The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Petitioner Jason Ware ("Ware") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his March 2000 conviction and sentence, following a jury trial, for Manslaughter in the First Degree and Criminal Possession of a Weapon in the Third Degree. Ware asserts four claims for relief from his conviction: (1) that the prosecutor violated the Equal Protection Clause of the Fourteenth Amendment by challenging a prospective juror on the basis of her race; (2) the trial court violated his Fourteenth Amendment right to due process by failing to submit to the jury the charge of Manslaughter in the Second Degree as a lesser-included offense; (3) the prosecutor's summation misrepresented the legal standard for self-defense so as to deprive him of a constitutionally fair trial; and (4) the sentence imposed was unduly harsh and excessive.
This case was referred to United States Magistrate Judge Frank Maas, who issued his Report and Recommendation ("R&R") on September 26, 2006, recommending the denial of Ware's petition. On December 11, 2006, Ware timely filed objections limited primarily to Magistrate Judge Maas's determination that the prosecutor's peremptory challenge did not constitute an equal protection violation under Batson v. Kentucky, 476 U.S. 79 (1986). Ware stated in a footnote that Petitioner,
"Petitioner's Objections specifically addresses the Batson claim. However, Petitioner maintains that the remaining claims can be reached by the Court." Objections to Magistrate Judge Frank Maas' Report and Recommendation ("Objections"), 1 n. 1. The Court interprets this as an objection to Magistrate Judge Maas's determination that Ware's non-Batson claims were barred as unexhausted and procedurally defaulted. The Court agrees with Magistrate Judge Maas's recommendation, and denies Ware's petition.
I. Consideration of a Report and Recommendation
A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). When a timely objection has been made to the magistrate's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). The court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000).
II. Recommendations Lacking Objection
The Court finds no error in those portions of the R&R to which Ware has not objected, other than in his footnote, which the Court finds is not adequate as an objection. Accordingly, the Court therefore accepts and adopts as its own the following findings, as explained more fully in the R&R:
(1) The trial court's failure, in a non-capital case, to charge the jury with a lesser included offense did not violate clearly established federal law;
(2) The prosecutor's summation was not sufficiently prejudicial to Ware to violate his constitutional rights; and
(3) Ware's sentence was within the applicable statutory range, and therefore not so harsh as to violate his rights.*fn1