Williams v. Bradt

Filing 10

DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 8 Report and Recommendations consistent with this Decision and Order; and the petition (doc. 1) is dismissed with prejudice as untimely. (Clerk of Court to close case and mail a copy of this Decision and Order to Petitioner.) Signed by Hon. Michael A. Telesca on 6/28/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHAWN K. WILLIAMS,
Petitioner,

No. 1:12-CV-01217 (MAT)
DECISION AND ORDER

-vsMR. MARK BRADT, Superintendent of
Attica Corr. Fac.,
Respondent.

I.

Introduction
Shawn K. Williams (“petitioner”), proceeding pro se, petitions

this Court for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner is incarcerated pursuant to a judgment entered
November 28, 2001, in Monroe County Court (Geraci, J.), following
a bench verdict convicting him of murder in the second degree (N.Y.
Penal Law § 125.25). Plaintiff was sentenced to an indeterminate
prison term of 21 years to life. The New York State Supreme Court,
Appellate

Division,

Fourth

Department,

unanimously

affirmed

petitioner’s judgment of conviction on March 19, 2004. See People
v. Williams, 5 A.D.3d 1043 (4th Dep’t 2004), lv. denied, 2 N.Y.3d
809, rearg. denied, 19 A.D.3d 1185 (4th Dep’t 2005). A subsequent
application for a writ of error coram nobis was denied on October
2, 2009, see People v. Williams, 66 A.D.3d 1498 (4th Dep’t 2009),
lv. denied, 13 N.Y.3d 911, and a CPL § 440.10 motion to set aside
the judgment was denied on July 31, 2012, with leave to appeal
denied on October 14, 2002. See doc. 1-2 at 22, 38.

Pursuant to 28 U.S.C. § 636(b)(1), the Court1 referred this
petition for a writ of habeas corpus (doc. 1) to United States
Magistrate Leslie G. Foschio for a Report and Recommendation
(“R&R”). Judge Foschio’s R&R, filed on May 16, 2017, recommends
that the Court dismiss Williams’ petition as untimely. (Doc. 8).
Petitioner was mailed a copy of the R&R, but has submitted no
objections.
When no objections are filed, the Court reviews an R&R on a
dispositive motion for clear error. See Eisenberg v. New England
Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008). The
Court has reviewed the R&R and finds no error, clear or otherwise.
The Court therefore adopts the R&R in its entirety, and for the
reasons

stated

therein,

the

petition

(doc.

1)

is

therefore

dismissed with prejudice as untimely. The Court notes that Judge
Foschio’s R&R warned plaintiff that failure to file objections
within the allotted time period would operate as a waiver of his
right to

appeal

this

Court’s

order,

and

the

Court

therefore

construes plaintiff’s failure to object as a waiver. See doc. 8 at
8 (citing Thomas v. Arn, 474 U.S. 140 (1985); Small v. Sec. of
Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989). In any event,
because petitioner has failed to make a “substantial showing of a

1
This case was formerly assigned to Judge Lawrence J. Vilardo, who
referred it to Magistrate Judge Leslie G. Foschio for a Report and
Recommendation, which was completed and filed on May 16, 2017. The case
thereafter was referred to this Court by order dated May 18, 2017.

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denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability.
SO ORDERED.

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

June 28, 2017
Rochester, New York.

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