Santana v. Mr. Brown

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION for 23 Report and Recommendations: Here, after careful review of the record and parties' submissions, Judge Freeman found that the alleged error by the trial court-the admission over counsel's obje ction of purportedly irrelevant and prejudicial evidence relating to an uncharged sale of heroin by another person--did not render Petitioner's trial fundamentally unfair. In her opinion, issued February 26, 2013, Judge Freeman informed the part ies of their right to file written objections within 14 days of the R&R's issuance. To date, neither party has filed an objection. Having found no error on the face of the record, the Court adopts Judge Freeman's R&R in full. Petitioner 9;s petition for a writ of habeas corpus is DISMISSED in its entirety, and as Petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. 2253(c)(2), the Court declines to issue a certificate of appealability. (Signed by Judge J. Paul Oetken on 6/12/2013) Copies Mailed By Chambers. (lmb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

l.1SDC SDNY
DOCUME.NT

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ELECTRO~ICALLY FILED

JOSE SANTANA,
Petitioner,
09 Civ. 5176 (JPO)
ORDER ADOPTING
REPORT AND
RECOMMENDATION

-v-

MR. BROWN, Acting Superintendent, Sing-Sing
Correctional Facility,
Respondent.

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)(

1. PAUL OETKEN, District Judge:

Pro se petitioner Jose Santana ("Petitioner") brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, seeking review of his jury conviction in New York State
Supreme Court, Bronx County, on five counts of Criminal Sale of a Controlled Substance in or
near School Grounds. For the reasons that follow, the Report and Recommendation of
Magistrate Judge Debra C. Freeman is adopted in full. Accordingly, the petition is dismissed in
its entirety, and the Court declines to issue a certificate of appealability pursuant to 28 U.S.C.
2253(c)(1 )(A).
I.

Standard of Review
"Where parties receive clear notice of the consequences, failure timely to object to a

magistrate's report and recommendation operates as a waiver of further judicial review of the
magistrate's decision." Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002);

accord Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to
any purported error or omission in a magistrate judge's report waives further judicial review of

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COPIES MATLEPJTSJ. 1 2 2013
PRO SE PARTY ON _i_UN_

the point."). Accordingly, Judge Freeman's Report and Recommendation ("R&R") is reviewed
for clear error.

II.

Conclusion and Order
Here, after careful review of the record and parties' submissions, Judge Freeman found

that the alleged error by the trial court-the admission over counsel's objection of purportedly
irrelevant and prejudicial evidence relating to an uncharged sale of heroin by another persondid not render Petitioner's trial fundamentally unfair.
In her opinion, issued February 26, 2013, Judge Freeman informed the parties of their
right to file written objections within 14 days of the R&R's issuance. To date, neither party has
filed an objection.
Having found no error on the face of the record, the Court adopts Judge Freeman's R&R
in full. Petitioner's petition for a writ of habeas corpus is DISMISSED in its entirety, and as
Petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.c.
2253(c)(2), the Court declines to issue a certificate of appealability.

SO ORDERED.
Dated: New York, New York
June 12,2013

United States District Judge

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