Contreras v. Smith

Filing 17

ORDER re: 15 Report and Recommendation: This Court finds that Judge Pitman's Report and Recommendation is thorough, well-reasoned, and supported by law. Accordingly, this Court concurs with the Report and Recommendation, in its entirety, and a dopts it as the Order of this Court. The petition is therefore denied. Additionally, Petitioner has not made a substantial showing of the denial of a constitutional right, and accordingly, a certificate of appealability shall not issue. (Signed by Judge Richard Owen on 9/22/2011) (ab)

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CRISTINO CONTRERAS,

Petitioner,

07 Civ. 5532 (RO)
v.

JOSEPH T. SMITH,
Respondent

ORDER
OWEN, District Judge:

Pro se Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 in order to

challenge his conviction on the following grounds: 1) the testimony of a witness at trial
exceeded its proper bounds and should have been excluded; 2) the joint representation of
Petitioner and his brother by the same law firm deprived Petitioner of the effective assistance of
conflict-free counsel; 3) the Trial Court improperly excluded an affidavit which potentially
exculpated Petitioner; and 4) Petitioner's appellate counsel was ineffective for failing to
challenge the legal sufficiency of the prosecution's evidence.
Petitioner was convicted after ajury trial of criminal possession of a controlled substance
in the first degree (N.Y. Penal L. § 220.21(1 », criminal possession of a controlled substance in
the third degree (N.v. Penal L. § 220.16(1», and conspiracy in the second degree (N.v. Penal L.

§ 105.15). Petitioner was sentenced to an indeterminate term of imprisonment of twenty-five
years to life, a concurrent indeterminate term of eight and one-third to twenty-five years, and a

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consecutive indetenninate term of three to nine years, and is on conditional parole in order to be
deported.
Petitioner filed the instant petition on June 11,2007. On January 5, 2011, Magistrate
Judge Henry Pitman filed a Report and Recommendation in which he recommended that the
petition be denied. Petitioner did not file an objection to the Report and Recommendation. On
June 1,2011, this case was transferred to this Court.
United States Magistrate Judges hear dispositive motions and make proposed findings of
fact and recommendations, generally in the form of a Report and Recommendation. District
courts review those orders under a clearly erroneous or contrary to law standard of review. 28
US.c. § 636(b)(1)(A). In the event that a party files objections to the magistrate judge's
recommendations, district courts conduct a de novo review of those matters to which a party filed
an objection. Id. § 636(b)(l)(B), (C). First Union Mortgage Corp., v. Smith, 229 F.3d 992, 995
(10th Cir. 2000).
In reviewing a Report and Recommendation, a district court "may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28
US.c. § 636(b)(1 )(C). Where no timely objection has been made by either party, a district court
need only find that "there is no clear error on the face of the record" in order to accept the Report
and Recommendation. Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations
omitted). This standard of review must be applied while remaining cognizant of the court's
obligation to construe a pro se litigant's submissions liberally in the light that they raise the
strongest possible arguments that they suggest. See Triestman v. Fed. Bureau ofPrisons, 470
F.3d 471,474-75 (2d Cir. 2006)(citations omitted).

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This Court finds that Judge Pitman's Report and Recommendation is thorough, wellreasoned, and supported by law. Accordingly, this Court concurs with the Report and
Recommendation, in its entirety, and adopts it as the Order of this Court. The petition is
therefore denied. Additionally, Petitioner has not made a substantial showing of the denial of a
constitutional right, and accordingly, a certificate of appealability shall not issue. 28 U.S.C. §
2253; Middleton v. Attorneys Gen., 396 F.3d 207,209 (2d Cir. 2005). Certification pursuant to
28 U.S.C. § 1915(a)(3) shall not issue because any appeal from this Order would not be taken in
good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962).

So ORDERED.
September

2011

RICHARD OWEN
UNITED STATES DISTRICT JUDGE

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