UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

MICHAEL SCOTT, 

Petitioner, 

-vJOSEPH T. SMITH, 

Respondent. 

KENNETH M. KARAS, District Judge: 

, . 


, t 

~ 

Case No. 07-CY-3395 (KMK)(LMS) 


ORDER ADOPTING 


REPORT & RECOMMENDATION 


Petitioner, Michael Scott ("Petitioner") was convicted under Westchester County 

Indictment Number 00-00408 of one count of Murder in the Second Degree/Depraved 

Indifference Murder under N.Y. Penal Law § 125.25(2), and one count of Reckless 

Endangerment in the First Degree under N.Y. Penal Law § 120.25. (Pet. ~ 5.) On May 9, 2001, 

Petitioner was sentenced in the County Court of Westchester County to an indeterminate term of 

twenty-two years to life on the murder count and to a consecutive indeterminate term of twoand-one-third to seven years on the reckless endangerment count. (Mem. of Law and Resp't's 

App. 1-2.) On December 27,2005, the Appellate Division, Second Department, affirmed 

Petitioner's conviction. See People v. Scott, 805 N.Y.S.2d 848 (App. Div. 2005). On April 19, 

2006, Petitioner was denied leave to appeal to the Court of Appeals. See People v. Scott, 849 

N.E.2d 981 (N.Y. 2006). 

On April 13,2007, Petitioner filed a petition for a Writ of Habeas Corpus ("Petition") 

pursuant to 28 U.S.C. § 2254. (Dkt. No.!.) Petitioner seeks habeas relief on one ground: that 

Petitioner's due process rights were violated because his conviction was not supported by legally 

sufficient evidence. (Pet. ~ 13.) 

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The case was referred to the Honorable Lisa Margaret Smith. (Dkt. No.2.) On June I, 

20 10, Magistrate Judge Smith issued a thorough Report and Recommendation ("R&R") 

recommending that this Court dismiss the Petition in its entirety. (Dkt. No. 30.) Petitioner did 

not file a timely objection to the substance ofthe R&R.I 

When no objections are filed, the Court reviews a R&R on a dispositive motion for clear 

error. See Eisenberg v. New Eng. Motor Freight. Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 

2008); Donahue v. Global Home Loans & Fin., Inc., No. 05-CV -8362, 2007 WL 831816, at *1 

(S.D.N. Y. Mar. 15, 2007). The Court has reviewed the R&R and the Petition, and finding no 

error, clear or otherwise, adopts the R&R. 

Accordingly, it is hereby 

ORDERED that the Report and Recommendation, dated June 1,2010, is ADOPTED in 

its entirety. It is further 

ORDERED that Petitioner's writ of habeas corpus is DISMISSED with prejudice. It is 

further 

ORDERED that because Petitioner has not made a substantial showing of the denial of a 

constitutional right, a certificate of appealability will not issue, see 28 U.S.C. § 2253(c)(2); 

Lucidore v. NY. Slate Div. ofParole, 209 F.3d 107, 111-12 (2d Cif. 2000), and the Court 

certifies, pursuant to 28 U.S.C. § 19l5(a)(3), that any appeal from this Order would not be taken 

in good faith. It is further 

I Petitioner submitted a timely Objection to the R&R, but the Objection only requested a 

review of Magistrate Judge Smith's earlier Orders denying Petitioner's request to be appointed 

counsel, without addressing the substance of the R&R. (Dkt. No. 31.) The Court issued an 

Order on July 27, 2010, denying without prejudice Petitioner's request for appointment of 

counsel, and granting an additional three weeks to file an objection to the substance of the R&R. 

(Dkt. No. 32.) No further objections were filed. 

2 

Case 7:07-cv-03395-KMK-LMS Document 34 Filed 02/07/12 Page 2 of 4
SO ORDERED. 

Dated: White Plains, New York 

February 1-,2012 

K ETHM.KA 

ED STATES DISTRICT JU E 

ORDERED that the Clerk of the Court is respectfully directed to enter a judgment in 

favor of Respondent and to close this case. 

3 


Case 7:07-cv-03395-KMK-LMS Document 34 Filed 02/07/12 Page 3 of 4
Service List 


For Mailing by Clerk's Office: 


Michael Scott 


DIN #01-A-2906 


Sing Sing Correctional Facility 


354 Hunter Street 


Ossining, NY 10562 


Joseph M. Latino, Esq. 


Office of the District Attorney of Westchester County 


Westchester County Courthouse 


III Dr. Martin Luther King, Jr., Blvd. 


White Plains, NY 10601 


Copy To: 


Honorable Lisa M. Smith 


United States Magistrate Judge 


Case 7:07-cv-03395-KMK-LMS Document 34 Filed 02/07/12 Page 4 of 4