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MONTALVO v. MANTELLO

United States District Court, Southern District of New York


December 3, 2002

ORLANDO MONTALVO, PLAINTIFF,
V.
DOMINIC MANTELLO, SUPERINTENDENT DEFENDANTS.

The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge.

  OPINION & ORDER

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 entirety.

20021203

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