tended to show that he was innocent of the 7:15 robbery.
On August 2, 1996, this Court referred the petition to Magistrate Judge Andrew J. Peck for a Report and Recommendation. On November 13, 1997, Judge Peck issued his Report ("Report") and recommended that the petition be denied. The petitioner has filed no objections to the Report. In order to preserve its rights, the respondent has objected solely to that portion of the Report which concludes that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") does not apply retroactively.
A court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). See Fed.R.Civ.P. 72(b). A court may accept those findings to which no specific written objection is made as long as those findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1996); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). A de novo review must be conducted of those issues to which a specific written objection has been made. Fed.R.Civ.P. 72(b). See Greene, 956 F. Supp. at 513.
Reviewing de novo the respondent's objection that the petition is untimely under the AEDPA, I find that the objection is without merit. As described in the Report, this habeas petition is not time-barred by the AEDPA, which was signed into law on April 24, 1996, since the AEDPA's one-year statute of limitations for filing petitions for habeas corpus does not apply retroactively to petitions made before the effective date. See Nelson v. Walker, 121 F.3d 828, 831 (2d Cir. 1997); Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996). While Nieves' petition was not filed before the AEDPA's April 24, 1996 effective date, it was sworn to on March 18, 1996 and received by this Court's Pro Se Office on April 11, 1996. Thus, the petition is timely.
I review the balance of the Report for clear error and find none. As Judge Peck points out in his thorough and well reasoned Report, the failure of defense counsel to offer proof at Nieves' first trial -- the trial for the 7:15 robbery -- that he committed a robbery 15 minutes earlier and four blocks away does not constitute ineffective assistance of counsel. The same attorney represented Nieves at his two robbery trials. He was well aware of the proximity in time and place between the two crimes and Nieves' contention that he could not have committed them both. It was entirely reasonable for defense counsel to make the tactical decision that Nieves would be harmed by offering proof that Nieves had committed another robbery when that proof would not conclusively establish that it was impossible for Nieves to have committed both robberies. Defense counsel chose instead to attack the reliability of the witness identification testimony.
The Brady argument is also quickly disposed of. As Judge Peck explains, the information which Nieves contends was withheld was either known to the defense or was not exculpatory.
The Court adopts Judge Peck's recommendation that the petition be denied. The Clerk of Court shall dismiss this petition. Further, I find that a certificate of appealability shall not issue and that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 8 L. Ed. 2d 21, 82 S. Ct. 917 (1962).
Dated: New York, New York
December 22, 1997
United States District Judge
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