Woolsey v. Mitzel

Filing 22

DECISION & ORDER: that the Court Accepts and Adopts the recommendations made by Magistrate Judge Peebles in the February 27, 2017 Report, Recommendation and Order dkt. # 11 ; that the 2 petition is Denied and Dismissed; that Petitioner's moti on for reconsideration of the transfer order from the Eastern District of New York (Dkt. No. 8 ) is Denied as moot. The Court also finds that the petition presents no questions of substance for appellate review, and that the Petitioner has failed t o make a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2); see Fed. R. App. P. 22(b). Accordingly, a certificate of appealability will not issue; that Respondents' motion to dismiss (Dkt. # 20 ) is D enied as moot; and that Petitioner's motion for Leave to Proceed In Forma Pauperis in Support of the Application to Appoint Counsel (Dkt. # 21 ) is Denied as moot. Signed by Senior Judge Thomas J. McAvoy on 05/22/2017. (Copy of Decision and Order was served on pro se petitioner at 132 North Washington Street, Winchester, VA 22601 and pro se respondents at 295 Lucas Avenue, Kingston, NY 12401 via regular and certified mail on 05/22/2017.)(hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JEANETTE WOOLSEY, on behalf
of R.M.R.,
Petitioner,

Civil Action No.
1:17-CV-0074 (TJM/DEP)

v.
DESIREE MITZEL and CHARLES
MITZEL,
Respondents.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was

referred to the Hon. David E. Peebles, Chief United States Magistrate Judge, for a Report
and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.4. In his
February 27, 2017 Report, Recommendation and Order, dkt. # 11, Magistrate Judge
Peebles recommends that (1) the petition (Dkt. No. 2) in this matter be dismissed; (2)
Petitioner's motion for reconsideration of the transfer order from the Eastern District of
New York (Dkt. No. 8) be denied as moot; and (3) a certificate of appealability not be
issued in this action. Petitioner filed objections to the Report, Recommendation and
Order. See Obj., Dkt. # 18.

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II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997)(The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate's findings.). After reviewing the report and
recommendation, the Court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. §
636(b)(1)(C).
III.

DISCUSSION
Having considered Petitioner’s objections and reviewed the issues de novo, the

Court determines to accept Magistrate Judge Peebles’s recommendations for the reasons
stated in the February 27, 2017 Report, Recommendation and Order.
IV.

CONCLUSION
Therefore, the Court ACCEPTS and ADOPTS the recommendations made by

Magistrate Judge Peebles in the February 27, 2017 Report, Recommendation and Order,
dkt. # 11. For the reasons set forth therein, the petition is DENIED and DISMISSED.
Further, Petitioner's motion for reconsideration of the transfer order from the
Eastern District of New York (Dkt. No. 8) is DENIED as moot.
The Court also finds that the petition presents no questions of substance for

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appellate review, and that Petitioner has failed to make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b).
Accordingly, a certificate of appealability will not issue.
Further, Respondents’ motion to dismiss (Dkt. # 20) is DENIED as moot.
Further, Petitioner’s motion for Leave to Proceed In Forma Pauperis in Support of
the Application to Appoint Counsel (Dkt. # 21) is DENIED as moot.
IT IS SO ORDERED.
Dated: May 22, 2017

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