Opinion
09-CV-2353 (SLT) (JMA)
04-12-2012
BILLY COOPER, Petitioner, v. J.F. BELLNIER, Superintendent, Upstate Correctional Facility, Respondent.
MEMORANDUM & ORDER
TOWNES, United States District Judge:
Billy Cooper ("Petitioner") filed the instant pro se petition for a writ of habeas corpus (the "Petition") on April 21, 2009, having been convicted of murder in the second degree and criminal possession of a loaded firearm in the second degree following a jury trial in the New York State Supreme Court, Queens County. On December 4, 2009, this Court referred the matter to Magistrate Judge Joan M Azrack for a report and recommendation ("R&R"). On March 31,2010, Judge Azrack issued an R&R recommending that this Court deny the Petition. It was further recommended that no certificate of appealability issue due to Petitioner's failure to make a substantial showing of the denial of a constitutional right. This Court adopts Judge Azrack's R&R in its entirety.
A district court judge may designate a magistrate judge to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1)- Within fourteen days of service of the recommendation, any party may file written objections to the magistrate's report. See id. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendation. See id.
The Court is not required to review the factual or legal conclusions of the magistrate judge as to those portions of the R&R to which no objections have been made. See Thomas v. Ant, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). In addition, failure to file timely objections may waive the right to appeal this Court's order. See 28 U.S.C. § 636(b)(1); Small v. Sec 'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
In the instant case, objections to the R&R were due within fourteen days of receipt of the R&R, which was mailed to Petitioner on March 31, 2010. To date, no objections have been filed with this Court. Upon review, this Court affirms and adopts the R&R of Judge Azrack in its entirety. Accordingly, Plaintiffs petition for a writ of habeas corpus is denied. Further, a certificate of appealability shall not issue.
SO ORDERED.
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SANDRA L. TOWNES
United States District Judge
Date: April 10, 2012
Brooklyn, New York