Summary
rejecting petitioner's habeas claim because, although the prosecutor's remark, which petitioner alleged violated the "unsworn witness" rule, was "improper, the trial court at [petitioner's] trial thereafter appropriately instructed the jury that this comment by the prosecutor was . . . 'not testimony that you can consider'"
Summary of this case from Atchison v. ArtusOpinion
01-CV-681.
February 5, 2008
ORDER
This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). On September 27, 2001, petitioner filed a petition for writ of habeas corpus. On November 20, 2007, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that the petition be dismissed.
Plaintiff filed objections to the Report and Recommendation on February 1, 2008.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, the Court adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, the petition for a writ of habeas corpus is dismissed. The Clerk of Court is directed to take all steps necessary to close the case.
The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and therefore denies his motion for a certificate of appealability. 28 U.S.C. § 2253(c)(2).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith, and therefore denies leave to appeal in forma pauperis. Further requests to proceed on appeal in forma pauperis must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.