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TULLOCH v. I.N.S.

September 24, 2001

ALBERT LESLIE TULLOCH, PETITIONER,
V.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



The opinion of the court was delivered by: Batts, District Judge.

ADOPTION OF REPORT AND RECOMMENDATION

On June 22, 2001, Magistrate Judge James Francis IV issued a Report and Recommendation recommending that Petitioner's habeas corpus petition be denied. See 28 U.S.C. § 636(b)(1)(C); Local Civil Rule 72.1(d). Petitioner has filed objections to the Report and Recommendation, to which Respondent has responded.

28 U.S.C. § 636(b)(1)(c) requires the Court to make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." After conducting a de novo review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Civil Rule 72.1(d).

Petitioner contests his order of deportation following his conviction for murder in the second degree. The facts in this matter are sufficiently set forth in Judge Francis' Report and Recommendation and will not be reiterated here. Judge Francis assessed Petitioner's claim that his due process rights were denied by INS counsel's withholding of crucial evidence at the removal proceeding and the selective reliance on evidence by the Immigration Judge, and that AEDFA and IIRIRA were impermissibly applied to him to deprive him of his opportunity to seek discretionary relief from removal.

Respondent objects that the Report and Recommendation failed to appreciate that the IJ "improperly allowed the passport of someone else into evidence even though it was not clear that the passport belonged to petitioner." Pet. Obj. at 2. Judge Francis, however, found the record indicates that the IJ specifically accorded that passport little weight precisely because its ownership was ambiguous. See R & R at 6-7; R. at 57-58. As such, the record belies Petitioner's claim and no prejudice has been established.

Petitioner also objects on the basis of the Second Circuit's holding that a section 212(c) waiver remains available to lawful permanent resident aliens who prior to the 1996 enactment of the IIRIRA, entered a guilty or nolo contendre plea to crimes that made them removable.*fn1 See St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), aff'd, 533 U.S. 289 at ___, n. 52, 121 S.Ct. at 2287 n. 52, 150 L.Ed.2d 347 (2001). Petitioner's objection is unfounded, as any benefit bestowed by St. Cyr does not apply to this case. Even assuming the applicability of pre-AEDPA or IIRIRA standards, Petitioner, as Judge Francis correctly found, was ineligible for such waiver because he was never a lawful permanent resident and he had served more than five years of his prison sentence for murder.*fn2 See R & R at 9-10.

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. See United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997).

Accordingly, after conducting an independent de novo review of the Report and Recommendation, and reviewing the record herein, it is

ORDERED AND ADJUDGED as follows:

1. The Report and Recommendation of United States Magistrate Judge James Francis IV dated June 22, 2001, is approved, adopted, and ratified by the Court;

2. The petition for a writ of habeas corpus is hereby DENIED;

3. The Clerk of the Court is directed to dismiss the petition.

SO ORDERED.

REPORT AND ...


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