Malloy v. Royce, No. 9:2019cv00988 - Document 29 (N.D.N.Y 2020)

Court Description: DECISION AND ORDER that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 28 ) is ACCEPTED and ADOPTED in its entirety. Petitioner's Petition (Dkt. No. 2 ) is DENIED and DISMISSED. A certificate of appealability is DENIED. Signed by Chief Judge Glenn T. Suddaby on 10/14/2020. (Copy served upon petitioner via regular mail)(sal )
Download PDF
Malloy v. Royce Doc. 29 Case 9:19-cv-00988-GTS-ATB Document 29 Filed 10/14/20 Page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ LEVI MALLOY, Petitioner, 9:19-CV-0988 (GTS/ATB) v. M. ROYCE, Superintendent of Green Haven Corr. Facility, Respondent. _____________________________________________ APPEARANCES: LEVI MALLOY, 14-A-3996 Petitioner, Pro Se Green Haven Correctional Facility P.O. Box 4000 Stormville, New York 12582 HON. LETITIA A. JAMES Attorney General for the State of New York Counsel for Respondent 28 Liberty Street New York, New York 10005 LISA E. FLEISCHMANN, ESQ. Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court in this habeas corpus proceeding filed by Levi Malloy (“Petitioner”) pursuant to 28 U.S.C. § 2254, is the Report-Recommendation of Chief United States Magistrate Judge Andrew T. Baxter recommending that the Petition be denied and dismissed, and that a certificate of appealability be denied. (Dkt. No. 28.) Petitioner has not filed an objection to the Report-Recommendation, and the deadline by which to do so has expired. (See generally Docket Sheet.) Case 9:19-cv-00988-GTS-ATB Document 29 Filed 10/14/20 Page 2 of 2 After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter’s thorough Report-Recommendation, the Court can find no clear-error in the Report-Recommendation. 1 Magistrate Judge Baxter employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein, Petitioner’s Petition is denied and dismissed, and a certificate of appealability is denied. ACCORDINGLY, it is ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 28) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Petitioner’s Petition (Dkt. No. 2) is DENIED and DISMISSED; and it is further ORDERED that a certificate of appealability is DENIED. Dated: October 14, 2020 Syracuse, New York 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).