Malloy v. Royce

Filing 29

DECISION AND ORDER that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 28 ) is ACCEPTED and ADOPTED in its entirety. Petitioner's Petition (Dkt. No. 2 ) is DENIED and DISMISSED. A certificate of appealability is DENIED. Signed by Chief Judge Glenn T. Suddaby on 10/14/2020. (Copy served upon petitioner via regular mail)(sal )

Case 9:19-cv-00988-GTS-ATB Document 29 Filed 10/14/20 Page 1 of 2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
LEVI MALLOY,
Petitioner,
9:19-CV-0988
(GTS/ATB)

v.
M. ROYCE, Superintendent of Green Haven
Corr. Facility,
Respondent.
_____________________________________________
APPEARANCES:
LEVI MALLOY, 14-A-3996
Petitioner, Pro Se
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
HON. LETITIA A. JAMES
Attorney General for the State of New York
Counsel for Respondent
28 Liberty Street
New York, New York 10005

LISA E. FLEISCHMANN, 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 by Levi Malloy
(“Petitioner”) pursuant to 28 U.S.C. § 2254, is the Report-Recommendation of Chief United
States Magistrate Judge Andrew T. Baxter recommending that the Petition be denied and
dismissed, and that a certificate of appealability be denied. (Dkt. No. 28.) Petitioner has not
filed an objection to the Report-Recommendation, and the deadline by which to do so has
expired. (See generally Docket Sheet.)

Case 9:19-cv-00988-GTS-ATB Document 29 Filed 10/14/20 Page 2 of 2

After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter’s
thorough Report-Recommendation, the Court can find no clear-error in the
Report-Recommendation. 1 Magistrate Judge Baxter employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. As a result, the
Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein,
Petitioner’s Petition is denied and dismissed, and a certificate of appealability is denied.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 28) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Petitioner’s Petition (Dkt. No. 2) is DENIED and DISMISSED; and it
is further
ORDERED that a certificate of appealability is DENIED.
Dated: October 14, 2020
Syracuse, New York

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).