McNeil v. Annucci, No. 1:2018cv01560 - Document 30 (S.D.N.Y. 2019)

Court Description: OPINION & ORDER adopting Report and Recommendation for 23 Motion to Dismiss filed by Anthony J. Annucci, 29 Report and Recommendation. Respondent's motion to dismiss the Petition, (Doc. 23), is GRANTED. The Clerk of Court is respectfull y directed to terminate all pending motions and close the case. In addition, 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, and the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. The Clerk of Court is further directed to mail a copy of this Order to the pro se Petitioner. SO ORDERED. (Signed by Judge Vernon S. Broderick on 6/11/2019) (anc) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

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McNeil v. Annucci Doc. 30 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------X : DIVINE MCNEIL, : : Petitioner, : : -v: : : NYSDOCS COMM ANTHONY J. : ANNUCCI, : : Respondent. : ----------------------------------------------------------X 6/11/2019 18-CV-1560 (VSB) (HP) OPINION & ORDER Appearances: Divine McNeil Pro se Petitioner Nancy Darragh Killian Bronx District Attorney New York, New York Counsel for Respondent VERNON S. BRODERICK, United States District Judge: Pro se Petitioner Christopher Henry filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, (the “Petition,” Doc. 1), on January 5, 2018, 1 while incarcerated at the Downstate Correctional facility. 2 Before me is the Report and Recommendation of United States Magistrate Judge Henry Pitman, (the “Report and Recommendation” or “R&R,” Doc. 29), issued on May 9, 2019, recommending that I deny the Petition in all respects, that a certificate of appealability not be issued, and that certification pursuant to 28 U.S.C. § 1915(a)(3) not be 1 A prisoner’s filings are deemed filed on the date they are delivered to prison officials for mailing. See Hodge v. Greiner, 269 F.3d 104, 106 (2d Cir. 2001). Therefore, I treat the signature date on documents filed by Petitioner as the presumptive filing date of those documents. 2 This action was originally filed in the Eastern District of New York, (see Doc. 1), and was transferred to this District on August 2, 2017, (Doc. 14). 1 Dockets.Justia.com issued. No objections, timely or otherwise, or a request for additional time to file such objections, have been filed. Because I agree with Magistrate Judge Pitman’s determination that Petitioner has failed to exhaust his state remedies or offer a valid explanation for his failure to do so, I ADOPT the Report and Recommendation in its entirety. Accordingly, Respondent’s motion to dismiss the Petition is GRANTED. In reviewing a magistrate judge’s report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “If a party timely objects to any portion of a magistrate judge’s report and recommendation, the district court must make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Bush v. Colvin, No. 15 Civ. 2062 (LGS) (DF), 2017 WL 1493689, at *4 (S.D.N.Y. Apr. 26, 2017) (quoting United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015)). Where, however, a party does not timely object to a report and recommendation, a district court reviews the report and recommendation for clear error. DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009); Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). Petitioner has not submitted objections to the Report and Recommendation; therefore, I apply the clear error standard. DiPilato, 662 F. Supp. 2d at 339; Lewis, 573 F. Supp. 2d at 811; Wilds, 262 F. Supp. 2d at 169. I have carefully reviewed the thorough and well-reasoned Report and Recommendation, and I find no error in Magistrate Judge Pitman’s reasoning and conclusions. I am therefore in complete agreement with Magistrate Judge Pitman and hereby ADOPT the Report and Recommendation in its entirety. Respondent’s motion to dismiss the Petition, (Doc. 23), is GRANTED. The Clerk of Court is respectfully directed to terminate all pending motions and close the case. 2 In addition, 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, and the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. The Clerk of Court is further directed to mail a copy of this Order to the pro se Petitioner. SO ORDERED. Dated: June 11, 2019 New York, New York ______________________ Vernon S. Broderick United States District Judge 3

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