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WILLIAMS v. RABIDEAU

April 27, 2004.

DEQUAN WILLIAMS, Petitioner,
v.
MICHAEL RABIDEAU, Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

ORDER

On April 27, 2004, Magistrate Judge Kevin N. Fox issued a Report and Recommendation ("Report") recommending that the petition of Dequan Williams ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. No objections to the Report have been filed.

In reviewing a Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West Supp. 2004). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, a district court "`need only satisfy itself that there is no clear error on the record.'" Johnson v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted). See also Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept those portions of report to which no written objection has been made, so long as they are "not facially erroneous").

  The Court has reviewed thoroughly Magistrate Judge Fox's well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition for writ of habeas corpus is denied.

  The Petitioner may not appeal this order unless ?a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1). A certificate will be granted ?only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability.

  Magistrate Judge Fox's Report follows.

  SO ORDERED.

  TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE

  I. INTRODUCTION

  By application dated February 17, 2004, Dequan Williams ("Williams") petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Williams asserts that his confinement by New York state is unlawful because he received ineffective assistance from both trial and appellate counsel.*fn1 Williams, who admits that he has not exhausted his available state remedies with respect to either of these claims, seeks a stay of his petition so that he might return to the relevant state courts to pursue exhaustion. For the reasons set forth below, I recommend that Williams' motion to stay his habeas corpus petition be denied and that the petition be dismissed.

  II. BACKGROUND

  In June 2001, Williams was convicted for robbery in the second degree in violation of N.Y. Penal Law § 160.10, and sentenced to nine and one-half years' imprisonment. Williams appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. On October 8, 2002, the Appellate Division confirmed Williams' conviction unanimously. See People v. Williams, 298 A.D.2d 163, 751 N.Y.S.2d 170 (App. Div. 1st Dep't 2002). Williams applied for leave to appeal to the New York Court of Appeals. That application was denied on December 2, 2002. See People v. Williams, 99 N.Y.2d 566, 754 N.Y.S.2d 219 (2002). The instant application for habeas corpus relief was filed timely on February 24, 2004.

  III. DISCUSSION

  A habeas corpus petition brought by a state prisoner shall not be granted unless "the applicant has exhausted the remedies available in the courts of the State; or . . . there is an absence of available State corrective process; or . . . circumstances exist that render such process ...


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