Mills v. Girdich

Filing 31

ORDER denying 19 Motion to Stay; denying 19 Motion to Amend or Correct; adopting Report and Recommendation 23 . Signed by Hon. Richard J. Arcara on 5/15/2009. (JMB)

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

R A S H E E N MILLS, Petitioner, v. ORDER 03-CV-341

SUPERINTENDENT ROY A. GIRDICH, U p s tate Correctional Facility, R e s p o n d e n t.

T h is case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 2 8 U.S.C. § 636(b)(1). On April 28, 2003, petitioner filed a petition for a writ of h a b e a s corpus. On November 13, 2008, petitioner filed a motion to stay and a m e n d the petition for a writ of habeas corpus On January 22, 2009, Magistrate J u d g e Bianchini filed a very thorough Report and Recommendation, re c o m m e n d in g that the original petition for a writ of habeas corpus be dismissed a n d that the petitioner's motion to stay and amend the petition be denied. P e titio n e r filed objections to the Report and Recommendation on March 20, 2 0 0 9 and the respondent filed an affidavit in opposition to petitioner's objections. Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo d e te r m in a tio n of those portions of the Report and Recommendation to which o b je c tio n s have been made. Upon a de novo review of the Report and

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R e c o m m e n d a tio n , and after reviewing the submissions, the Court adopts the p ro p o s e d findings of the Report and Recommendation. Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report a n d Recommendation, petitioner's petition to stay and ament the petition for a writ o f habeas corpus is denied and the pettiion for a writ of habeas corpus is d is m is s e d . T h e Court finds that petitioner has failed to make a substantial showing of th e denial of a constitutional right and, therefore, no certificate of appealability s h a ll issue. See 28 U.S.C. § 2253(c)(2).

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: May 15 , 2009

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