Opinion
DOCKET NO. 97-CV-0339E(Sr)
August 3, 2000
ATTORNEYS FOR THE PLAINTIFF: Pro Se.
ATTORNEYS FOR THE DEFENDANT: Donna A. Milling, Esq., Asst. Erie County District Attorney,
MEMORANDUM and ORDER
Petitioner Anitha Ubiles seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1)(B) for a determination of the merits of the legal issues raised by petitioner. After Judge Heckman had filed her Report and Recommendation ("R R") October 1, 1999 recommending that the petition be denied, petitioner filed her Objections to such November 26, 1999. For the reasons set forth below, this Court overrules such objections and adopts the conclusions of the R R.
While familiarity with the facts is presumed, the relevant details are hereinafter presented. Petitioner had been sentenced to an indeterminate term of 25 years to life following a conviction in New York State Supreme Court on one count of criminal possession of a weapon and multiple counts of murder and arson. Such Court's Appellate Division unanimously affirmed the conviction. People v. Ubiles, 539 N.Y.S.2d 233 (App.Div. 4th Dep't 1989). The New York Court of Appeals denied petitioner's request for leave to appeal. See People v. Ubiles, 74 N.Y.2d 748 (1989). Some eight years later, petitioner filed this action pro se for habeas corpus relief.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge and may adopt those parts of the R R to which no specific objection is raised. 28 U.S.C. § 636(b)(1)(C); see also Thomas v. Am, 474 U.S. 140, 149 (1985). The undersigned must make a de novo determination with respect to those portions of the R R to which specific objections are made. See 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 675-676(1980). It is entirely within the province of this Court to adopt the portions of the R R to which no specific objection is made as long as such are not clearly erroneous. See Black Walker, No. 97-CV-0668E(H), 2000 WL 461106, at *1 (W.D.N.Y. 2000) (citing Moore v. Scully, 956 F. Supp. 1139, 1142-1143 (S.D.N.Y 1997)); see also Thomas, at 149.
Petitioner's objections to the R R do not explain how specific findings of the magistrate judge were erroneous or how such judge misapplied the law to the facts of the case. Further, she has not presented relevant case law that assertedly was ignored by the magistrate judge. Rather, petitioner is attempting to retry the facts of this case by pointing to what can only be considered minor inconsistencies in the testimony of some of the prosecution's witnesses. Her only true "objection" is to the determination by the magistrate judge that, even absent any misconduct of the prosecutor, there was sufficient evidence to convict petitioner of murder, arson and criminal possession of a weapon. See Objections at 1. After an examination of the record of the state court proceedings and the magistrate judge's review thereof, it is the undersigned's determination that, although the criminal case against petitioner had been built on circumstantial evidence, such evidence was abundant and persuasive.
This Court is not the forum for review of any factual determination except under narrow circumstances inapplicable herein — to wit, "[a] n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjucated on the merits in the State court proceedings unless the adjudication of that claim — *** (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). In the instant case, there is substantial evidence of the petitioner's guilt and no evidence of an unreasonable determination of the facts by the trial court, or the jury or either of the two appellate courts. As for the testimonial inconsistences identified by petitioner, the fact that the times stated for certain events by some of the witnesses differ by a few minutes — or suggest that petitioner was in two places at once because of imprecise witness statements such as "around nine o'clock" — does not amount to sufficient proof that the jury verdict was not supported by the evidence at trial.
The other ground — not here pertinent — under this rubric for the granting of a writ is a decision that was contrary to clearly established federal law. See 28 U.S.C. § 2254(d)(1).
Having given thorough consideration to each of the petitioner's claims, the undersigned rejects them. A careful review of Judge Heckman's analysis reveals no clear error. Accordingly, it is hereby ORDERED that petitioner's objections are overruled, that the Report and Recommendation filed October 1, 1999 is adopted in its entirety, that the petition for a writ of habeas corpus is denied and that this case shall be closed. (Inasmuch as there is no substantial showing by petitioner of the denial of a constitutional right, the Court declines to issue a certificate of appealability and certifies that any appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915.)