Slater v. Gonyea et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION: Accordingly, it is hereby ORDERED that the Report and Recommendation, dated September 23, 2019, is ADOPTED in its entirety. ORDERED that the Petition is DISMISSED. ORDERED that because Petitioner has not ma de 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. NY State Div. of Parole, 209 F.3d 107, 111-12 (2d Cir. 2000), and the Court certifies, pu rsuant 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 11/6/2019) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOVAN SLATER,
Petitioner,
No. 16-CV-8540 (KMK)

V.

SUPERINTENDANT GONYEA,
DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION,

ORDER ADOPTING
REPORT & RECOMMENDATION

Respondent.
KENNETH M. KARAS, United States District Judge:
Pro se Petitioner Jovan Slater ("Petitioner") pled guilty in Dutchess County Court to one
count of criminal sale of a controlled substance in the third degree, in violation of New York
Penal Law§ 220.39. (See generally Pet. for Writ of Habeas Corpus ("Pet.") (Dkt. No. 1); Aff. of
Kirsten A. Rappleyea, Esq. in Answer to Pet. ("Rappleyea Aff.") Ex. A, at 11 (Dkt. No. 13-1).)
Petitioner was sentenced as a second felony offender to a term of six years of incarceration with
three years of post-release supervision. (Rappleyea Aff. Ex. B, at 14 (Dkt. No. 13-2).)
Following a direct appeal, the Second Department affirmed Petitioner's guilty plea on
May 31, 2016. People v. Slater, 35 N.Y.S.3d 452 (App. Div. 2015), leave to appeal denied, 28
N.Y. 3d 1031 (N.Y. 2016). Petitioner filed the instant Petition for a Writ of Habeas Corpus
("Petition") pursuant to 28 U.S.C. § 2254, seeking relief on three different grounds, most of
which were pursued in state court. (See generally Pet.)
The case was referred to the Honorable Judith C. McCarthy ("Judge McCarthy"). (Dkt.
No. 6.) On September 23, 2019, Judge McCarthy issued a Report and Recommendation

("R&R") recommending that this Court deny the Petition in its entirety. (R&R 18 (Dkt. No.
18).) Petitioner has not filed any objections to the R&R. 1
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 September 23, 2019, is
ADOPTED in its entirety.
ORDERED that the Petition 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. NY 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.
November fl, 2019
White Plains, New York

Dated:

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 14 days
from the receipt of the R&R, or 17 days from the receipt of the same if the R&R was served
upon the Parties by mail, and that the failure to object would constitute a waiver of Petitioner's

right to app@al. (K&K 1K-19.)