Portis v. Kirkpatrick

Filing 21

DECISION AND ORDER: ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 19 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that the Petition (Dkt. No. 1 ) is DENIED and DISMISSED. ORDERED that a certificate of appeal ability not issue with respect to any of the claims set forth in the Petition, because Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). Signed by Chief Judge Glenn T. Suddaby on 11/17/16. (served on petitioner by regular mail)(alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ JAMEL PORTIS, Petitioner, 9:16-CV-0290 (GTS/ATB) v. MICHAEL KIRKPATRICK, Superintendent, Clinton Correctional Facility, Respondent. __________________________________________ APPEARANCES: OF COUNSEL: JAMEL PORTIS, 12-A-1694 Petitioner, Pro Se Clinton Correctional Facility P.O. Box 2002 Dannemora, New York 12929 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Respondent 120 Broadway New York, New York 10271 ALYSON J. GILL, ESQ. Assistant Attorney General GLENN T. SUDDABY, Chief United States District Judge DECISION and ORDER Currently before the Court, in this habeas corpus proceeding filed pro se by Jamel Portis (“Petitioner”) pursuant to 28 U.S.C. § 2254 arising from 2012 conviction for Second Degree Criminal Conspiracy in Albany County Supreme Court, is a Report-Recommendation dated October 12, 2016, of United States Magistrate Judge Andrew T. Baxter recommending that Petitioner’s Petition be denied and dismissed, and that a certificate of appealability not issue. (Dkt. No. 19.) Petitioner has not filed an objection to the Report-Recommendation and the time in which to do so has expired. (See generally Docket Sheet.) After carefully reviewing all of the papers in this action, the Court can find no clear error1 in Magistrate Judge Baxter’s ReportRecommendation: Magistrate Judge Baxter employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 19, at Part II-IV.) As a result, the Court accepts and adopts Magistrate Judge Baxter’s Report-Recommendation in its entirety for the reasons stated therein. ACCORDINGLY, it is ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 19) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that the Petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further ORDERED that a certificate of appealability not issue with respect to any of the claims set forth in the Petition, because Petitioner has not made a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2). Dated: November 17, 2016 Syracuse, New York ____________________________________ HON. GLENN T. SUDDABY United States District Judge 1 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2

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