Lleshi v. LaClair

Filing 35

MEMORANDUM OPINION AND ORDER for 32 Report and Recommendations. The R&R is adopted as the opinion of ti.e Court. The petition for a writ of habeas corpus is DENIED. The Clerk is instructed to enter judgment accordingly and close this case. As p etitioner 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(c)(2); Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court certifies pursuant t o 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Vincent L. Briccetti on 4/7/2017) (rj)

UNITED STATES DISTRICT COUR1JUSDS SDNY
SOUTHERN DISTRICT OF NEW YOocTJrr
PAL LLESHI,
Petitioner.
V.

13 CV 5874 (VB)

DARWIN LACLAIR,
Respondent.
x
cettiJ.:

Before the Court is Magistrate Judge Judith C. McCarthy’s Report and Recommendation
(“R&R”) on petitioner Pal Lieshi’s petition for a writ of habeas corpus under 28 U.S.C.

§ 2254,

challenging his January 5, 2011, conviction in Rockland County Court for making a terroristic
threat. (Doc. #3 2). Judge McCarthy recommended that the Court deny the petition in its
entirety. Familiarity with the factual and procedural background of this case is presumed.
For the following reasons, the Court adopts the R&R as the opinion of the Court and
denies the petition.
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 objections to the report and recommendation,

but the objections must be “specific[,] written,” and submitted within 14 days after being served
with a copy of the recommended disposition. Fed, R. Civ. P. 72(b)(2); 28 U.S.C.

§ 636(b)(l).

Insofar as a report and recommendation deals with a dispositive motion, a district court
must conduct a de novo review of those portions of the report or specified proposed findings or
recommendations to which timely objections are made. 28 U.S.C.

§ 636(b)(1)(C). The district

court may adopt those portions of a report and recommendation to which no timely objections
have been made, provided no clear error is apparent from the face of the record. Lewis v,Zon,

573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.
1985). The clearly erroneous standard also applies when a party makes only conclusory or
general objections, or simply reiterates his original arguments. Ortiz v. Barkley, 558 F. Supp. 2d
444, 451 (S.D.N.Y. 2008). Because petitioner is proceeding p se, the Court “will ‘read [his]

supporting papers liberally, and.

.

.

interpret them to raise the strongest arguments that they

suggest.” Id. (quoting Burgosv. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Under the Antiterrorism and Effective Death Penalty Act, when a state court denies a
federal claim on the merits, a habeas petitioner is entitled to relief on that claim only if he can
show the state court either (i) made a decision contrary to, or unreasonably applied, clearly
established federal law as determined by the Supreme Court, or (ii) unreasonably determined the
facts in light of the evidence presented in the state court proceeding. 28 U.S.C.

§ 2254(d)(1)-(2).

When a state court denies a federal claim on a procedural ground that is “firmly established and
regularly followed” in that state, a federal court may not even review the claim unless the
petitioner shows either cause and prejudice for the failure to comply with state procedural rules,
or that he is actually innocent. Clark v. Perez, 510 F.3d 382, 391-93 (2d Cir. 2008).
Petitioner did not object to Judge McCarthy’s R&R,
The Court has reviewed Judge McCarthy’s thorough and well-reasoned R&R and finds
no error, clear or otherwise.
CONCLUSION

The R&R. is adopted as the opinion of ti.e Court. The petit.i.on for a writ of habeas corpus
is DENIED,
The Clerk is instructed to enter judgment accordingly and close this case.

As 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(c)(2); Love v. McCray, 413 F.3d

192, 195 (2d Cir. 2005).
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 in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962).
Dated: April 7, 2017
White Plains, NY
SO ORDERED:

Vincent L. Briccetti
United States District Judge

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