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Durham v. Menard, 9:18-cv-0739 (BKS/ATB). (2019)

Court: District Court, N.D. New York Number: infdco20191210e42 Visitors: 7
Filed: Dec. 09, 2019
Latest Update: Dec. 09, 2019
Summary: MEMORANDUM-DECISION AND ORDER BRENDA K. SANNES , District Judge . Petitioner Spencer Durham commenced this habeas corpus action under 28 U.S.C. 2254 on June 25, 2018. (Dkt. No. 1). A response to the petition was filed by respondents on October 25, 2018. (Dkt. Nos. 22 and 24). This matter was assigned to United States Magistrate Judge Andrew T. Baxter who, on October 25, 2019, issued a Report-Recommendation recommending that the petition be denied and dismissed and that a certificate of ap
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MEMORANDUM-DECISION AND ORDER

Petitioner Spencer Durham commenced this habeas corpus action under 28 U.S.C. § 2254 on June 25, 2018. (Dkt. No. 1). A response to the petition was filed by respondents on October 25, 2018. (Dkt. Nos. 22 and 24). This matter was assigned to United States Magistrate Judge Andrew T. Baxter who, on October 25, 2019, issued a Report-Recommendation recommending that the petition be denied and dismissed and that a certificate of appealability be denied. (Dkt. No. 31). Magistrate Judge Baxter advised the parties that under 28 U.S.C. § 636(b)(1) and Local Rule 72.1, they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. (Dkt. No. 31, at 26-27). No objections have been filed.

As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment. Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report-Recommendation in its entirety.

For these reasons, it is

ORDERED that the Report-Recommendation (Dkt. No. 31) is ADOPTED in its entirety; and it is further

ORDERED that the petition (Dkt. No. 1) is DENIED AND DISMISSED; and it is further

ORDERED that no certificate of appealability be issued because Petitioner has failed to make "a substantial showing of the denial of a constitutional right" as required by 28 U.S.C. § 2253(c)(2). Any further request for a certificate of appealability must be addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further

ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Source:  Leagle

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