Mabeus v. Colvin
Filing
20
DECISION AND ORDER accepting and adopting # 19 Magistrate Judge Stewart's Report and Recommendation in its entirety. The petition in this matter is denied and dismissed. A certificate of appealability will not issue with respect to any of the claims set forth in the Petition because the 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 9/11/18. (lmw) (Copy served upon pro se petitioner via regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
DAVID MABEUS,
Petitioner,
9:16-CV-1141
(GTS/DJS)
v.
JOHN COLVIN, Superintendent, Five Points
Corr. Fac.,
Respondent.
__________________________________________
APPEARANCES:
OF COUNSEL:
DAVID MABEUS, 04-A-4840
Petitioner, Pro Se
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
HON. BARBARA UNDERWOOD
Attorney General for the State of New York
Counsel for Respondent
28 Liberty Street
New York, New York 10005
MARGARET A. CIEPRISZ, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in his habeas corpus proceeding filed by David Mabeus
(“Petitioner”) pursuant to 28 U.S.C. § 2254, is the Report-Recommendation of United States
Magistrate Judge Daniel J. Stewart recommending that the Petition be denied and dismissed
pursuant to 28 U.S.C. § 2253(c)(2), 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, including Magistrate Judge
Stewart’s thorough Report-Recommendation, the Court can find no clear error in that ReportRecommendation.1 Magistrate Judge Stewart employed the proper legal standards, accurately
recited the facts, and correctly applied the law to those facts. (Dkt. No. 19, Parts I-II.) As a
result, the Court accepts and adopts Magistrate Judge Stewart’s Report-Recommendation in its
entirety for the reasons stated therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 19) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Petition (Dkt. No. 1) in this matter 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: September 11, 2018
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief 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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