Opinion
10 Civ, 3450 (JPO) (THK)
06-26-2012
CHAMPAGNE SMITH, Plaintiff, v. HAROLD GRAHAM, Defendant.
ORDER ADOPTING
REPORT AND
RECOMMENDATION
J. PAUL OETKEN, District Judge:
Champagne Smith ("Petitioner") was convicted in New York State Supreme Court, New York County of Murder in the Second Degree, in violation of N.Y. Penal Law § 125.25(1), and Possession of a Weapon in the Second and Third Degrees, in violation of N.Y. Penal Law §§ 265.03(2), 265.02(4). Petitioner was sentenced to an indeterminate sentence of twenty-five years to life imprisonment for the murder conviction, and concurrent terms of imprisonment of fifteen and seven years in prison for the weapons charge. Following a direct appeal, the New York Supreme Court, Appellate Division, First Department, affirmed Petitioner's conviction on December 18, 2008. People v. Smith, 57 A.D.3d 356, 869 N.Y.S.2d 88 (1st Dep't 2008), leave to appeal denied, 12 N.Y.3d 821, 881 N.Y.S.2d 29 (2009).
On April 26, 2010, Petitioner filed a petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction. (Dkt. No. 2.) The case was referred to the Honorable Theodore H. Katz for a Report and Recommendation ("R & R"). (Dkt. No. 3.) On May 7, 2012, Magistrate Judge Katz issued a thorough R & R, recommending that this Court dismiss the Petition in its entirety. (Dkt. No. 18.) Petitioner has not filed any objections to the R & R, and the time to do so has expired.
When no objections are filed, the Court reviews a R & R on a dispositive motion for clear error. See, e.g., Andrews v. LeClaire, 709 F. Supp.2d 269, 271 (S.D.N.Y. 2010).
The Court has reviewed the R & R and the Petition, and finding no error, clear or otherwise, adopts the R & R in its entirety. Accordingly, the petition is denied.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue, see 28 U.S.C. § 2253(c)(2), and the Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith.
The Clerk of the Court is directed to enter judgment dismissing the case.
SO ORDERED. Dated: New York, New York
June 26, 2012
________________
J. PAUL OETKEN
United States District Judge