Burkett v. Superintendent Five Points Correctional Facility

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 50 Report and Recommendations. I have reviewed the portions of the Petition as to which no objection has been raised, and find no error, clear or otherwise. Thus, the R&R is adopted as the decision of the Court. As the Petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed to close the case. SO ORDERED., (Signed by Judge Cathy Seibel on 10/11/16) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GARY BURKETT,
Petitioner,
-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION

Superintendent, Five Points
Correctional Facility,
13-CV-2627 (CS)(JCM)
Respondent.
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Seibel, J.
Before the Court is the Report and Recommendation of United States Magistrate Judge
Judith C. McCarthy, (“R&R”), (Doc. 50), recommending that Petitioner’s application for a writ
of habeas corpus be denied. Familiarity with the underlying proceedings, the Petition, the
parties’ arguments and the R&R is presumed.
A District Court reviewing a 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)(C). The district court “may adopt those portions of the report to which no ‘specific,
written objection’ is made, as long as the factual and legal bases supporting the findings and
conclusions set forth in those sections are not clearly erroneous or contrary to law.” Adams v.
N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012) (quoting Fed. R. Civ. P.
72(b)) (citing Thomas v. Arn, 474 U.S. 140, 149 (1985)). “A party that objects to a report and
recommendation must point out the specific portions of the report and recommendation to which
they [sic] object.” J.P.T. Automotive, Inc. v. Toyota Motor Sales, U.S.A., Inc., 659 F. Supp. 2d
350, 352 (E.D.N.Y. 2009). If a party fails to object to a particular portion of a report and
recommendation, further review thereof is generally precluded. See Mario v. P & C Food Mkts.,

Inc., 313 F.3d 758, 766 (2d Cir. 2002). The court must review de novo any portion of the report
to which a specific objection is made. See 28 U.S.C. § 636(b)(1)(C); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). When a party makes only conclusory or general
objections, or simply reiterates the original arguments made below, a court will review the report
only for clear error. Alaimo v. Bd. of Educ., 650 F. Supp. 2d 289, 291 (S.D.N.Y. 2009).
“Furthermore, [even] on de novo review, the Court generally does not consider arguments or
evidence which could have been, but were not, presented to the Magistrate Judge.” United
States v. Vega, 386 F. Supp. 2d 161, 163 (W.D.N.Y. 2005).
Only Respondent has objected to the R&R, taking issue with Magistrate Judge
McCarthy’s conclusion that Claims Three and Five were exhausted. (Doc. 51.) I need not
decide the issue, because I agree with Judge McCarthy that those claims fail on the merits in any
event. See Abuzaid v. Mattox, 726 F.3d 311, 321 (2d Cir. 2013) (28 U.S.C. Ҥ 2254(b)
authorize[s] federal courts to deny the petition, regardless of whether the applicant exhausted his
state court remedies.”).
I have reviewed the portions of the Petition as to which no objection has been raised, and
find no error, clear or otherwise. Thus, the R&R is adopted as the decision of the Court. As the
Petition makes no substantial showing of a denial of a constitutional right, a certificate of
appealability will not issue. 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed
to close the case.
SO ORDERED.
Dated: October 11, 2016
White Plains, New York
__________________________
CATHY SEIBEL, U.S.D.J.
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