Loucks v. Capra

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations. It is hereby ORDERED that the Report and Recommendation, dated April 22, 2019, is ADOPTED in its entirety. ORDERED that Petitioner's writ of habeas corpus is DIS MISSED. ORDERED that 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( c )(2); Lucidore v. N. Y State Div. of Parole, 209 F.3d 10 7, 111-12 (2d Cir. 2000), 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. It is further ORDERED that the Clerk of the Court is respectfully directed to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 5/29/2019) (ks) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT LOUCKS,
Petitioner,
V.

No. 16-CV-4227 (KMK)
ORDER ADOPTING
REPORT & RECOMMENDATION

MICHAEL CAPRA,
Respondent.
KENNETH M. KARAS, United States District Judge:

Petitioner Robert Loucks ("Petitioner") was convicted in Dutchess County Court of two
counts of Class A-1 Felony of Murder in the Second Degree, in violation ofN.Y. Penal Law
§§ 125.25(01) & (03). Petitioner was sentenced as a predicate felony offender to an

indeterminate term of 25 years to life imprisonment to run consecutively with Petitioner' s
conviction in an unrelated murder case.
Following a direct appeal , the Second Department affirmed Petitioner' s conviction on
February 18, 2015. People v. Loucks, 2 N.Y.S.3d 620 (App. Div. 2015), leave to appeal denied,
36 N.E.3d 101 (N.Y. 2015). Petitioner filed the instant petition for a Writ of Habeas Corpus
("Petition") pursuant to 28 U.S.C. § 2254, seeking relief on six different grounds, most of which
were pursued in state court. (Dkt. No. 1.)
The case was referred to the Honorable Judith C. McCarthy ("Judge McCarthy"). (Dkt.
No. 6.) On April 22, 2019, Judge McCarthy issued a Report and Recommendation ("R&R")
recommending that this Court deny the Petition in its entirety. (Dkt. No. 15 .) Petitioner has not
filed any objections to the R&R. 1

1 Judge

McCarthy provided notice that, pursuant to 28 U.S.C. § 636(b)(l)(C) and Rule
8(b) of the Rules Governing Section 2254 cases, objections to the R&R were due within fourteen
dgyg from the receipt of the R&R, or geventeen dAy~ fMM the feceipt of the same if the R&R was

When no objections are filed, the Court reviews an R&R on a dispositive motion for clear
error. See Andrews v. LeClaire , 709 F. Supp. 2d 269, 271 (S .D.N.Y. 2010); Eisenberg v. New

Eng. Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S .D.N.Y. 2008). The Court has reviewed
the R&R and the Petition, and finding no substantive error, clear or otherwise, adopts the R&R.
Accordingly, it is hereby
ORDERED that the Report and Recommendation, dated April 22, 2019, is ADOPTED in
its entirety.
ORDERED that Petitioner' s writ of habeas corpus is DISMISSED.
ORDERED that 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( c )(2);

Lucidore v. N. Y State Div. of Parole , 209 F.3d 107, 111-12 (2d Cir. 2000), 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. It is further
ORDERED that the Clerk of the Court is respectfully directed to close this case.
SO ORDERED.
Dated:

May~, 2019
White Plains, New York

served upon the parties by mail, and that the failure to object would constitute a waiver of

P~
tition~r·~ right to rrpperrl. (R&R 32.)