
    Kevin LEWIS, a/k/a Kevin Lucas, Petitioner, v. Hans J. WALKER, Superintendent of Auburn Correctional Facility, and Hon. Robert Abrams, Attorney General of the State of New York, Respondents.
    No. 90 Civ. 2188 (RPP).
    United States District Court, S.D. New York.
    March 20, 1991.
    Kevin Lewis, pro se.
    Robert Abrams, Atty. Gen., State of N.Y., Dept, of Law, New York City, for respondents.
   OPINION AND ORDER

ROBERT P. PATTERSON, Jr., District Judge.

This Court, having reviewed and accepted the Report and Recommendation of Magistrate Francis dated December 19, 1990; having denied the petition for habeas corpus by Order dated January 15, 1991 and filed January 16, 1991; having reviewed the petitioner’s motion for reargument filed January 29, 1991 and having denied said motion on February 22, 1991, denies petitioner’s request for a certificate of probable cause for appeal pursuant to Rule 22 of the Federal Rules of Appellate Procedure.

Petitioner was convicted on May 9, 1986 in New York State Supreme Court, New York County, for criminal sale of a controlled substance in the third degree, pursuant to N.Y. Penal Law § 220.39(1), two counts of criminal possession of a controlled substance in the third degree, N.Y. Penal Law § 220.16(1), and criminal possession of controlled substances in the fourth degree, N.Y. Penal Law § 220.09(1). His conviction was unanimously affirmed, without opinion, by the Appellate Division, First Department, on April 6, 1989. 149 A.D.2d 990, 540 N.Y.S.2d 119. Leave to appeal to the New York Court of Appeals was denied.

Petitioner’s enumerated claims for relief are substantially the same issues raised in his appeal to the Appellate Division. Petitioner’s claims of insufficient evidence to sustain conviction, impermissible bolstering of identification evidence by the purchaser, an undercover policewoman, improper identification procedures, inadequate evidence to show the substances on question were cocaine and heroin, ineffective representation at trial, impermissible prosecutorial summation and improper jury charge were dealt with at length in Magistrate Francis' Report and Recommendation and demonstrated to be unmeritorious. In view of the foregoing, the Court is satisfied that no certificate of probable cause should issue. The Petitioner, having demonstrated an inability to pay fees and costs or to give security therefor, having evidenced a belief in his entitlement to redress and having stated the issues which he intends to present on appeal, his application to proceed in forma pauperis is granted.

IT IS SO ORDERED.  