Simmons v. The People of the State of New York

Filing 28

DECISION AND ORDER: ORDERED that 20 Report and Recommendation is adopted. The Petition for a writ of habeas corpus, dkt. # 1 , is hereby DENIED and DISMISSED. The Court declines to issue a Certificate of Appealability. The Clerk of Court is directed to CLOSE the case. Signed by Senior Judge Thomas J. McAvoy on 10/31/17. {order served via regular mail on petitioner}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

BRIAN SIMMONS,
Petitioner,
v.

9:15-cv-43
(TJM/DJS)

SUPERINTENDENT,
Respondent.

Thomas J. McAvoy, SR. U.S.D.J.

DECISION and ORDER
The Court referred this petition for a writ of habeas corpus, brought pursuant to 28
U.S.C. § 2254, to the Hon. Daniel J. Stewart, United States Magistrate Judge, for a Report
and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72.3(d) of the Local Rules
of the Northern District of New York. The Report-Recommendation, dated February 7,
2017, recommends that the Court dismiss the Petition and decline to issue a certificate of
appealability.
Petitioner filed objections to the Report-Recommendation. When objections to a
magistrate judge’s Report-Recommendation are lodged, the Court makes a “de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1). After such a
review, the Court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also receive further
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evidence or recommit the matter to the magistrate judge with instructions.” Id.
Having reviewed the record de novo and having considered the issues raised in the
Petitioner’s objections, this Court has determined to accept and adopt the
recommendations of Magistrate Judge Peebles for the reasons stated in the ReportRecommendation.
Accordingly:
The Petitioner’s objections to the Report-Recommendation, dkt. # 21, are hereby
OVERRULED. The Report-Recommendation, dkt. # 20, is hereby ADOPTED. The
Petition for a writ of habeas corpus, dkt. # 1, is hereby DENIED and DISMISSED. The
Court declines to issue a Certificate of Appealability. The Clerk of Court is directed to
CLOSE the case.
IT IS SO ORDERED

Dated:October 31, 2017

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