Opinion
Civil Action 23-11428-RGS
09-04-2024
TIMOTHY KOSTKA, Plaintiff v. MICHAEL RODRIGUES, Respondent
ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
Because I cannot improve on Magistrate Judge Levenson's masterful analysis of the pleadings and his conclusions that the plaintiff: (1) has identified no conflict in the decision of the Supreme Judicial Court (SJC) affirming petitioner's conviction and any controlling precedent of the United States Supreme Court; and (2) that the SJC reasonably determined that there was no error, particularly error of a prejudicial nature, in the prosecutor's closing argument. Consequently, the Recommendation is ADOPTED, the petition for Writ of Habeas Corpus is DENIED with prejudice.The Clerk will enter judgment for the Respondent and close the case.
Like the Magistrate Judge, I note that petitioner's arguments regarding an alleged late-production discovery violation are based on state rules of criminal procedure and not federal constitutional law.
Kostka filed a timely Objection to the Magistrate's Report and Recommendation but on a careful reading the Objection does no more than repeat the arguments previously presented to the Magistrate Judge.
Petitioner is advised that any request for the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 of the court's Order denying his motion for Writ of Habeas Corpus, is also DENIED, the court seeing no meritorious or substantial basis supporting an appeal.
SO ORDERED.