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CIVILIZE v. DUNCAN

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

MEMORANDUM OPINION AND ORDER
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.

  Discussion

  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.

  SO ORDERED.

20040415

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