Escalante v. Smith

Filing 16

ORDER that 13 Report and Recommendations is APPROVED and ADOPTED in its entirety. ORDERED that the petition for a writ of habeas corpus (dkt no. 1) be DENIED. Signed by Senior Judge Lawrence E. Kahn on 5/18/09.{order served via regular mail on petitioner} (nas)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK PAUL ESCALANTE, Petitioner, -against9:06-CV-1506 (LEK/ RFT)

JOSEPH SMITH, Superintendent, Shawangunk Correctional Facility, Respondent.

DECISION AND ORDER This matter comes before the Court following a Report-Recommendation filed on May 7, 2009 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 13). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Defendant Escalante, which were filed on May 12, 2009. Objections (Dkt. No. 13). It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein. Accordingly, it is hereby ORDERED, that the Report-Recommendation (Dkt. No. 13) is APPROVED and 1

ADOPTED in its ENTIRETY; and it is further ORDERED, that the Petition for a writ of habeas corpus (Dkt. No. 1)be DENIED; and it is further ORDERED, that because the Court finds Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability should issue with respect to any of Petitioner's claims. See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000); and it is further ORDERED, that the Clerk serve a copy of this Order on all parties. IT IS SO ORDERED. DATED: May 18, 2009 Albany, New York

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