Brink v. State of Vermont et al

Filing 23

ORDER ADOPTING 16 REPORT AND RECOMMENDATION: granting 10 Motion to Dismiss and denying 1 Motion for Writ of Habeas Corpus; denying as moot 6 Motion for Summary Judgment and 2 Motion to Appoint Counsel. A certificate of appealability is DENIED because thepetitioner 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 9/18/2014. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Ryan Brink,
Petitioner,

:
:
:
v.
: File No. 2:13 CV 319
:
Andrew Pallito, Commissioner,
:
Vermont Department of Corrections, :
Respondent.
:
ORDER
The Report and Recommendation of the United States
Magistrate Judge was filed August 12, 2014.

Petitioner’s

objections were filed September 8, 2014
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.
The respondent’s motion to dismiss (Doc. 10) is GRANTED
and Brink’s petition for writ of habeas corpus (Doc. 1), is
DENIED. It is further ordered that Brink’s Motion to Appoint

1

Counsel (Doc. 2) and Motion for Summary Judgment (Doc. 6) are
DENIED AS MOOT.
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

proceedings.

differently,

or

which

deserve

further

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).
THIS CASE IS DISMISSED.
Dated at Burlington, in the District of Vermont, this 18th
day of September, 2014.

/s/ William K. Sessions III
William K. Sessions III
Judge U.S. District Court

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