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January 8, 2003


The opinion of the court was delivered by: Denise Cote, United States District Judge.

Petitioner Roderick Reyes ("Reyes") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") on November 3, 2000. By Order of December 6, 2000, the petition was referred to Magistrate Judge Eaton for a Report and Recommendation. By his Report of July 17, 2002, Judge Eaton recommends that Reyes' petition be denied in all respects. Although petitioner twice requested, and received, extensions of time to file objections to the Report, no objections to the Report have been filed. For the reasons that follow, Judge Eaton's recommendation is adopted and Reyes' petition is denied.


In August 1995, Reyes shot and killed Felipe Delgado in Manhattan, and fled to Florida. In September of that year, while detained on other outstanding New York warrants, he was interviewed in Florida by New York City detectives. During this interview, Reyes confessed to the Delgado killing. After unsuccessfully attempting to suppress the Florida confession, on the ground that it violated his right to counsel because a: the time of the interview he was represented by counsel in other cases, Reyes pleaded guilty to first degree manslaughter and waived his right to appeal on December 16, 1996. On January 9, 1997, Reyes was sentenced to a term of 11 to 22 years in prison.

Reyes appealed on two grounds, arguing again that his right to counsel had bees violated, and that his waiver of his right to appeal was ineffective. The Appellate Division held that the waiver of his right to appeal was effective, and appellate review foreclosed, on October 21, 1999. Reyes' motion for leave to appeal was denied by the New York Court of Appeals on November 30, 1999.


Reyes raises two grounds for relief in his habeas petition, and they are the same as were presented to the Appellate Division. First, he contends that the statements made to the New York City police detectives in Florida were admitted into evidence in violation of his right to counsel. Second, he challenges his waiver of the right to appeal.

A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection 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, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991)

The Report correctly found that Reyes cannot attack his Florida confession because he pleaded guilty to the criminal charge against him. Once a petitioner has pleaded guilty, "he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973)

Turning to Reyes' second claim, the Appellate Division found that Reyes had made "a voluntary, knowing and intelligent waiver of his right to appeal." Pursuant to 28 U.S.C. § 2254(e)(1) this factual determination is "presumed to be correct" unless rebutted by "clear and convincing evidence." Reyes has presented none.


The Recommendation of Magistrate Judge Eaton is adopted and the petition is dismissed. I further find that the petitioner having made no objection to the Report, and the Report having advised petitioner that failure to object will preclude appellate review of this Order, the petitioner has waived his right to appeal. U.S. v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)

In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). I also find pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. U.S., 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.


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