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LEE v. ARTUZ

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


June 24, 1997

DAVID LEE, Petitioner, against CHRISTOPHER ARTUZ, Superintendent of Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: STEIN

ORDER

 SIDNEY H. STEIN, U.S. District Judge.

 In a "Report and Recommendation" dated May 21, 1997, U.S. Magistrate Judge Andrew J. Peck recommended that:

 Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed on the grounds that his petition is untimely pursuant to the one year limitation period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").

 Written objections to the "Report and Recommendation" have not been filed with the Court by petitioner and the time in which to file such objections has expired pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).

 Upon review de novo of Magistrate Judge Peck's "Report and Recommendation" dated May 21, 1997,

  IT IS HEREBY ORDERED that:

 1. Petitioner's application for a writ of habeas corpus is dismissed on the grounds that his petition is untimely pursuant to the one year limitation period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").

 2. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253, as amended by the AEDPA; see also Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam) (discussing issuance of a certificate of probable cause under standard prior to amendment of 28 U.S.C. § 2253); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979).

 3. Pursuant to 28 U.S.C. § 1915(a) the Court certifies that any appeal from this Order would not be taken in good faith.

 Dated: New York, New York

 June 24, 1997

 SO ORDERED:

 Sidney H. Stein, U.S.D.J.

19970624

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