Lear v. Poole

Filing 18

ORDER adopting Report and Recommendation 13 denying petition for a writ of habeas corpus. Clerk of court to close case. Signed by Hon. Richard J. Arcara on 5/17/2010. (JMB)

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UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK G A R Y T. LEAR, Petitioner, v. ORDER 06-CV-750 THOMAS POOLE, Superintendent, Five Points 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). Plaintiff filed a petition for a writ of habeas corpus on N o ve m b e r 14, 2006, pursuant to 28 U.S.C. 2254. August 17, 2009, after re s p o n d e n t answered the petition, petitioner filed a motion to amend his petition. On January 20, 2010, Magistrate Judge Bianchini filed a Report and R e c o m m e n d a tio n , recommending that petitioner's request for a writ of habeas c o rp u s be denied. P la in tiff filed objections to the Report and Recommendation on March 3, 2010. Pursuant to 28 U.S.C. 636(b)(1), this Court must make a de novo d e te rm 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 1 Recommendation, 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 for a writ of habeas corpus is denied a n d the petition is dismissed. In addition, because the issues raised here are not the type of issues that a court c o u ld resolve in a different manner, and because these issues are not debatable a m o n g jurists of reason, the Court concludes that petitioner has failed to make a s u b s ta n tia l showing of the denial of a constitutional right, 28 U.S.C. 2253(c)(2), a n d accordingly the Court denies a certificate of appealability. T h e Court also hereby certifies, pursuant to 28 U.S.C. 1915(a)(3), that any a p p e a l from this Order would not be taken in good faith, and leave to appeal to the C o u rt of Appeals as a poor person is denied. Coppedge v. U.S., 369 U.S. 438, 82 S . Ct. 917, 8 L. Ed.2d 21 (1962). Further requests to proceed on appeal as a poor p e rs o n should be directed, on motion, to the United States Court of Appeals for th e Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate P ro c e d u re . The Clerk of Court shall take all steps necessary to close the case 2 SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: May 17, 2010 3

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