Duell v. Conway

Filing 17

ORDER that 12 REPORT AND RECOMMENDATIONS is accepted and adopted in whole. ORDERED that 3 Amended Petition for Writ of Habeas Corpus filed by Richard Duell is DISMISSED. A Certificate of Appealability will not be issued in this matter. Signed by Judge David N. Hurd on 7/1/10. {order served via regular mail on all non-ecf parties}(nas)

Duell v. Conway

Doc. 17

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------RICHARD DUELL, Petitioner, vs JAMES T. CONWAY, Superintendent, Attica Correctional Facility, Respondent. -----------------------------------APPEARANCES: RICHARD DUELL, Petitioner, Pro Se 01-B-1692 Attica Correctional facility Box 149 Attica, New York 14011 HON. ANDREW M. CUOMO Attorney General of the State of New York Attorney for Respondent Department of Law 120 Broadway New York, NY 10271 DAVID N. HURD United States District Judge DECISION and ORDER The petitioner, Richard Duell, brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the above action. By a report- recommendation dated May 6, 2010, the Honorable David E. Peebles, United States Magistrate Judge, recommended that the amended petition for a writ of habeas corpus be dismissed, and that the court not grant petitioner a certificate of appealability in this matter. The respondent has OF COUNSEL: 9:07-CV-1321

ASHLYN H. DANNELLLY, ESQ. Asst. Attorney General

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responded to the report and recommendation urging that the said report and recommendation be adopted. The petitioner has filed timely objections to the report and recommendation. The petitioner argues that state officials impeded his filing a timely state court appeal and this impeded his presenting this habeas corpus petition because he was prevented from exhausting his state court remedies. However, it did not prevent him from timely filing this habeas corpus petition and arguing that the failure to exhaust should be excused because of the state action and/or the ineffective assistance of his counsel. This he failed to do. Based upon a de novo determination of the report and recommendation, including the portions to which petitioner has objected, the Report-Recommendation is accepted and adopted in whole. See 28 U.S.C. 636(b)(1); Rule 10, Rules Governing Section 2254 Cases. Therefore, it is ORDERED that 1. The amended petition of Richard Duell is DISMISSED; 2. A Certificate of Appealability will not be issued in this matter; and 3. The Clerk is directed to enter judgment accordingly and close the file. IT IS SO ORDERED.

Dated: July 1, 2010 Utica, New York.

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