Smith v. Noeth ( 2023 )

KED STATES DISTRIG UNITED STATES DISTRICT COURT XS FILED TS WESTERN DISTRICT OF NEW YORK By □□ AUG 01 2923 ieee ese see ee : ie Bybee | wt ITH S7 CEWenGuTH, Oy BRIAN SMITH, ERN DISTRICT OF w Petitioner, 18-CV-883 (JLS) (MJR) v. JOSEPH NOETH, Superintendent, Attica Correctional Facility Respondent. DECISION AND ORDER Petitioner Brian Smith commenced this action pursuant to 28 U.S.C. § 2254 seeking a Writ of Habeas Corpus by a Person in State Custody based on a judgment entered against him in Monroe County Court on November 2, 2007. Dkt. 1. In particular, a jury convicted him of first-degree manslaughter and second-degree criminal possession of a weapon in violation of New York law. See id. Petitioner challenges the constitutionality of those convictions on numerous grounds— including that the prosecution violated its Brady obligations, that Petitioner was improperly denied an evidentiary hearing, and that Petitioner's counsel was ineffective. Id. This Court! ultimately referred the case to United States Magistrate Judge Michael J. Roemer for all proceedings under 28 U.S.C. §§ 636(b)(1)(A), (B), and (C). Dkt. 15. Petitioner filed a memorandum in support of his petition, Dkt. 23, and then filed a “Traverse of Law in Support of Habeas Corpus Reply.” Dkt. 29. Respondent filed an Answer and a memorandum in opposition. Dkt. 33, 37. Petitioner replied. Dkt. 38. On June 27, 2028, Judge Roemer issued a Report, Recommendation, and Order (“R&R”) recommending that this Court dismiss the petition. Dkt. 39. He further recommended that this Court deny a “certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) because Petitioner failed to make a ‘substantial showing of the denial of a constitutional right.” Jd. at 73 (quoting 28 U.S.C. §2253(c)(2)). Neither party filed objections, and the time to do so has expired. A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court must conduct a de novo review of those portions of a magistrate judge’s recommendation to which a party objects. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a district court to review the recommendation of a magistrate judge to which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). 1 The case was originally assigned to Hon. Lawrence J. Vilardo. It was reassigned to the undersigned on February 14, 2020. See Dkt. 12. This Court carefully reviewed the comprehensive R&R and the relevant record. Based on that review, the Court accepts and adopts Judge Roemer's recommendation. Thus, for the reasons stated above and in the R&R, the relief sought in the petition is DENIED and the petition is DISMISSED. Further, because Petitioner failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2258(c)(2), the Court DENIES a certificate of appealability. The Clerk of Court shall close this case. SO ORDERED. Dated: August 1, 2028 Buffalo, New York -[ (dex CD L. SINATRA, JR. Wn” NITED STATES DISTRICT LODGE