Opinion
97 Civ. 3037 (RCC) (HBP).
December 18, 2000.
OPINION AND ORDER
Petitioner Ali Abdul Rashid, also known as Chester Bruce, brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 28, 1997. Rashid's action was assigned to the Honorable Sonia Sotomayor, who dismissed the petition as untimely by Opinion dated January 8, 1998. However, because of a subsequent change in the law by the Second Circuit see Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), Judge Sotomayor granted Rashid's motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and reinstated the action. Petitioner, assisted by counsel, filed an amended petition for habeas relief. The case was reassigned to this Court and referred to Magistrate Judge Henry Pitman for a Report and Recommendation on the merits of the petition.
By Report and Recommendation dated May 26, 2000, Judge Pitman recommended that the petition be denied. Judge Pitman found that Petitioner's claims concerning the sufficiency of evidence presented to the grand jury and the prosecution's failure to provide certain transcripts were procedurally barred. Proceeding to the merits, Judge Pitman determined that Petitioner failed to demonstrate any constitutional error with respect to assistance of counsel, evidentiary rulings by the trial court, jury instructions and sentencing. Judge Pitman concluded that the evidence adduced at trial was sufficient to support the jury's verdict finding Petitioner guilty of criminal possession and sale of a controlled substance.
The Court notes that Petitioner was released from prison on June 16, 1999, and is now serving a term of lifetime parole. This change in status does not render the petition moot. See Jones v. Cunningham, 371 U.S. 236, 241, 83 S.Ct. 373, 377 (1963) (for habeas purposes, a person is deemed to be "in custody" of the Parole Board where his release from prison is not unconditional);Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994) (supervised release meets "in custody" requirement).
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. A failure to file any objections in a timely fashion precludes appellate review. 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 Pitman in its entirety. Thus the petition is denied and the Clerk of the Court is directed to close this case.