Scott v. Kickbush

Filing 12

DECISION & ORDER adopting 9 Report and Recommendations. The petitioner's application for a writ of habeas corpus is DENIED, and his petition, Docket Item 1, is DISMISSED. The Clerk of the Court shall close the file. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/4/2020. (RFI)-CLERK TO FOLLOW UP-

Case 1:17-cv-00049-LJV-HKS Document 12 Filed 08/04/20 Page 1 of 2

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIE SCOTT,
Petitioner,
v.

17-CV-49
DECISION & ORDER

SUSAN KICKBUSH, Superintendent of
Gowanda Correctional Facility,
Respondent.

On January 18, 2017, the petitioner, Willie Scott, filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Docket Item 1. On July 5, 2017, the
respondent filed her response. Docket Item 5. Scott did not file a reply, and the time to
do so expired. See Docket Item 2.
On October 17, 2019, this Court referred this case to United States Magistrate
Judge H. Kenneth Schroeder, Jr., for all proceedings under 28 U.S.C. § 636(b)(1)(A)
and (B). Docket Item 8. On March 2, 2020, Judge Schroeder issued a Report and
Recommendation (“R&R”) finding that Scott’s application for a writ of habeas corpus
should be denied and that his petition should be dismissed. Docket Item 9. The parties
did not object to the R&R, and the time to do so now has expired. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). 1

1

On April 21, 2020, the copy of the R&R that initially was mailed to Scott was
returned as undeliverable. Docket Item 10. On April 23, 2020, this “Court confirmed
through the New York State Department of Corrections and Community Supervision’s
website and by phone that the petitioner is still located at the Gowanda Correctional
Facility, where the mail was sent.” Docket Item 11. Accordingly, the Court “sent
another copy of the R&R to the petitioner.” Id. The Court explained that “[o]bjections

Case 1:17-cv-00049-LJV-HKS Document 12 Filed 08/04/20 Page 2 of 2

A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court
must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72
requires a district court to review the recommendation of a magistrate judge to which no
objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Schroeder’s R&R as well as the parties’ submissions to him. Based on
that review and the absence of any objections, the Court accepts and adopts
Judge Schroeder's recommendation to deny Scott’s application for a writ of habeas
corpus and dismiss his petition.
For the reasons stated above and in the R&R, Scott’s application for a writ of
habeas corpus is DENIED, and his petition, Docket Item 1, is DISMISSED. The Clerk of
the Court shall close the file.
SO ORDERED.
Dated:

August 4, 2020
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

[were] due fourteen days from receipt.” Id. Over three months have passed and the
second copy of the R&R has not been returned as undeliverable. Nor has Scott
submitted an objection.
2