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Summary of this case from Ross v. ArtuzOpinion
97 Civ. 2978 (RCC) (MHD)
April 27, 2001
OPINION AND ORDER
Petitioner James Albert brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 25, 1997. Petitioner, convicted of robbery and criminal possession of a weapon in New York Supreme Court, sought habeas relief on the grounds that the trial judge inadequately investigated allegations of jury bias and improperly refused to grant a mistrial. Then-District Judge Sonia Sotomayor initially dismissed the petition as untimely in January 1998. Petitioner appealed, and the Second Circuit summarily reversed the dismissal in accordance with its recent decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). The case was reassigned to this Court and referred to Magistrate Judge Dolinger for a Report and Recommendation on the merits of the petition.
By Report and Recommendation dated January 18, 2001, Judge Dolinger recommended that the petition be denied with prejudice. Judge Dolinger found that Petitioner's claims were procedurally barred under Wainright v. Sykes, 433 U.S. 72 (1977), and its progeny. Because the New York Appellate Division and Court of Appeals held that Petitioner's claims were unpreserved for review, Judge Dolinger concluded that an independent and adequate state law ground existed as a bar to habeas review. See Report at 13-17. Moreover, Judge Dolinger found that Petitioner did not demonstrate cause for the default and actual prejudice, nor did he establish that failure to hear the claim would result in a fundamental miscarriage of justice. See id. at 17-21.
Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure, the parties had ten (10) days to file written objections to the Report and Recommendation. To date, the parties have not filed any objections.
A court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court, having reviewed the file in this matter and satisfied that there is no clear error on the face of the record, accepts and adopts the Report and Recommendation of Magistrate Judge Dolinger in its entirety. Thus the petition is denied with prejudice and the Clerk of the Court is directed to close this case.
SO ORDERED: