Opinion
06 Civ. 2050 (DLC).
March 22, 2007
For Petitioner: Eddie Hunter, Pro Se, Otisville, NY.
For Respondent: Maria I. Immitt, Esq., Joseph N. Ferdenzi, Esp., Assistant District Attorneys, District Attorney, Bronx County, Bronx, NY.
OPINION ORDER
Pro se petitioner Eddie Hunter ("Hunter") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his July 19, 2002 conviction for manslaughter in the second degree following a non-jury trial. Hunter asserts that the state failed to prove his guilt beyond a reasonable doubt because one state witness was unreliable and the other supported his version of events, and because the medical examiner did not conclusively establish that the victim was killed by a kick or a punch.
The case was referred to Magistrate Judge Henry Pitman for a Report and Recommendation ("Report"), which was issued February 2, 2007. The Report recommends that the petition be denied. Hunter did not file an objection to the Report. This Opinion adopts the Report.
Background
The facts established at trial are set forth in the Report and summarized here. On May 11, 2000, Albert Shivers ("Shivers") and the victim Miroslaw Ordon ("Ordon") were sitting in a park when Hunter approached them. Ordon told Hunter to leave Shivers alone, and Hunter punched Ordon until he fell to the ground, then kicked him several times while on the ground. Hunter then left, and Shivers also left Ordon for fifteen to twenty minutes; when Shivers returned, Ordon was on the ground and unconscious. Hunter's ex-girlfriend testified that Hunter had said he punched a guy because he pulled a knife on him, and that she watched Hunter punch Ordon and cut open his eye. Hunter was arrested later that evening. He gave written and videotaped statements in which he admitted punching Ordon.
Ordon was taken to the hospital and died the following morning. The medical examiner testified that Ordon's cause of death was blunt impact to the head, and that it was more likely the result of being kicked rather than punched. At trial, Hunter testified that he had only punched Ordon once in the lip and hit him once near the right eye.
Hunter was convicted and sentenced as a predicate felon to an indeterminate term of imprisonment of seven-and-one-half years to fifteen years. He appealed, and the Appellate Division, First Department affirmed petitioner's conviction on the merits, finding that the eyewitness testimony and medical evidence established that Hunter's reckless course of conduct of punching and kicking Ordon in the head caused his death. Leave to appeal to the New York Court of Appeals was denied, and on January 25, 2006, Hunter filed a pro se application for a writ of habeas corpus. The petition was referred to Magistrate Judge Pitman on March 31, 2006.
Discussion
The reviewing court "may accept, reject, or modify, in whole or in part, the findings and 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." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (citingNelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). For the reasons described in the Report, Hunter has not shown that the Appellate Division's decision to reject his claims were either contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d).
Conclusion
The recommendation of Magistrate Judge Henry Pitman is adopted and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted.Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). Moreover, Hunter made no objections to the Report, and as the Report advised him, he has waived his right to appeal. DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). The Clerk of Court shall dismiss this petition.
SO ORDERED: