Deberry v. Spitzer et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Having reviewed the objections to Magistrate Judge Levy's Report & Recommendation dated February 17, 2011 33 I adopt the Report in its entirety and deny the petition for a writ of habeas corpus. As Judge Levy describes, petitioner's Sixth Amendment right to present a defense was not violated where the witness, Mr. Velasquez, was known to defense counsel, who chose not to call him for tactical reasons. Treating the claim as a challenge to t he trial court's ruling on the state motion to vacate the conviction, I agree with Judge Levy's analysis at footnote 3 of his Report & Recommendation. The objections to the other portions of the R&R are also without merit. Because petition er has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253. The Clerk of Court is directed to enter judgment for respondent. Ordered by Senior Judge Nina Gershon on 5/17/2012. (fwd for judgment) (Fernandez, Erica)

FILED

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BROOKLYN OFFICE

ERIC DEBERRY,

Petitioner,

MAY 2 1 2012

ORDER

-against-

05 CV 5286 (NG)(RML)
ELLIOT SPITZER, New York State Attorney
General, and DALE ARTIS, Superintendent,
Respondent.

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GERSHON, United States District Judge:
Having reviewed the objections to Magistrate Judge Levy's Report & Recommendation dated
February 17, 2011, I adopt the Report in its entirety and deny the petition for a writ of habeas corpus.
As Judge Levy describes, petitioner's Sixth Amendment right to present a defense was not
violated where the witness, Mr. Velasquez, was known to defense counsel, who chose not to call him
for tactical reasons. Treating the claim as a challenge to the trial court's ruling on the state motion
to vacate the conviction, I agree with Judge Levy's analysis at footnote 3 of his Report &
Recommendation. The objections to the other portions of the R&R are also without merit.
Because petitioner has not made a substantial showing of the denial of a constitutional right,
a certificate of appealability will not issue. 28 U.S.C. § 2253. The Clerk of Court is directed to enter
judgment for respondent.

SO ORDERED.
/f

I

s/NG

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NINA GERSHON
United States District Judge
Dated: May 17,2012
Brooklyn, New York