Geron v. Graham

Filing 34

ORDER for 33 Report and Recommendations. The Court, therefore, accepts and adopts the R&R in its entirety. For the reasons articulated in the R&R, the petition is denied. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). Petitioner has not made a substantial showing of the denial of a c onstitutional right, so the Court denies a certificate of appealability under 28 U.S.C. § 2253. The Clerk of Court is directed to mail a copy of this order to Petitioner, to enter judgment for Respondent, and to close this case. (Signed by Judge Gregory H. Woods on 9/29/2022) (rro) Transmission to Orders and Judgments Clerk for processing.

Case 1:18-cv-00168-GHW-VF Document 34 Filed 09/29/22 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ROBERTO GERON,
:
:
Petitioner, :
:
-against :
:
:
H. GRAHAM,
:
Respondent. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 9/29/2022

1:18-cv-168-GHW
ORDER

GREGORY H. WOODS, United States District Judge:
On September 14, 2022, Magistrate Judge Figueredo issued a Report and Recommendation
(“R&R”) recommending that the Court deny Petitioner’s habeas corpus petition in this case. Dkt.
No. 33 at 2. In that R&R, Magistrate Judge Figueredo determined that Petitioner’s challenge to the
validity of his guilty plea should be dismissed because (a) the claim is unexhausted and procedurally
barred and (b) even if that were not so, the claim is meritless. See id. at 14–23. Magistrate Judge
Figueredo also determined, for the same reasons, that Petitioner’s Eighth Amendment claim should
be dismissed. See id. at 23–25.
A district court reviewing a magistrate judge’s report and recommendation “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)(1). Parties may raise specific, written objections to the report and
recommendation within fourteen days of receiving a copy of the report. Id.; see also FED. R. CIV. P.
72(b)(2). The Court reviews for clear error those parts of the report and recommendation to which
no party has timely objected. 28 U.S.C. § 636(b)(1)(A); Lewis v. Zon, 573 F. Supp. 2d 804, 811
(S.D.N.Y. 2008).

Case 1:18-cv-00168-GHW-VF Document 34 Filed 09/29/22 Page 2 of 2

No objection to the R&R was submitted within the fourteen-day window. The Court has
reviewed the R&R for clear error and finds none. See Braunstein v. Barber, No. 06 Civ. 5978 (CS)
(GAY), 2009 WL 1542707, at *1 (S.D.N.Y. June 2, 2009) (explaining that a “district court may adopt
those portions of a report and recommendation to which no objections have been made, as long as
no clear error is apparent from the face of the record.”). The Court, therefore, accepts and adopts
the R&R in its entirety. For the reasons articulated in the R&R, the petition is denied.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order
would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444–45 (1962). Petitioner has not made a substantial
showing of the denial of a constitutional right, so the Court denies a certificate of appealability under
28 U.S.C. § 2253.
The Clerk of Court is directed to mail a copy of this order to Petitioner, to enter judgment
for Respondent, and to close this case.
SO ORDERED.
Dated: September 29, 2022
New York, New York

_____________________________________
GREGORY H. WOODS
United States District Judge

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