Burke v. Pallito

Filing 47

ORDER ADOPTING 45 REPORT AND RECOMMENDATION: denying 30 Renewed Motion to Dismiss; denying 4 Motion for Writ of Habeas Corpus; denying 33 Motion for Summary Judgment; granting 40 Cross-Motion for Summary Judgment. A certificate of appeal ability is DENIED because the petitioner has failed to make a substantial showing of denial of a federal right. Furthermore, it is certified that any appeal taken in forma pauperis would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge William K. Sessions III on 11/20/2013. (law)

Download PDF
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT James T. Burke, Petitioner, v. Andrew Pallito, Commissioner, Vermont Department of Corrections, Respondent. : : : : File No. 2:12 CV 197 : : : : : ORDER The Report and Recommendation of the United States Magistrate Judge was filed November 8, 2013. Petitioner’s objections were filed November 19, 2013. A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b) (1); Perez-Rubio v. Wyckoff, 718 F.Supp. 217, 227 (S.D.N.Y. 1989). The district judge may "accept, reject, or modify, in whole or in part, the magistrate's proposed findings and recommendations." Id. After careful review of the file, the Magistrate Judge's Report and Recommendation and the objections, this Court ADOPTS the Magistrate Judge's recommendations in full. IT IS HEREBY ORDERED that the Respondent’s Renewed Motion to Dismiss (Doc. 30) is DENIED; Petitioner’s Motion for Summary Judgment (Doc. 33) is DENIED; and Respondent’s Cross-Motion for Summary Judgment (Doc. 40) is GRANTED. In addition, Petitioner’s Motion for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 (Doc. 4) is DENIED. Pursuant to Fed. R. App. P. 22(b), a certificate of appealability is DENIED because the petitioner has failed to make a substantial showing of denial of a federal right. Furthermore, the petitioner’s grounds for relief do not present issues which are debatable among jurists of reasons, which could have been resolved differently, or which deserve further proceedings. See e.g., Flieger v. Delo, 16 F.3rd 878, 882-83 (8th Cir.) cert. denied, 513 U.S. 946 (1994); Sawyer v. Collins, 986 F.2d 1493, 1497 (5th cir.), cert. denied, 508 U.S. 933 (1993). Furthermore, it is certified that any appeal of this matter would not be taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3). Dated at Burlington, in the District of Vermont, this 20th day of November, 2013. /s/ William K. Sessions III William K. Sessions III District Court Judge

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?