro se petitioner Terell Gilford ("Petitioner") filed Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. (ECF No. 1). Petitioner challenges his 2006 convictions in the New York Supreme Court, Bronx County, for first-degree manslaughter, first-degree assault, and fourth-degree criminal possession of a weapon. He argues that: (1) his attempted assault conviction was based on legally insufficient evidence; (2) the identification procedures used were suggestive and violated his right to due process, and therefore should have been suppressed; and (3) his trial counsel was ineffective in his failure to renew motions to dismiss the murder and assault charges.

On April 27, 2015, this matter was referred to United States Magistrate Judge Andrew Peck. (ECF No. 13.) Judge Peck subsequently issued a Report and Recommendation on August 5, 2015, recommending that the Petition be dismissed and the case closed (ECF No. 17.). In the Report and Recommendation, Judge Peck instructed the parties that, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, they had 14 days from service to file written objections to the Report and Recommendation. He further noted that failure to file objections would result in waiver of those objections for the purposes of appeal. No party filed objections.

Where no timely objections are made, the Court may adopt the Report and Recommendation "as long as there is no clear error on the face of the record." Sacks v. Gandhi Eng'g, Inc., 999 F. Supp. 2d 629, 632 (S.D.N.Y. 2014) (citing Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003)). In light of the lack of any objections to the Report and Recommendation, the Court finds no clear error in the record and adopts Judge Peck's Report and Recommendation in its entirety.

The Petition is hereby DISMISSED with prejudice. The Clerk of Court is respectfully directed to close this case.

SO ORDERED.

Dated: November 20, 2015

New York, New York

/s/ _________

HON. ANDREW L. CARTER, JR.

United States District Judge