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