Opinion
17-CV-5544 (MKB) (LB)
10-11-2018
KEITH PHOENIX, Petitioner, v. SUPERINTENDENT MICHAEL CAPRA, Respondent.
MEMORANDUM & ORDER :
Petitioner Keith Phoenix, proceeding pro se, brings the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet., Docket Entry No. 1.) Petitioner's claims arise from a 2010 judgment of conviction entered in New York State Supreme Court, Kings County, following a jury trial at which he was convicted of murder in the second degree as a hate crime and attempted assault in the first degree as a hate crime. (Id. at 1.) On February 26, 2018, the Court referred the petition to Magistrate Judge Lois Bloom for a report and recommendation. (Order dated Feb. 26, 2018.)
By report and recommendation dated August 24, 2018, Judge Bloom recommended that the Court deny Petitioner's writ of habeas corpus (the R&R"). (R&R, Docket Entry No. 8.) Judge Bloom also recommended that no certificate of appealability issue and that the Court certify pursuant to 28 U.S.C. § 1915(a) that any appeal from a judgment denying this petition will not be taken in good faith. (Id. at 12.) No party has objected to the R&R.
A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "Failure to object to a magistrate judge's report and recommendation within the prescribed time limit 'may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.'" Sepe v. N.Y. State Ins. Fund, 466 F. App'x 49, 50 (2d Cir. 2012) (quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v. Suffolk Cty., 531 F. App'x 107, 109 (2d Cir. 2013) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point." (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) ("[A] party waives appellate review of a decision in a magistrate judge's report and recommendation if the party fails to file timely objections designating the particular issue." (citations omitted)).
The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts the R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court denies the petition for a writ of habeas corpus, declines to issue a certificate of appealability, and certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this judgment denying this petition will not be taken in good faith. The Clerk of Court is directed to close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge Dated: October 11, 2018
Brooklyn, New York