Smith v. Smith

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the attached Memorandum and Order, the court adopts Magistrate Judge Bloom's Report and Recommendation 8 as the opinion of the court. In addition, as recommended in the R eport and Recommendation, the court will not issue a certificate of appealability because petitioner has not made a substantial showing of the denial of any constitutional right, see 28 U.S.C. § 2253(c), and certifies, pursuant to 28 U.S.C.  7; 1915(a)(3), that any appeal from this judgment denying the petition would not be taken in good faith. Counsel for the respondent shall serve a copy of the attached Memorandum and Order upon pro se petitioner and file a declaration of service by 02/17/12. The Clerk of the Court is respectfully directed to enter judgment denying and dismissing the petition in accordance with the Report and Recommendation and to close this case. Ordered by Judge Kiyo A. Matsumoto on 2/15/2012. (Ravi, Sagar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LAVONNE SMITH,
Pro Se Petitioner,
MEMORANDUM & ORDER
- against 10-CV-02268 (KAM)(LB)
JOSEPH T. SMITH, Superintendent,
Shawangunk Correctional Facility,
Respondent.
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MATSUMOTO, United States District Judge:
Petitioner Lavonne Smith (“petitioner”) filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging the sentence imposed by the New York Supreme Court,
Kings County, for a 1996 conviction of two counts of Robbery in
the First Degree.
Habeas Corpus.)

(See generally ECF No. 1, Petition for Writ of

Presently before the court is a Report and

Recommendation issued by Magistrate Judge Bloom on November 21,
2011, recommending that this court deny and dismiss the petition.
(ECF No. 8, Report and Recommendation.)
On November 21, 2011, notice of the Report and
Recommendation was sent to pro se petitioner via first-class mail
and to the respondent via the court’s electronic filing system.
As explicitly noted at the end of the Report and Recommendation,
any written objections to the Report and Recommendation were to
be filed within fourteen (14) days of service of the Report and
Recommendation, or by December 8, 2011.

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(Report and

Recommendation at 11); see 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b).

The statutory period for filing objections has expired,

and no objections to Magistrate Judge Bloom’s Report and
Recommendation have been filed.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

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Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985)).
Upon a review of the Report and Recommendation, and
considering that the parties have failed to object to any of
Magistrate Judge Bloom’s thorough and well-reasoned
recommendations, the court finds no clear error in Magistrate
Judge Bloom’s Report and Recommendation and hereby affirms and
adopts the Report and Recommendation as the opinion of the court.
In addition, as recommended in the Report and Recommendation, the
court will not issue a certificate of appealability because
petitioner has not made a substantial showing of the denial of
any constitutional right, see 28 U.S.C. § 2253(c), and certifies,

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pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
judgment denying the petition would not be taken in good faith.
Counsel for the respondent shall serve a copy of this
Memorandum and Order upon pro se petitioner and file a
declaration of service by February 17, 2012.

The Clerk of the

Court is respectfully directed to enter judgment denying and
dismissing the petition in accordance with the Report and
Recommendation and to close this case.
SO ORDERED.
Dated:

February 15, 2012
Brooklyn, New York
_________ /s/__
Kiyo A. Matsumoto
United States District Judge

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