DeFreitas v. Kirkpatrick

Filing 32

ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 31 ) is APPROVED and ADOPTED in its entirety. ORDERED, that DeFreitas's Petition (Dkt. No. 1) is DENIED and DISMISSED. ORDERED, that no certificate of appealability ("COA" ;) shall issue in this case because DeFreitas has failed to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), and any further request for a COA must be addressed to the Court of Appeals under Federal Rule of Appellate Procedure 22(b). Signed by Senior Judge Lawrence E. Kahn on 5/30/17. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DESMOND DEFREITAS,
Petitioner,
-against-

9:16-CV-0638 (LEK/ATB)

MICHAEL KIRKPATRICK,
Respondent.

ORDER
This matter comes before the Court following a Report-Recommendation filed on May 3,
2017, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3. Dkt. No. 31 (“Report-Recommendation”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may

accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b).
No objections were filed in the allotted time period. Docket. Thus, the Court has
reviewed the Report-Recommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 31) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that DeFreitas’s Petition (Dkt. No. 1) is DENIED and DISMISSED; and it
is further
ORDERED, that no certificate of appealability (“COA”) shall issue in this case because
DeFreitas has failed to make a “substantial showing of the denial of a constitutional right”
pursuant to 28 U.S.C. § 2253(c)(2), and any further request for a COA must be addressed to the
Court of Appeals under Federal Rule of Appellate Procedure 22(b); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

May 30, 2017
Albany, New York

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