The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge.
Pro se petitioner Orlando Montalvo ("Montalvo") seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of
November 1, 1991, in New York State Supreme Court. Bronx County. Montalvo
was convicted of murder in the second decree and was sentenced to an
indeterminate term of twenty-five years to life imprisonment.
In his petition filed on June 5, 2000, Montalvo raises two claims.
First, Montalvo alleges prosecutorial misconduct because the prosecution
withheld exculpatory material, including police reports of a dying
declaration made by the victim, Christino Garcia ("Garcia"), a witness
statement made by Yolanda Matos ("Matos"), the victim's wife, and a
statement made by the victim's sister. Montalvo claims that these police
reports identify Genaro Andujar ("Andujar") as the perpetrator. Second,
Montalvo alleges that he was denied effective assistance of trial counsel
because: (1) he was "coerced" into not testifying; and (2) trial counsel
failed to locate and contact alibi witnesses, including Fevine Fabian
("Fabian"), Alberto Rivera ("Rivera"), and Matos.
On July 31, 2000, we referred this case to Magistrate Judge Ellis. On
August 6, 2002, Judge Ellis submitted to us his Report and
Recommendation, in which he recommended that Montalvo's petition be
dismissed in its entirety because Montalvo failed to exhaust the claims
presented in state court. Moreover, Judge Ellis held that had the court
not dismissed Montalvo's petition on procedural grounds, the ineffective
assistance of counsel claim would nonetheless fail on the merits. Neither
party filed written objections to the Report and Recommendation.
A reviewing 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). Where no timely objection to a magistrate
judges report and recommendation has been made, "a district court need
only satisfy itself that there is no clear error on the face of the
record." Nelson v. Smith (S.D.N.Y. 1985). 618 F. Supp. 1186, 1189: see
also Pizarro v. Bartlett (S.D.N.Y. 1991), 776 F. Supp. 815, 817. We have
reviewed the Report and are convinced that there is no facial error. As
such, we accept in whole Judge Ellis' Report and Recommendation and order
that Montalvo's petition by writ of habeas corpus be DISMISSED in its
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