McNeil v. Annucci
Filing
30
OPINION & ORDER adopting Report and Recommendation for 23 Motion to Dismiss filed by Anthony J. Annucci, 29 Report and Recommendation. Respondent's motion to dismiss the Petition, (Doc. 23), is GRANTED. The Clerk of Court is respectfull y directed to terminate all pending motions and close the case. In addition, because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue, see 28 U.S.C. § 2253, and 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. The Clerk of Court is further directed to mail a copy of this Order to the pro se Petitioner. SO ORDERED. (Signed by Judge Vernon S. Broderick on 6/11/2019) (anc) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DIVINE MCNEIL,
:
:
Petitioner, :
:
-v:
:
:
NYSDOCS COMM ANTHONY J.
:
:
ANNUCCI,
:
Respondent. :
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6/11/2019
18-CV-1560 (VSB) (HP)
OPINION & ORDER
Appearances:
Divine McNeil
Pro se Petitioner
Nancy Darragh Killian
Bronx District Attorney
New York, New York
Counsel for Respondent
VERNON S. BRODERICK, United States District Judge:
Pro se Petitioner Christopher Henry filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, (the “Petition,” Doc. 1), on January 5, 2018, 1 while incarcerated at the
Downstate Correctional facility. 2 Before me is the Report and Recommendation of United States
Magistrate Judge Henry Pitman, (the “Report and Recommendation” or “R&R,” Doc. 29), issued
on May 9, 2019, recommending that I deny the Petition in all respects, that a certificate of
appealability not be issued, and that certification pursuant to 28 U.S.C. § 1915(a)(3) not be
1
A prisoner’s filings are deemed filed on the date they are delivered to prison officials for mailing. See Hodge v.
Greiner, 269 F.3d 104, 106 (2d Cir. 2001). Therefore, I treat the signature date on documents filed by Petitioner as
the presumptive filing date of those documents.
2
This action was originally filed in the Eastern District of New York, (see Doc. 1), and was transferred to this
District on August 2, 2017, (Doc. 14).
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issued. No objections, timely or otherwise, or a request for additional time to file such
objections, have been filed. Because I agree with Magistrate Judge Pitman’s determination that
Petitioner has failed to exhaust his state remedies or offer a valid explanation for his failure to do
so, I ADOPT the Report and Recommendation in its entirety. Accordingly, Respondent’s
motion to dismiss the Petition is GRANTED.
In reviewing a magistrate judge’s report and recommendation, a district court “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). “If a party timely objects to any portion of a
magistrate judge’s report and recommendation, the district court must make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” Bush v. Colvin, No. 15 Civ. 2062 (LGS) (DF), 2017 WL 1493689,
at *4 (S.D.N.Y. Apr. 26, 2017) (quoting United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015)). Where, however, a party does not timely object to a report and recommendation, a
district court reviews the report and recommendation for clear error. DiPilato v. 7-Eleven, Inc.,
662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009); Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y.
2008); Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).
Petitioner has not submitted objections to the Report and Recommendation; therefore, I
apply the clear error standard. DiPilato, 662 F. Supp. 2d at 339; Lewis, 573 F. Supp. 2d at 811;
Wilds, 262 F. Supp. 2d at 169. I have carefully reviewed the thorough and well-reasoned Report
and Recommendation, and I find no error in Magistrate Judge Pitman’s reasoning and
conclusions. I am therefore in complete agreement with Magistrate Judge Pitman and hereby
ADOPT the Report and Recommendation in its entirety. Respondent’s motion to dismiss the
Petition, (Doc. 23), is GRANTED. The Clerk of Court is respectfully directed to terminate all
pending motions and close the case.
2
In addition, because Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue, see 28 U.S.C. § 2253, and 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.
The Clerk of Court is further directed to mail a copy of this Order to the pro se Petitioner.
SO ORDERED.
Dated: June 11, 2019
New York, New York
______________________
Vernon S. Broderick
United States District Judge
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