Santos v. Artus

Filing 51

OPINION AND ORDER: Careful review of the thorough and well-reasoned Report reveals that there is no facial error in its conclusions. The Report, which is incorporated by reference herein, is adopted without modification. The petition for habeas corpu s is denied, and the Clerk of Court is directed to close this case. The parties' failure to file written objections precludes appellate review of this decision. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008); Small v. Sec' y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). The Court therefore declines to issue a certificate of appealability, and certifies that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for the purpose of an appeal Coppedge v. United States, 369 U.S. 438, 445 (1962). (Signed by Judge Paul A. Engelmayer on 6/3/2013) (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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JAVIER SANTOS,
Petitioner,

08 Civ. 5087 (PAE) (FM)

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OPINION AND ORDER
DALE ARTUS,
Respondent.

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PAUL A. ENGELMAYER, District Judge:
On June 2, 2008, petitioner Javier Santos ("Santos") filed this petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254. Dkt. 1. On July 29,2008, Judge William H.
Pauley III, to whom this case was originally assigned, referred the action to Magistrate Judge
Frank Maas for the preparation of a Report and Recommendation pursuant to 28 U.S.C.

§ 636(b). Dkt. 2. On April 17,2009, Magistrate Judge Maas granted Santos's request for the
appointment of an investigator. See Dkt. 13. On April 14--15, 2011, and May 12,2011,
Magistrate Judge Maas held an evidentiary hearing to address the factual question whether
Santos's trial counsel, Steven Bartley, Esq., failed to investigate Santos's potential intoxication
defense adequately prior to trial. See Dkt. 20, 33,35,48-49.
On October 4, 2011, this case was reassigned to my docket. See Dkt. 41. On May 14,
2013, Magistrate Judge Maas issued his Report and Recommendation (the "Report") to this
Court. Dkt. 50. The Report stated that the parties were required to file any objections within 14
days from the date of the Report's issuance. See Report 58. To date, the Court has received no
objections.

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DISCUSSION

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
U.S.c. § 636(b)(1)(C). When specific objections are made, "[t]he district judge must determine
de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.
R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34,38 (2d Cir. 1997). To accept

those portions of the report 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." King v. Greiner, No. 02
Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (citing Wilds v. United
Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)); see also Edwards v. Fischer, 414 F.
Supp. 2d 342,346-47 (S.D.N.Y. 2006) (citation omitted).

CONCLUSION

Careful review of the thorough and well-reasoned Report reveals that there is no facial
error in its conclusions. The Report, which is incorporated by reference herein, is adopted
without modification. The petition for habeas corpus is denied, and the Clerk of Court is
directed to close this case.
The parties' failure to file written objections precludes appellate review of this decision.
See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008); Small v. Sec yofHealth &
Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). The Court therefore declines to
issue a certificate of appealability, and certifies that any appeal from this order would not be
taken in good faith; therefore, in forma pauperis status is denied for the purpose of an appeaL
Coppedge v. United States, 369 U.S. 438, 445 (1962).

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SO ORDERED.

Paul A. Engelmayer
United States District Judge
Dated: June 3, 2013
New York, New York

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