Wallace v. LaClair

Filing 20

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS: No party has objected to the R&R, and the time for doing so has passed. When decidingwhether to adopt an R&R, a district court "may accept, reject, or modify, in whole or in part, the f indings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). To accept those portions of the R&R to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (internal quotation marks omitted). The Court has reviewed the record and finds no clear error in Magistrate Judge Pohorelsky's recommen dation that Wallace's habeas petition and motion for an evidentiary hearing be denied.' Since Wallace has failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The Clerk of the Court is directed to enter judgment and to close the case. Ordered by Chief Judge Carol Bagley Amon on 4/14/2014. (fwd for judgment) (Fernandez, Erica)

FILED

IN CLERK'S OFFICE
U.S. Dk'!TRICTCOURTE.D.N.Y.

* APR 16 2014 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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O'NEIL WALLACE,

BROOKLYN OFFICE

NOT FOR PUBLICATION
MEMORANDUM & ORDER
12-CV-02117 (CBA) (VVP)

Petitioner,
- against DARWIN LACLAIR, Superintendent, Franklin
Correctional Facility,
Respondent.

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AMON, Chief United States District Judge.
On April 27, 2012, O'Neil Wallace filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Wallace argued that his criminal conviction in New York State Court for
manslaughter in the second degree, stemming from his October 19, 2007 shooting of his wife,
should be vacated because (I) the evidence was legally insufficient to support his conviction, (2)
the trial court erred in allowing into evidence a 911 call placed by the victim's mother, and (3)
his trial counsel was ineffective for (a) failing to pursue a defense that medical malpractice was
an intervening cause of the victim's death and (b) failing to preserve for appellate review the
claim that the evidence was insufficient to support his conviction. The Court referred Wallace's
habeas petition, as well as his motion for an evidentiary hearing, to Magistrate Judge Viktor V.
Pohorelsky for report and recommendation. On November 14, 2013, Magistrate Judge
Pohorelsky issued a Report and Recommendation ("R&R") recommending that the Court deny
both Wallace's habeas petition in its entirety and his motion for an evidentiary hearing.
No party has objected to the R&R, and the time for doing so has passed. When deciding
whether to adopt an R&R, a district court "may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). To accept

I

those portions of the R&R to which no timely objection has been made, "a district court need
only satisfy itself that there is no clear error on the face of the record." Jarvis v. N. Am. Globex
Fund. L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (internal quotation marks omitted).
The Court has reviewed the record and finds no clear error in Magistrate Judge
Pohorelsky's recommendation that Wallace's habeas petition and motion for an evidentiary
hearing be denied. 1 Since Wallace has failed to make a "substantial showing of the denial of a
constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The
Clerk of the Court is directed to enter judgment and to close the case.
SO ORDERED.

Dated: Brooklyn, New York
April
2014

J'"f

,

s/Carol Bagley Amon
-

1

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Because Wa11ace's ineffective assistance of counsel claims are clearly meritless, the Court does not rely on that

part of the R&R discussing whether they may be procedurally barred or unexhausted. (See R&R at 17-19.)

2