Mercado v. Lempke

Filing 24

OPINION AND ORDER denying 15 Motion to Dismiss. In the absence of any objections, the Court hereby ADOPTS the Magistrate Judges Report and Recommendation. The Court DENIES Respondents motion to dismiss. The Clerk of the Court is respectfully direct ed to terminate this motion (Doc. 15). Respondent is directed to serve and file an answer, and file any state court records not previously submitted to the court by November 13, 2012. Petitioner is directed to serve and file his reply by December 28,2012.(Signed by Judge Edgardo Ramos on 9/27/2012) The Clerks Office Has Mailed Copies. (fk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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OSCAR MERCADO,
:
:
Petitioner,
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v.
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:
JOHN LEMPKE, Superintendent, Five Points
:
Correctional Facility,
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Respondent.
:
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OPINION AND
ORDER
11-CV-6529 (ER)

RAMOS, D.J.:
Oscar Mercado, an incarcerated pro se litigant, filed this in forma pauperis petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 13, 2011. The district court
referred the case to the Magistrate Judge. The case was then reassigned to this Court.
On February 10, 2012, Respondent moved to dismiss on the ground that Mr. Mercado’s
petition was a “second or successive” petition as defined in 28 U.S.C. § 2244. On August 6,
2012, the Magistrate Judge issued her Report and Recommendation, recommending that the
Court deny Respondent’s motion to dismiss. In a letter to the Court dated August 8, 2012, the
Westchester District Attorney’s Office stated that Respondent would not be submitting
objections to the Report and Recommendation.
In the absence of any objections, the Court hereby ADOPTS the Magistrate Judge’s
Report and Recommendation.
The Court DENIES Respondent’s motion to dismiss. The Clerk of the Court is
respectfully directed to terminate this motion (Doc. 15).