United States District Court, S.D. New York
April 15, 2004.
THOMAS CIVILIZE, Petitioner, -v- GEORGE B. DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent
The opinion of the court was delivered by: DENISE COTE, District Judge
Pro se petitioner Thomas Civilize ("Civilize") filed this
petition for a writ of habeas corpus pursuant to Title 28, United States
Code, Section 2254 on June 21, 2002. On July 10, this Court ordered the
respondent to answer the petition and referred the action to Magistrate
Judge Frank Maas for the preparation of a Report and Recommendation
pursuant to 28 U.S.C. § 636 (b). On January 21, 2004, Judge Maas
issued his Report and Recommendation to this Court.
Civilize was convicted by a jury in New York County Supreme Court of
one count of Robbery in the Second Degree, in violation of section
160.10(1) of the New York Penal Law, and was sentenced as a second
violent felony offender to a fifteen-year prison sentence. The petition
asserts that this conviction should be vacated on two grounds: first,
that he was denied due process by the trial judge's failure to give a
requested circumstantial evidence charge; and second, that his
fifteen-year sentence was unduly harsh.
After examining the merits of both of these claims, Judge Maas
recommended that this Court dismiss the petition and deny a certificate
of appealability. As indicated by Judge Maas in his Report and pursuant
to Rule 72, Fed.R. Civ. P., the petitioner and respondent had ten days
in which to file objections to the January 21 Report. On February 13,
this Court granted Civilize's letter request for an extension of time to
file objections, which were due on March 5. No objections by either party
have been filed to date.
In reviewing the Report, a district 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." Urena v. People of the State of
New York, 160 F. Supp.2d 606, 609-610 (S.D.N.Y. 2001) (citing
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) (court may accept report if it is "not facially erroneous").
Having reviewed the Report, I find no facial errors in it. I,
therefore, accept and adopt the Report. The Clerk of Court shall dismiss this petition and close the case. I further accept Judge
Maas's recommendation against issuing a certificate of appealability.
Civilize has not made a substantial showing of a denial of a federal
right and appellate review is, therefore, not warranted. See
Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998);
Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I
find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). Finally, Civilize has waived his right
to appeal by failing to file timely objections.
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