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RILEY v. STATE

United States District Court, S.D. New York


June 14, 2004.

PETER RILEY, Petitioner,
v.
STATE OF NEW YORK, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge

MEMORANDUM OPINION and ORDER

Pro se petitioner Peter Riley ("Riley") filed this petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2254 on August 27, 2001. On October 2, this Court ordered the respondent to answer the petition and referred the action to Magistrate Judge Ronald Ellis for the preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b). On May 12, 2004, Judge Ellis issued his Report and Recommendation to this Court.

Following a non-jury trial in the New York State Supreme Court, Bronx County, Riley was convicted of rape in the first degree. He contends that he is entitled to habeas relief because he was deprived of his right to appear and testify before the grand jury, the prosecution failed to serve him notice of his right to appear before the grand jury, the prosecution failed to conduct a "felony hearing" before submitting the case to the grand jury, and his trial counsel was ineffective in waiving Riley's appearance before the grand jury without his permission. After examining the merits of each of these claims, Judge Ellis recommended that this Court dismiss the petition and deny a certificate of appealability.

  As indicated by Judge Ellis 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 May 12 Report. On June 10, 2004, this Court received a letter from Riley stating: "I'm writing in response to the Respondent's Report and Recommendation. I accept Respondents Report and Recommendation For value."

  In reviewing the Report, 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. § 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, 609-10 (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 Ellis's recommendation against issuing 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. 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). The petitioner having made no objections to the Report, and the Report having advised petitioner that failure to object will preclude appellate review of this Opinion and Order, the petitioner has waived his right to appeal. United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997); Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).

  SO ORDERED.

20040614

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