The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
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.
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
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.
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.
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 ...