Craig v. Connolly

Filing 22

ORDER: ORDERED that the Report-Recommendation and Order (Dkt. No. 17 ) is ADOPTED in its entirety. ORDERED that the petition (Dkt. No. 1 ) is DISMISSED and DENIED. Signed by Senior Judge Gary L. Sharpe on 1/26/17. {order served via regular mail on petitioner}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TYRONE CRAIG,
Petitioner,

9:15-cv-384
(GLS/CFH)

v.
WILLIAM J. CONNOLLY,
Respondent.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PETITIONER:
Tyrone Craig
Pro se
12-A-4260
Otisville Correctional Facility
Box 8
Otisville, NY 10963
FOR THE RESPONDENT:
HON. ERIC SCHNEIDERMAN
New York State Attorney General
120 Broadway
New York, NY 10271

LISA E. FLEISCHMANN
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
ORDER
The above-captioned matter comes to this court following a ReportRecommendation and Order (R&R) by Magistrate Judge Christian F.

Hummel, duly filed on December 7, 2016. (Dkt. No. 17.) Following
fourteen days from the service thereof, the Clerk has sent the file, including
any and all objections filed by the parties herein.1
Petitioner objects to the R&R’s recommendation that the petition be
dismissed as untimely. (Dkt. No. 20.) Notably, despite being put on notice
of respondent’s intention to assert that the petition is time barred and
afforded time to respond to respondent’s arguments along those lines,
petitioner failed to present anything for Judge Hummel’s consideration of
the issue. (Dkt. Nos. 11, 12, 13, 14.) In his objections, petitioner argues,
in conclusory fashion, that Judge Hummel’s recommendation is simply
wrong. (Dkt. No. 20.) Because the arguments contained in petitioner’s
objections are raised for the first time now, they are not entitled to any
review, although the court may, in its discretion, review under any standard
it sees fit, Tatta v. Wright, 616 F. Supp. 2d 308, 312 (N.D.N.Y. 2007).
Exercising some deference, and applying either de novo or the clearly
erroneous standard of review, the court adopts the R&R for exactly the

1

Petitioner’s letter request for additional time to file objections, dated December 29,
2016, (Dkt. No. 21), is denied as moot in light of the extension of time afforded petitioner on
January 4, 2017, (Dkt. No. 19), and the fact that he filed objections to the R&R in a document
dated December 30, 2016, (Dkt. No. 20).

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reasons expressed therein. (Dkt. No. 17 at 5-9.) The petition is clearly
untimely and petitioner has neither demonstrated that he is entitled to
equitable tolling nor made out a gateway claim of actual innocence to
excuse his failure to timely file. (Id.)
Accordingly, it is hereby
ORDERED that the Report-Recommendation and Order (Dkt. No.
17) is ADOPTED in its entirety; and it is further
ORDERED that the petition (Dkt. No. 1) is DISMISSED and DENIED;
and it is further
ORDERED that, because petitioner has failed to make a substantial
showing of the denial of a constitutional right, no certificate of appealability
shall issue pursuant to 28 U.S.C. § 2253(c)(2); and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties
in accordance with the court’s Local Rules.
IT IS SO ORDERED.
January 26, 2017
Albany, New York

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