Dudley v. Ryan

Filing 20

Judge Richard G. Stearns: ORDER entered. ORDER ON REPORT AND RECOMMENDATIONS Action on motion: ; adopting Report and Recommendations re 18 Report and Recommendations.(Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-12100-RGS
DANA DUDLEY
v.
KELLY RYAN
ORDER ON REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
December 1, 2014
STEARNS, D.J.
I agree with Magistrate Judge Kelley’s Report and her conclusion that
the state trial court’s refusal to give an instruction on larceny from the
person as a lesser included offense of unarmed robbery did not violate
petitioner’s due process rights (or any other right guaranteed by Federal
law). See Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982). Given the
presentation of the facts at trial, the judge offered the only two options on
which a rational jury could have made a finding of guilt -- armed robbery
or, as it found, unarmed robbery. The Recommendation of the Magistrate

Judge is ADOPTED and the petition is DISMISSED with prejudice. The
Clerk will enter judgment for the Respondent and close the case.1
SO ORDERED.
/s/ Richard G. Stearns
________________________
UNITED STATES DISTRICT JUDGE

Petitioner is advised that any request for the issuance of a Certificate of
Appealability pursuant to 28 U.S.C. § 2253 of the court’s Order dismissing
his petition is also DENIED, the court seeing no meritorious or substantial
basis supporting an appeal.
1