Dove v. Lee

Filing 31

ORDER: ORDERED that Magistrate Judge Hummel's December 12, 2013 Report-Recommendation and Order, see Dkt. No. 29 , is ACCEPTED in its entirety for the reasons stated therein. ORDERED that Petitioner's motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED in its entirety. ORDERED that no Certificate of Appealability will issue with respect to any of Petitioner's claims because Petitioner has not made a "substantial showing of the denial of a const itutional right" pursuant to 28 U.S.C. § 2253(c)(2). See 28 U.S.C. § 2253(c)(2) (providing that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right"). Signed by Senior Judge Frederick J. Scullin, Jr on 3/2/15. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
DONALD MACK DOVE,
Petitioner,
v.

9:12-CV-738
(FJS/CFH)

WILLIAM LEE, Superintendent, Green
Haven Correctional Facility,
Respondent.
________________________________________________
APPEARANCES

OF COUNSEL

DONALD MACK DOVE
10-B-0378
Elmira Correctional Facility
P.O. Box 500
Elmira, New York 14902
Petitioner pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224-0341
Attorneys for Respondent

ALYSON J. GILL, AAG

SCULLIN, Senior Judge
ORDER
On May 3, 2012, Petitioner filed his petition for a writ of habeas corpus, contending that
he was (1) denied a preliminary hearing for his assault charge, thereby also having been denied a
fair trial; (2) convicted by a prejudiced jury because it was aware of his confinement status; and
(3) denied effective assistance of standby counsel. See Dkt. No. 1. In a Report-Recommendation
and Order dated December 12, 2013, Magistrate Judge Hummel found that Petitioner's claims

were barred from federal habeas review; and, therefore, he recommended that the Court deny
Petitioner's petition and not issue a Certificate of Appealability with regard to any of Petitioner's
claims. See Dkt. No. 29 at 12. Petitioner filed a conclusory objection to those recommendations,
asserting that he was "object[ing] so that this Report Recommendation and Order c[ould] be
reviewed by the Appellate." See Dkt. No. 30 at 1. He further requested that the Court issue a
Certificate of Appealability. See id.
When the parties do not object to a magistrate judge's report-recommendation or when
their objections are conclusory or general in nature, the court reviews the report-recommendation
for clear error or manifest injustice. See Linares v. Mahunik, No. 9:05-CV-625, 2009 WL
3165660, *10 (N.D.N.Y. July 16, 2009) (citation and footnote omitted). After conducting this
review, "the Court may 'accept, reject, or modify, in whole or in part, the . . . recommendations
made by the magistrate judge.'" Id. (quoting 28 U.S.C. § 636(b)(1)(C)).
The Court has reviewed Magistrate Judge Hummel's December 12, 2013 ReportRecommendation and Order for clear error and manifest injustice; and, having found none, the
Court hereby
ORDERS that Magistrate Judge Hummel's December 12, 2013 Report-Recommendation
and Order, see Dkt. No. 29, is ACCEPTED in its entirety for the reasons stated therein; and the
Court further
ORDERS that Petitioner's motion for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 is DENIED in its entirety; and the Court further
ORDERS that no Certificate of Appealability will issue with respect to any of Petitioner's
claims because Petitioner has not made a "substantial showing of the denial of a constitutional
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right" pursuant to 28 U.S.C. § 2253(c)(2). See 28 U.S.C. § 2253(c)(2) (providing that "[a]
certificate of appealability may issue . . . only if the applicant has made a substantial showing of
the denial of a constitutional right"); and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: March 2, 2015
Syracuse, New York

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