United States District Court, S.D. New York
May 17, 2005.
RICHARD WILLOUGHBY, Petitioner,
KENNETH S. PERLMAN, Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION and ORDER
Richard Willoughby ("Willoughby") filed this petition pro se
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May
12, 2003. On June 27, 2003, this Court ordered the respondent to
answer the petition and referred the action to Magistrate Judge
Maas for the preparation of a Report and Recommendation pursuant
to 28 U.S.C. § 636(b). Willoughby was released from state custody
on September 25, 2003. On October 28, 2004, Judge Maas issued his
Report and Recommendation to this Court.
Willoughby alleges that his constitutional rights were violated
when the trial court refused to excuse two jurors, Thomas Butcher
("Butcher") and Thomas Bryson ("Bryson"), for cause. When asked
if his prior experience as a juror would affect his ability to be
fair in Willoughby's case, Butcher responded that his ability to
be fair depended "[o]n what happens when I get into the jury room
this time." In response to the same line of questioning, Bryson
initially stated that he could "probably" be fair but later
explained that "[i]t depends on the evidence." After further inquiry, he responded, "Okay. I can be
fair, okay?" Although the trial court denied Willoughby's
challenges for cause, Willoughby removed both Butcher and Bryson
from the jury with peremptory challenges.
After examining the merits of each 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
October 28 Report. No objections by either party were filed.
In reviewing the Report, a reviewing 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." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169
(S.D.N.Y. 2003) (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"). DISCUSSION
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. Willoughby made no objections to the Report, and
as the Report having advised him that failure to object will
preclude appellate review of this Opinion and Order, he has
waived his right to appeal. DeLeon v. Strack, 234 F. 3d 84, 86
(2d Cir. 2000).
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