United States District Court, S.D. New York
ORDER ACCEPTING RECOMMENDATION AND ADOPTING MAGISTRATE JUDGE'S REPORT AS THE OPINION OF THE COURT
COLLEEN McMAHON, District Judge.
> I have reviewed the Report of The Hon. James C. Francis, U.S.M.J., which recommends that the petition for a writ of habeas corpus be denied and the action dismissed. I accept the report's recommendation and adopt Judge Francis' excellent and thorough opinion as the opinion of the court, with the following addition: Petitioner's argument that he was the victim of preindictment delay even though the statute of limitations had not run fails for the very reason that it succeeded in this court's decision in United States v. Santiago, 987 F.Supp., 465 (S.D.N.Y. 2013). Petitioner Almonte has made absolutely no non-speculative showing of actual prejudice, which is a pre-requisite for such a finding. Nor has he come close to establishing that it violated notions of fundamental fairness to indict him 10 years after the shooting in which he participated, which Wilfredo Santiago was able to do. Indeed, a reading of Santiago virtually compels agreement with the learned Magistrate Judge's conclusion.
The petition is denied, and this action is dismissed with prejudice.
As Petitioner has made no substantial showing of the denial of a constitutional right, there is no question of substance for appellate review. Therefore, no certificate of appealability shall issue. 28 U.S.C. § 2253; see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). I certify, pursuant to 28 U.S.C. § 1915(a), ...