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)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
James T. Burke,
Petitioner,
v.
Andrew Pallito, Commissioner,
Vermont Department of
Corrections,
Respondent.
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: File No. 2:12 CV 197
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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
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