McFarland v. Kirkpatrick

Filing 54

ORDER adopting Report and Recommendations in its entirety re 52 Report and Recommendations. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Plaintiff.). Signed by Hon. Michael A. Telesca on 9/7/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RODNEY MCFARLAND,
08-CV-00065 (MAT)
DECISION AND ORDER

Plaintiff,
-vsROBERT A. KIRKPATRICK,
Defendant.

I.

Introduction
Petitioner Rodney McFarland (“petitioner”) filed a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
January 24, 2008.

Docket No. 1.

The petition contained both

exhausted and unexhausted claims, and was stayed pending exhaustion
of petitioner’s state judicial remedies.
learned earlier
Division

had

this

vacated

year

that

the

petitioner’s

Docket No. 7.

New

York

judgment

of

State

The Court
Appellate

conviction

and

remitted the matter to the trial court for further proceedings on
the indictment. Accordingly, on June 12, 2017, the Court issued an
Order to Show Cause why the petition should not be dismissed as
moot.

Docket

No.

47.

Petitioner’s

state

court

counsel

subsequently submitted a letter to the Court confirming that
petitioner was no longer in custody pursuant to the judgment of a
state court.

Docket No. 51.

On August 16, 2017, Magistrate Judge Michael J. Roemer issued
a Report and Recommendation (“R&R”) (Docket No. 52) recommending
that the petition be dismissed as moot.

No objections to the R&R

were filed.

As set forth below, the Court finds no error in

Judge Roemer’s R&R, and therefore adopts it in its entirety.
II.

Discussion
When specific objections are made to a magistrate judge’s

report and recommendation, the district judge makes a “de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C).

When only general objections are made to a

magistrate judge’s report and recommendation, the district judge
reviews it for clear error or manifest injustice. E.g., Brown v.
Peters, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997), aff’d,
175 F.3d 1007 (2d Cir. 1999).

After conducting the appropriate

review, the district court 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)(C).
Here, no objections to the R&R were filed, and so the Court
has reviewed it for clear error.
adopts

Judge

entirety.

Roemer’s

findings

Having found none, the Court
and

recommendations

in

their

The petition has clearly been rendered moot by the

vacatur of petitioner’s conviction and his release from custody,
and dismissal is therefore appropriate.
III. Conclusion
For the reasons set forth in Judge Roemer’s thorough and
well-reasoned R&R, the undersigned accepts all of his conclusions.

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The R&R (Docket No. 52) is hereby adopted in its entirety, and the
petition (Docket No. 1) is dismissed as moot.

The Clerk of Court

is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
___________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

September 7, 2017
Rochester, New York

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