Mabeus v. Colvin, No. 9:2016cv01141 - Document 20 (N.D.N.Y 2018)
Court Description: DECISION AND ORDER accepting and adopting # 19 Magistrate Judge Stewart's Report and Recommendation in its entirety. The petition in this matter is denied and dismissed. A certificate of appealability will not issue with respect to any of the claims set forth in the Petition because the Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. §2253(c)(2). Signed by Chief Judge Glenn T. Suddaby on 9/11/18. (lmw) (Copy served upon pro se petitioner via regular mail)
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Mabeus v. Colvin Doc. 20 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ DAVID MABEUS, Petitioner, 9:16-CV-1141 (GTS/DJS) v. JOHN COLVIN, Superintendent, Five Points Corr. Fac., Respondent. __________________________________________ APPEARANCES: OF COUNSEL: DAVID MABEUS, 04-A-4840 Petitioner, Pro Se Five Points Correctional Facility Caller Box 119 Romulus, New York 14541 HON. BARBARA UNDERWOOD Attorney General for the State of New York Counsel for Respondent 28 Liberty Street New York, New York 10005 MARGARET A. CIEPRISZ, ESQ. Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in his habeas corpus proceeding filed by David Mabeus (“Petitioner”) pursuant to 28 U.S.C. § 2254, is the Report-Recommendation of United States Magistrate Judge Daniel J. Stewart recommending that the Petition be denied and dismissed pursuant to 28 U.S.C. § 2253(c)(2), and that a certificate of appealability not issue. (Dkt. No. 19.) Petitioner has not filed an Objection to the Report-Recommendation, and the time in which to do so has expired. (See generally Docket Sheet.) After carefully reviewing all of the papers in this action, including Magistrate Judge Dockets.Justia.com Stewart’s thorough Report-Recommendation, the Court can find no clear error in that ReportRecommendation.1 Magistrate Judge Stewart employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 19, Parts I-II.) As a result, the Court accepts and adopts Magistrate Judge Stewart’s Report-Recommendation in its entirety for the reasons stated therein. ACCORDINGLY, it is ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 19) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that the Petition (Dkt. No. 1) in this matter is DENIED and DISMISSED; and it is further ORDERED that a certificate of appealability not issue with respect to any of the claims set forth in the Petition because Petitioner has not made a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2). Dated: September 11, 2018 Syracuse, New York ____________________________________ HON. GLENN T. SUDDABY Chief United States District Judge 1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2
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