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Afrika v. Herbert

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


August 10, 2007

NACHE AFRIKA PETITIONER,
v.
VICTOR HERBERT, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court

ORDER

This case was referred to Magistrate Judge Victor E. Bianchini pursuant to 28 U.S.C. § 636(b)(1), on November 15, 2006. On June 25, 2002, petitioner filed a petition for writ of habeas corpus. On April 12, 2007, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that the petition be denied.

Petitioner filed objections to the Report and Recommendation on June 19, 2007.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, petitioner's petition for a writ of habeas corpus is denied.

The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and therefore denies a certificate of appealability. 28 U.S.C. § 2253(c)(2).

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith, and therefore denies leave to appeal in forma pauperis. Further requests to proceed on appeal in forma pauperis must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.

20070810

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