The opinion of the court was delivered by: Berman, District Judge.
On March 31, 2000, Ernest Stephen Johnson ("Petitioner" or
"Johnson"), a resident of the United States and a citizen of
Jamaica, pro se, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 ("Petition"), challenging his
detention and removal proceedings by the Immigration and
Naturalization Services ("INS") and asking that he be returned
to the State of New York from INS custody in Oakdale, Louisiana
and granted bail in the amount of $1500 or less. On December 16,
1998, INS had issued a Notice to Appear charging Johnson with
being removable from the United States for the following
reasons, among others: (1) being "an aggravated felon in
accordance with [§] 101(a)(43)(B) of the [Immigration and
Nationality Act ("INA")]; (2) illicit trafficking in a
controlled substance[,] [§] 237(a)(2)(A)(iii); and (3) violation
of the law relating to a controlled substance, [§]
237(a)(2)(B)(i) . . ."*fn1 (See Petition at 4). On June 30,
1999, an Immigration Judge sustained the charges and ordered
Johnson deported. (See U.S. Department of Justice letter to
Honorable Douglas F. Eaton, United States Magistrate Judge, at
In his Petition, Johnson alleges that he is entitled to habeas
relief because: (1) the INS's refusal to allow him to seek a
waiver of deportation under § 212(c) of the INA was a violation
of his procedural due process and substantive due process rights
under the 5th Amendment of the United States Constitution and
his equal protection rights under the 14th Amendment of the
United States Constitution; and (2) INA § 212(c) and § 212(h)
are unconstitutional as applied to Petitioner and contrary to
the plain meaning of the statute. (See Petition at 10).
The Report clearly stated that "[p]ursuant to
28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure, any party may object to this recommendation within 10
business days after being served with a copy, by filing written
objections . . ." and that "[f]ailure to file objections within
10 business days will preclude appellate review." (See Report
at 3). Neither party has filed objections or requested an
extension of time.
A district court reviewing a magistrate judge's report and
recommendation applies the standards contained in Rule 72(b) of
the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1),
which permit the court to adopt those parts of the report to
which no specific objection is raised. See Thomas v. Am,
474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). With
respect to those parts of the report to which any party objects,
the court must make a de novo determination. See United
States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 65
L.Ed.2d 424 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d
Cir. 1989). If neither party objects to the report, the Court
"need only satisfy itself that there is no clear error on the
face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985) (citations omitted); see also Pizarro v.
Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may
accept Report if it is "not facially erroneous.")
III. Conclusion and Order
The Court finds that there is no clear error on the face of
the record and that the Report is not facially erroneous.
Accordingly, the Court adopts the Magistrate Judge's Report in
its entirety and denies Johnson's Petition as moot. Jones v.
Holder, No. 00 Civ. 6864 (S.D.N.Y. Feb. 6, 2001).
The Clerk of the Court is respectfully directed to ...