Summary
finding that petitioner could not establish prejudice as a result of appellate counsel's failure to raise non-meritorious claim based on insufficiency of the evidence
Summary of this case from Muldrow v. HerbertOpinion
No. 98 Civ. 5384 (LTS) (THK).
April 3, 2001.
OPINION AND ORDER
On December 12, 2000, Magistrate Theodore H. Katz issued a Report and Recommendation ("Report") recommending that this petition for a writ of habeas corpus under 28 U.S.C. § 2254 be denied. In reviewing a report and recommendation, the court "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). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The court shall make a de novo determination of those portions of the report to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
There were no objections interposed to the Report. The Court has thoroughly reviewed Magistrate Judge Katz's comprehensive and well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition is dismissed.
The petitioner may not appeal this order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). A certificate will be granted" only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. Further, 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. See Coppedge v. United States, 369 U.S. 438, 444 (1962).