Abreu v. Lempke

Filing 33

ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 26 ) is APPROVED and ADOPTED in its entirety. ORDERED, that the Amended Petition (Dkt. No. 8 ) for a writ of habeas corpus is DENIED and DISMISSED. ORDERED, that the Clerk of the Court ser ve a copy of this Order on the parties in accordance with the Local Rules. ORDERED, that no certificate of appealability shall be issued in this case because Petitioner has failed to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253 (c)(2). Signed by Senior Judge Lawrence E. Kahn on 7/10/13. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CARLOS ABREU,
Petitioner,
-against-

9:11-CV-0839 (LEK/CFH)

JOHN LEMPKE, Superintendent,
Respondent.

ORDER
This matter comes before the Court following a Report-Recommendation filed on January
23, 2013, by the Honorable Christian F. Hummel, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3(c). Dkt. No. 26 (“Report-Recommendation”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” FED. R. CIV. P. 72(b); see also L.R. 72.1(c). “If no objections are
filed . . . reviewing courts should review a report and recommendation for clear error.” Edwards v.
Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006); see also Cephas v. Nash, 328 F.3d 98, 107
(2d Cir. 2003) (“As a rule, a party’s failure to object to any purported error or omission in a
magistrate judge’s report waives further judicial review of the point.”); Farid v. Bouey, 554 F. Supp.
2d 301, 306 (N.D.N.Y. 2008).
The Court has granted Petitioner three substantial extensions of the time period for filing
objections to the Report-Recommendation. See Text Order dated March 28, 2013; Dkt. Nos. 30;

32.1 Petitioner has still not filed any objections. After a thorough review of the ReportRecommendation and the record, the Court has determined that the Report-Recommendation is not
subject to attack for clear error or manifest injustice.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 26) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that the Amended Petition (Dkt. No. 8) for a writ of habeas corpus is DENIED
and DISMISSED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on the parties in
accordance with the Local Rules; and it is further
ORDERED, that no certificate of appealability shall be issued in this case because
Petitioner has failed to make a “substantial showing of the denial of a constitutional right” pursuant
to 28 U.S.C. § 2253(c)(2).2
IT IS SO ORDERED.

Dated: July 10, 2013
Albany, New York

1

The most recent Order granting Petitioner an extension informed him that “no further
extensions will be granted by the Court.” Dkt. No. 32.
2

See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[Section] 2253 permits the issuance
of a [certificate of appealability] only where a petitioner has made a ‘substantial showing of the
denial of a constitutional right.’” (citation omitted)).
2