Whitfield v. Graham

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Accordingly, the Court adopts the Report in its entirety, and forthe reasons set forth therein, denies the Petition for a writ of habeas corpus. Because Petitioner has not made a "substantial showing of a denial of a constitutional right," 28 U.S.C. § 2253( c )(2), a certificate of appealability will not issue. The Clerk of the Court is respectfully directed to close this case. (Signed by Judge Richard J. Sullivan on 11/29/2011) Copies Mailed By Chambers. (cd)

_.
USDSSDNY

DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELECTRONICALLY FILED
DOC#: ______________
DATE FILED: -.JlJ-q-jI

ERIC WHITFIELD,

Petitioner,
-v-

No. 10 Civ. 3038 (RJS) (RLE)
ORDER ADOPTING REPORT AND
RECOMMENDATION

HAROLD N. GRAHAM,
Respondent.
RICHARD J. SULLIVAN, District Judge:

Pro se Petitioner Eric Whitfield seeks a writ of habeas corpus pursuant to 28 U.S.C. §

2254. Petitioner tiled his Petition in the Western District of New York on March 2, 2010; it was
transferred to this District on April 14,2010. By Order dated April 22, 2010, this matter was
referred to the Honorable Ronald L. Ellis, Magistrate Judge.
On December 29,2010, Judge Ellis issued the attached Report and Recommendation (the
"Report") recommending that the Petition be denied. In the Report, Judge Ellis advised the
parties that failure to file timely objections to the Report would constitute a waiver of those
objections. See 28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b). No party has filed objections to
the Report, and the time to do so has expired. Cf Frank v. Johnson, 968 F.2d 298 (2d Cir.
1993).
When no objections to a report and recommendation are made, the Court may adopt the
report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F.
Supp. 2d 250, 253 (S.D.N.Y. 2005); La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y.
2000). After reviewing the record, the Court finds that Judge Ellis's well-reasoned and careful
Report is not facially erroneous. Accordingly, the Court adopts the Report in its entirety, and for

the reasons set forth therein, denies the Petition for a writ of habeas corpus. Because Petitioner
has not made a "substantial showing of a denial of a constitutional right," 28 U.S.c. §
2253( c)(2), a certificate of appealability will not issue. The Clerk of the Court is respectfully
directed to close this case.
SO ORDERED.

Dated:

November 29,2011
New York, New York

2

A copy of this Order has been mailed to:

Pro se Petitioner:
Eric Whitfield
04-A-3512
Auburn Correctional Facility
Box 618
Auburn, NY 13021
Attorney for Respondent:
Susan Holly Gliner
New York County District Attorney's Office
1 Hogan Place
New York, NY 10013

3