Colon v. New York State Department of Corrections and Community Supervision

Filing 21

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 11 ) is ADOPTED in its entirety for the reasons stated therein. ORDERED, that Petitioner's amended petition for a writ of habeas co rpus [Dkt. No. 5] is DENIED and DISMISSED. ORDERED, that no Certificate of Appealability shall be issued with respect to any of Petitioner's claims. ORDERED, that the Clerk of the Court shall enter judgment in Respondent's favor and close the case. Signed by U.S. District Judge Mae A. D'Agostino on 4/25/13. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ARMANDO COLON,
Petitioner,
vs.

9:12-CV-321
(MAD/ATB)

SUPERINTENDENT,
WENDE CORRECTIONAL FACILITY,
Respondent.
____________________________________________
APPEARANCES:

OF COUNSEL:

ARMANDO COLON
82-A-3397
Wende Correctional Facility
P.O. Box 1187
Alden, New York 14004
Petitioner pro se

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
120 Broadway
New York, New York 10271
Attorneys for Respondent

MICHELLE MAEROV, AAG

MAE A. D'AGOSTINO, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Armando Colon ("Petitioner") has filed this pro se petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254. See Dkt. No. 5. Petitioner challenges the constitutionality of a
decision rendered in a prison disciplinary hearing held at the Great Meadow Correctional Facility
on November 16, 1995. See id. at 2. His administrative appeal of this decision was denied in
1996, and the Appellate Division, Third Department denied his Petition for a Writ of Mandamus

on December 4, 1997. See Colon v. Goord, 245 A.D.2d 582 (3d Dept. 1997). Petitioner did not
file his petition for habeas corpus relief until February 24, 2012. In a Report and
Recommendation, Magistrate Judge Andrew T. Baxter recommended dismissal of Petitioner's
petition as barred by the applicable one-year statute of limitations. See Dkt. No. 11.
Currently before this Court are Petitioner's objections to the Report and Recommendation,
in which he objects to Magistrate Judge Baxter's recommendations on the following grounds: (1)
the petition is not untimely; and (2) Magistrate Judge Baxter did not fully consider Petitioner's
actual innocence claims.1 See Dkt. No. 20 at 1. This Court finds that habeas relief is
inappropriate because Petitioner is currently serving a sentence of 25 years to life, thus the
disciplinary action had no impact on the fact of his conviction or the duration of his sentence.
Moreover, this Court also finds that the petition is untimely and Petitioner is not entitled to
equitable tolling based on a finding of actually innocence. Therefore, the petition is dismissed.

II. BACKGROUND
In 1995, Petitioner was charged with conspiring to escape and smuggling while he was an
inmate at Great Meadow Correctional Facility. See Colon, 245 A.D.2d at 582. Following a
disciplinary hearing on November 16, 1995, Petitioner was found guilty of both charges. See
Dkt. No. 20-1 at 4. He was sentenced to 1,825 days in the Special Housing Unit ("SHU") and 60
months loss of good time credits. See id.

Although Petitioner labeled his objections to the Report and Recommendation as a
"Motion for Reconsideration Pursuant to Fed. R. Civ. P. 60(b)," they are, in fact objections to
Magistrate Judge Baxter's recommendations pursuant to Fed. R. Civ. P. 72(b)(2). Fed. R. Civ. P.
60(b) provides relief from a final judgment or order, which has not been entered in this case.
1

2

Petitioner filed an administrative appeal, which was denied on January 4, 1996. See id. at
9. Petitioner then filed a petition for a Writ of Mandamus in New York State Supreme Court,
Albany County, pursuant to Article 78 of the N.Y.C.P.L.R., which was transferred to the
Appellate Division, Third Department. See Colon, 245 A.D.2d at 582. On December 4, 1997, the
Appellate Division denied the petition. See id. On July 30, 1998, Petitioner filed a federal civil
rights lawsuit pursuant to 42 U.S.C. § 1983 alleging damages from the disciplinary action. See
Colon v. Goord, No. 9:98-CV-1302, 2009 WL 890554 (N.D.N.Y. Mar. 30, 2009). On March 30,
2009, the court dismissed the lawsuit as untimely. See id.
Petitioner filed this application for habeas corpus relief on February 24, 2012. See Dkt.
No. 1. Petitioner originally brought this action pursuant to 28 U.S.C. § 2241. See Dkt. No. 1 at 5;
Dkt. No 1-2. On April 26, 2012, the court found that the petition should have been brought under
28 U.S.C. § 2254. See Dkt. No. 3 at 2-3; see also Jenkins v. Duncan, No. 9:02-CV-0673, 2003
WL 22139796, *3 & n.3 (N.D.N.Y. Sept. 16, 2003) (holding that a petition challenging a
disposition rendered at a state disciplinary hearing is "considered under, and is necessarily subject
to, the laws governing habeas petitions brought under 28 U.S.C. § 2254"). Moreover, the petition
as written did not meet the requirements of Fed. R. Civ. P. 8(a)(2). See id. The court denied
Petitioner's request for in forma pauperis status, directed him to pay the filing fee, and ordered
him to file an amended petition if he wished the action to proceed. See id. at 3-4.
On June 6, 2012, Petitioner filed his amended petition, raising the following issues with
respect to the 1995 disciplinary proceeding: (1) his employee assistant was ineffective because
she failed to interview the requested witnesses and did not provide important evidence to him; (2)
he was denied his right to due process when the hearing officer failed to ascertain why Petitioner's
witness refused to testify and failed to provide him with exculpatory evidence; and (3) the hearing
3

officer denied him due process when he failed to properly ascertain the credibility of the
confidential informant. See Dkt. No. 5 at 9-10.
On June 25, 2012, the Court ordered service of the petition and requested a limited answer
from the respondent. See Dkt. No. 6. In this order, the Court discussed the one-year statute of
limitations for habeas corpus petitions and instructed Respondent to limit his response to the
timeliness issue. See id. at 4. Petitioner was given the opportunity to file a reply memorandum
addressing Respondent's arguments, as well as raising any arguments in support of equitable
tolling or in support of a claim of actual innocence. See id.
On September 17, 2012, Petitioner filed a memorandum in support of his petition, arguing
that habeas relief is warranted upon a finding of actual innocence. See Dkt. No. 10 at 5.
Petitioner claims that the evidence presented at the disciplinary hearing was insufficient to
support the hearing officer's decision. See id. Petitioner contends that the hearing officer based
his decision solely on a note allegedly written by John Maier, a fellow inmate who did not testify
at trial, and who may have had an improper interest in implicating Petitioner. See id. at 4-6.
John Maier, Jeffrey Emery, and Christopher Irequi were inmates who were also involved
with the conspiracy. See Dkt. No 20-1 at 4. Initially, Maier agreed to testify at Petitioner's
hearing, however, during the hearing, Petitioner learned that Maier refused to testify. See id. at 5.
Petitioner was not informed of the reason for Maier's refusal to testify, and the hearing officer did
not personally ascertain the reason. See id. At the hearing, confidential information from Maier
was relayed to the hearing officer by Sergeant Kevin Smith. See id. at 6. The hearing officer
never interviewed Maier personally. See id. According to Sergeant Smith, Maier stated that cell
bars were cut on three cells. See id. at 6. Based on this information, corrections officers found
cell bars cut in Emery's, Irequi's, and Maier's cells, as well as cut gallery and window bars. See
4

id. They did not, however, find that any of the bars in Petitioner's cell were cut. See id. Maier
further stated that Petitioner smuggled the blades used to cut the bars into the facility and that
Petitioner told other inmates that an outside person would mail him the blades used for the escape
plot. See id. at 7. Maier also stated that because of a disagreement between himself and
Petitioner, the three others then construed their own plan to escape excluding Petitioner. See id.
There was no other physical evidence linking Petitioner to the blades, no blades were found on
Petitioner's person, and no packages that potentially contained blades were linked to Petitioner.
See id.
At the hearing, Irequi testified that he himself made the arrangements to have the blades
mailed to Great Meadow, addressed to inmate Burrs, and that Petitioner was not involved in the
smuggling plan. See id. Emery also testified that the escape plan only involved Emery, Irequi,
and Maier. See id. Additionally, Petitioner offered the testimony of Thomas O'Sullivan, a fellow
inmate who was aware of racial tension between Maier and Petitioner. See id. at 8. O'Sullivan
described a conversation he had with Maier just a day or two before the incident in which Maier
stated the following in reference to his dislike for Petitioner: "now don't worry about it, in a
couple days I'm gonna fix his spic ass." See id.
Petitioner contends that the hearing officer did not test Maier's credibility and there is no
proof that Maier actually wrote the note that was admitted into evidence. See Dkt. No. 10 at 4-6.
Petitioner further contends that because Maier was a coconspirator who was also charged in the
escape plot, the hearing officer should have considered Maier's own personal interest in
implicating Petitioner. See id. at 5. Petitioner asserts that the hearing officer's failure to question
Maier's credibility, the overall insufficiency of the evidence, and the failure to authenticate the
note containing Maier's version of events violated his due process right to a fair and impartial
5

hearing officer and are sufficient to support a claim of "actual innocence," which would allow this
Court to hear the merits of Petitioner's claim notwithstanding an otherwise applicable procedural
bar. See id. at 6.
In 2001, inmates Edwin Hannon and Robert Cahill prepared affidavits in support of
Petitioner's claim of actual innocence. See Dkt. No. 20-1 at 2-3. Hannon states that he refused to
testify at the administrative hearing because he feared retaliation by inmate Maier. See id. at 2.
Hannon states that Maier bragged to him about his plans to "get even" with Petitioner as well as
how prison guards at Great Meadow shared Maier's white supremacist views and disliked
Petitioner. See id. Hannon's affidavit is dated January 9, 2001. See id. Cahill's affidavit, which
is dated February 8, 2001, states that Maier was well known within the facility for harboring
racist views against "blacks and latinos." See id. at 3. Cahill states that Maier also informed him
that "he hated that 'spic' Armando Colon . . . because he told inmates he [Maier] was a snitch and
that [he] will one day get even with Armando." See id.
While the affidavits were prepared in 2001, Petitioner acknowledges that the information
provided by inmates Cahill and Hannon was provided to the hearing officer prior to the hearing.
See Dkt. No. 20 at 4. Additionally, Petitioner did not proffer this evidence in support of his claim
of actual innocence until making his objections to Magistrate Judge Baxter's Report and
Recommendation. See id.

III. DISCUSSION
A.

Fact or Duration of Confinement
Petitioner challenges his sentence to confinement in the SHU, as well as his loss of good

time credit. See Dkt. No. 5 at 10. To obtain a federal writ of habeas corpus, a state prisoner must
6

show that he or she is in custody in violation of the Constitution or laws of the United States. See
28 U.S.C. § 2254(a). Challenges to the validity of prison administrative actions that affect the
fact or length of the prisoner's confinement are properly brought under 28 U.S.C. § 2254. See
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
In the present matter, because Petitioner is serving a sentence with a maximum term of life
in prison, he is not eligible to earn good time credit. See N.Y.C.L. § 803(1)(a) ("Every [inmate]
. . . except a person serving a sentence with a maximum term of life imprisonment, may receive
time allowance against the term or maximum term of his . . . sentence imposed by the court").
Therefore, the hearing officer's recommendation of the loss of good time credit, although upheld
on appeal, was essentially meaningless. See Gomez v. Kaplan, No. 94 Civ. 3292, 2000 WL
1458804, *12 (S.D.N.Y. Sept. 19, 2000). Since Petitioner was not eligible to receive good time
credit in the first place, he cannot now challenge the hearing officer's decision to take away good
time credit.
Moreover, a habeas proceeding is not appropriate for Petitioner to challenge his
confinement to the SHU. Petitioner is currently serving a sentence with a maximum term of life
in prison and the length of his confinement is not and cannot be implicated by the outcome of this
action. See id. at *12; see also Parra v. Fischer, 2012 WL 3069952, *3 (W.D.N.Y. July 27,
2012). Thus, Petitioner's action "becomes a pure conditions of confinement case by default,"
which is only actionable, if at all, under 42 U.S.C. § 1983. See Gomez, 2000 WL 1458804 at *12;
see also Parra, 2012 WL 3069952 at *3; Peralta v. Vasquez, 467 F.3d 98, 100 (2d Cir. 2006).
Petitioner has already raised these claims in his 42 U.S.C. § 1983 proceeding, which was
dismissed as barred by the applicable statute of limitations. See Colon, No. 9:98-CV-1302.

7

Consequently, because it is inappropriate to challenge the conditions of confinement in a
petition for habeas relief, the Court lacks subject matter jurisdiction and, therefore, the petition is
dismissed.

B.

Statute of Limitations
1. Petition was not timely filed within AEDPA's one-year statute of limitations period.
Although the Court has determined that Petitioner's action must be dismissed on

jurisdictional grounds, in the alternative, the Court finds that this action is procedurally defaulted.
Congress' enactment in 1996 of the Antiterrorism and Effective Death Penalty ("AEDPA")
brought about significant changes to the prisoner litigation landscape. One of those changes was
the institution of a one-year statute of limitations applicable to habeas petitions filed after April
24, 1996. See 28 U.S.C. § 2244(d). The AEDPA established four possible triggering dates for
the one-year habeas limitations period. See id. Specifically, AEDPA sets forth that
[A] 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run the latest of (A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
8

exercise of due diligence.
28 U.S.C. § 2244(d)(1); Cook v. New York State Div. of Parole, 321 F.3d 274, 279-80 (2d Cir.
2003). As the Supreme Court observed in Duncan v. Walker, 533 U.S. 167 (2001), this statute of
limitations "reduces the potential for delay on the road to finality by restricting the time that a
prospective federal habeas petitioner has in which to seek federal habeas review." Duncan, 533
U.S. at 179; see also Strauss v. Yelich, No. 09-CV-0341, 2010 WL 1972781, *3 (N.D.N.Y. May
17, 2010) (quoting Duncan, 533 U.S. at 179).
The AEDPA's statute of limitations contains a tolling provision which can serve to
mitigate the potential harshness of the one-year filing requirement. See 28 U.S.C. § 2244(d)(2).
This provision
balances the interests served by the exhaustion requirement and the
limitation period. Section 2244(d)(2) promotes the exhaustion of
state remedies by protecting a state prisoner's ability to later apply
for federal habeas relief while state remedies are being pursued. At
the same time, the provision limits the harm to the interest in
finality by according tolling effect only to properly filed
application[s] . . . .
Pace v. DiGuglielmo, 544 U.S. 408, 427 (2005) (quoting Duncan, 533 U.S. at 179-80). It is wellsettled, however, that this savings provision only tolls the statute of limitations during the
pendency of a properly-filed state court proceeding; it does not "reset" the one-year limitations
period. See State v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Duell v. Conway, No. 9:07-CV1321, 2010 WL 2695641, *4 (N.D.N.Y. May 6, 2010) (citation omitted).
Petitioner was found guilty of misconduct on November 16, 1995 and does not dispute
that he became aware of the adverse disciplinary decision on the date that it was issued. See Dkt.

9

No. 5 at 1, Dkt. 8-1 at 6. His challenge to that decision was denied on January 4, 1996.2 See id.
at 2. Thus, to comply with the AEDPA one-year statute of limitations, his habeas corpus petition
would have had to have been filed no later than April 24, 1997— or one year after the enactment
of the AEDPA.3 See Dkt. No. 6 at 4; see also Jones v. Smith, No. 09 CIV. 8437, 2011 WL
2693536, *4 (S.D.N.Y. June 30, 2011) (citing Ross v. Artuz, 150 F.3d 97, 102-103 (2d Cir.
1998)). However, Petitioner did not sign his original petition until February 16, 2012, nearly
fifteen years after the statute of limitations expired. See Dkt. No. 1 at 5.

2. Equitable tolling is not available.
A habeas action that might otherwise be subject to dismissal in light of the AEDPA's
statute of limitations might be salvaged by invoking equitable tolling. See Pace, 544 U.S. at 418.
In order to warrant equitable tolling, a petitioner must show "'(1) that he has been pursuing his
rights diligently[;] and (2) that some extraordinary circumstance stood in his way' and prevented
timely filing" of the habeas petition. Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2562
(2010) (quoting Pace, 544 U.S. at 418). Whether a circumstance is extraordinary depends not on

The Second Circuit has not yet addressed whether CPLR Article 78 proceedings
challenging administrative decisions toll the AEDPA limitations period. See Collins v. Ercole,
667 F.3d 247, 251-52 & nn.6-7 (2d Cir. 2012), petition for cert. filed, No. 11-10379 (May 14,
2012). Other circuits, however, have held that exhaustion of prison grievance procedures tolls the
one-year period. See, e.g. Redd. v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003); Kimbrell v.
Cockrell, 311 F.3d 361, 363-364 (5th Cir. 2002). In this case, Petitioner's administrative appeal
was denied on December 4, 1997. See Colon, 245 A.D.2d 582. Thus, even if the limitations
period had been tolled until that date, Petitioner would have had to file his habeas petition by
December 4, 1998 to comply with the AEDPA one-year statute of limitations. Therefore, even if
tolling were available, the petition is still untimely because it was not filed until 2012.
2

For causes of action accruing before the effective date of AEDPA, including convictions
that became final before April 24, 1996, a one year grace period was implemented immediately
allowing habeas petitioners to file up until April 24, 1997, or one year after AEDPA's enactment
on April 24, 1996. See Ross v. Artuz, 150 F.3d at 102-103.
3

10

"how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but
rather how severe an obstacle is for the petitioner endeavoring to comply with AEDPA's
limitations period." Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008).
Here, Petitioner has offered no arguments in support of invoking equitable tolling. While
he acknowledges that his petition may be untimely, he offers no explanation for his delay in filing
the petition before this Court. See Dkt. No 10 at 4. Instead, Petitioner has focused his amended
habeas petition on the issue of actual innocence. See id.

3. Petitioner's actual innocence claim was not pursued diligently and does not present
"new evidence" that was not considered by the hearing officer.
Even where a petition is determined to be untimely, the Second Circuit has determined
that courts should consider a claim of actual innocence as a basis for excusing a late filing under
the AEDPA. See Rivas v. Fischer, 687 F.3d 514, 548 (2d Cir. 2012); see also Friedman v. Rehal,
618 F.3d 142, 152 (2d Cir. 2010) (citation omitted); McCoy v. Bisceglia, No. 10 CIV. 8707, 2012
WL 761725, *1 (S.D.N.Y. Mar. 8, 2012) (citations omitted). If a petitioner satisfies the actualinnocence standard articulated in Schlup v. Delo, 513 U.S. 298 (1995), the claim of innocence
may be used as a "gateway" for excusing the procedural default, and the reviewing court may hear
the substantive claims on the merits, notwithstanding an otherwise unexcused delay in filing the
habeas petition. See Rivas, 687 F.3d at 540.
As the Second Circuit articulated in Rivas, a petitioner seeking to overcome a procedural
default with a claim of actual innocence must
advance both a legitimate constitutional claim and a credible and
compelling claim of actual innocence. It is the combination of the
two claims — that the petitioner is likely innocent and that his
conviction was likely the result of nonharmless constitutional error
— that permits a habeas court to review the petition
11

notwithstanding procedural obstacles in order to avoid a
miscarriage of justice.
Id. at 540-541 (citing Schlup, 513 U.S. at 316, 115 S.Ct. 851). Raising a claim of actual
innocence in a habeas petition will not result in vacating the conviction on the grounds of
innocence, but rather, allows the petitioner to pursue his accompanying constitutional claims
notwithstanding an otherwise applicable constitutional bar. See Schlup, 513 U.S. at 316.
A petitioner seeking passage through the Schlup gateway has "less of a burden" than a
petitioner advancing a freestanding substantive claim of innocence. See id. To be successful on a
freestanding substantive claim of innocence, "the evidence of innocence would have . . . to be
strong enough to make [the petitioner's] execution 'constitutionally intolerable' even if his
conviction was the product of a fair trial." Id. In contrast, the gateway petitioner must present
"evidence of innocence so strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional error." See
id.
To satisfy this standard, a claim of actual innocence must be both "credible" and
"compelling." House v. Bell, 547 U.S. 518, 538 (2006). For the claim to be "credible," it must be
supported by "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513
U.S. at 324. For the claim to be "compelling," the petitioner must demonstrate that, "more likely
than not, in light of the new evidence, no reasonable juror would find him guilty beyond a
reasonable doubt — or to remove the double negative, that more likely than not any reasonable
juror would have reasonable doubt." See House, 547 U.S. at 538 (internal citations omitted).
While the Schlup standard is less burdensome than a freestanding innocence claim, the
standard is still "demanding and permits review only in the extraordinary case." Id. It is not
12

necessary for the petitioner to establish their innocence with absolute certainty, however, in order
to prevail, the petitioner must introduce credible new evidence that thoroughly undermines the
evidence supporting the challenged proceeding. See id. at 543; see also Rivas, 687 F.3d at 544.
Petitioner's actual innocence claim fails for a number of reasons. Petitioner argues that the
evidence considered by the hearing officer was insufficient to support the hearing officer's
decision, without offering "new evidence" to undermine the hearing officer's decision. See Dkt.
No. 5; Dkt. No. 10 at 4-6. In his objections to Magistrate Judge Baxter's Report and
Recommendation, Petitioner introduces for the first time in this proceeding the "new" exculpatory
evidence in the form of affidavits by inmates Hannon and Cahill. See Dkt. No. 20-1 at 2-4.
However, Petitioner also states that the hearing officer was aware of the exculpatory statements
made by Hannon and Cahill at the time of the administrative hearing. See Dkt. No. 20 at 4. If the
exculpatory statements were available to the hearing officer at the time of the hearing, they are
not "new evidence" for the purposes of an actual innocence claim. See, e.g., Rivas, 687 F.3d at
544 (requiring that new evidence not be available to or considered by the trial court). The fact
that this information was considered by the hearing officer prevents Petitioner from now offering
it as "new evidence" for the purpose of supporting his claim of actual innocence.
Additionally, Petitioner has offered no explanation for his delay in introducing the
affidavits of Hannon and Cahill in support of his actual innocence claim. The affidavits were
prepared in 2001, however, Petitioner did not proffer them to this Court until April 1, 2013, in his
objections to Magistrate Judge Baxter's Report and Recommendation. See Dkt. No. 20-1 at 2-3.
Petitioner's unexplained delay in proffering this exculpatory evidence shows that Petitioner has
not been "pursuing his rights diligently" and precludes this Court from applying equitable tolling
to the actual innocence claim. See Pace, 544 U.S. at 418; see also id. at 419 ("Under long13

established principles, petitioner's lack of diligence precludes equity's operation"). Moreover, the
delay in offering this "new evidence" undermines its credibility. Consequently, because of
Petitioner's undue delay in offering the affidavits of Cahill and Hannon, and the fact that the
information provided therein was considered by the hearing officer, Petitioner's actual innocence
claim fails to satisfy the Schulp standard.

C.

Certificate of Appealability
The Court notes that 28 U.S.C. § 2253(c)(1) provides, in relevant part, that, "[u]nless a

circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court
of appeals from — (A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court[.]"4 28 U.S.C. § 2553(c)(1). A court
may only issue a Certificate of Appealability "if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Since Petitioner has failed to make such a showing with regard to any of his claims, the
Court declines to issue a Certificate of Appealability in this matter. See Hohn v. United States,
524 U.S. 236, 239-40 (1998) (quotation omitted). Further, the Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and,
therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962); see also Slack v. McDaniel, 529 U.S. 473, 484
(2000).

Rule 22 of the Federal Rules of Appellate Procedure also provides that an appeal may not
proceed in such actions "unless a circuit justice or a circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1).
4

14

IV. CONCLUSION
After carefully reviewing the entire record in this matter, Magistrate Judge Baxter's Report
and Recommendation, the parties' submissions, and the applicable law, and for the reasons stated
herein, the Court hereby
ORDERS that Magistrate Judge Baxter's Report-Recommendation [Dkt. No. 11] is
ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Petitioner's amended petition for a writ of habeas corpus [Dkt. No. 5] is
DENIED and DISMISSED; and the Court further
ORDERS that no Certificate of Appealability shall be issued with respect to any of
Petitioner's claims; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close
the case.
IT IS SO ORDERED.
Dated: April 25, 2013
Albany, New York

15