Voog v. Pallito

Filing 23

ORDER AFFIRMING, APPOVING and ADOPTING 21 Magistrate Judge's Report and Recommendation: 1 Petition for Writ of Habeas Corpus (2254) is DENIED. 16 Motion to Order the Production of Documents is DENIED. 8 Motion for Judgment as a Matter o f Law is DENIED. 3 Partial Motion to Dismiss is GRANTED. This case is DISMISSED without prejudice. Court DENIES petitioner a certificate of appealability. Any appeal taken in forma pauperis from this Order would not be taken in good faith as such an appeal would be frivolous. Signed by District Judge J. Garvan Murtha on 11/18/2011. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MATTHEW EDWARD VOOG,
Petitioner,
v.
ANDREW PALLITO,
Respondent.

:
:
:
:
:
:
:

File No. 1:11-cv-76-jgm

ORDER
The Magistrate Judge's Report and Recommendation was filed October 11,
2011. (Doc. 21.) After de novo review and over objection, the Report and
Recommendation is AFFIRMED, APPROVED and ADOPTED. See 28 U.S.C. §
636(b)(1).
Respondent’s partial motion to dismiss (Doc. 3) is GRANTED. Petitioner’s
habeas petition filed pursuant to 28 U.S.C. § 2254 (Paper 1) is DENIED. Further,
Petitioner’s motion for judgment as a matter of law (Doc. 8) and motion to order the
production of documents (Doc. 16) are DENIED, and this case is DISMISSED without
prejudice.
Pursuant to Fed. R. App. P. 22(b), the Court DENIES petitioner a certificate of
appealability (“COA”) because the petitioner failed to make a substantial showing of a
denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). In addition, because the
petition has been dismissed on procedural grounds, the petitioner cannot be issued a
COA due to his failure to demonstrate that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” See Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604, 146 L.
Ed. 2d 542 (2000).
It is further certified that any appeal taken in forma pauperis from this Order
would not be taken in good faith because such an appeal would be frivolous. See 28
U.S.C. § 1915(a)(3).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 18th day of November, 2011.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

2