Opinion
05 Civ. 2684 (PKC).
July 5, 2006
MEMORANDUM AND ORDER
On June 22, 1999, pro se petitioner Louis Rosario was convicted in Supreme Court, New York County, of first degree robbery, first degree criminal use of a firearm, and second degree criminal possession of a weapon. Petitioner received a sentence as a second violent felony offender to concurrent determinate terms of imprisonment of twenty-five years, twenty-five years and seven years, respectively. (Docket No. 2; Pet. ¶¶ 1-5) Petitioner appealed his sentence, and it was affirmed. See People v. Rosario, 302 A.D.2d 266, 266 (1st Dep't 2003). Petitioner then sought leave to appeal to the New York Court of Appeals, and leave was denied. 100 N.Y.2d 645 (2003).
Petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. 2254, on the following grounds: (1) the prosecution's introduction of the victim's prior consistent statements was reversible error; (2) the verdict was legally insufficient and against the weight of the evidence; (3) the prosecutor's summation improperly shifted the burden of proof; (4) the trial judge's instruction as to criminal liability for acting in concert was erroneous; (5) the trial judge improperly denied the jury's request for testimonial readback; and (6) Petitioner's sentence was excessive.
I referred the petition to the Honorable Andrew J. Peck, United States Magistrate Judge. On May 25, 2006, Judge Peck issued a 62-page Report and Recommendation ("RR") in which he recommended that the Court deny the petition. The R R advised the parties that they had ten days from service of the R R to file any objections, and that failure to timely file such objections would result in any objections being waived. As of the date of this Order, no such objections have been filed. Therefore, petitioner has waived any right to object to the R R. See e.g., Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992), cert. denied, 506 U.S. 1038 (1992).
Having reviewed Judge Peck's R R, I find it to be well reasoned and thoroughly grounded in law. Judge Peck reviewed petitioner's submissions, the transcripts of petitioner's state court proceedings and case law governing the issues raised in the petition and properly concluded that: (1) Petitioner's first, fourth and fifth claims are procedurally barred; (2) Petitioner's weight of the evidence claim is not cognizable on habeas review and his contentions as to the sufficiency of the evidence are meritless; (3) Petitioner's claim that the prosecutor's summation deprived him of a fair trial is meritless; and (4) Petitioner's claim that his sentence was excessive does not provide a basis for habeas relief.
The R R is adopted in its entirety, and the petition is DENIED. The Clerk is directed to enter judgment in favor of the respondent.
Petitioner has not made a substantial showing of the denial of a constitutional right and, accordingly, a certificate of appeal ability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED.