Delpha v. Southern State Correctional Facility

Filing 10

OPINION AND ORDER Adopting 7 Magistrate Judge's Report and Recommendation granting 3 Respondent's Motion to Dismiss and dismissing 1 Petitioner's Petition for Writ of Habeas Corpus. Pursuant to Fed. R. App. P. 22(b)(l) and 28 U.S .C. § 2253(c)(2), the court DENIES Petitioner a certificate of appealability in this matter because Petitioner has failed to make a substantial showing of the denial of a constitutional right. 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). Signed by Chief Judge Christina Reiss on 1/26/2017. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
GLENN HAROLD DELPHA, SR.,
Petitioner,
v.
SOUTHERN STATE CORRECTIONAL
FACILITY,
Respondent.

~
)
)
)
)
)
)
)
)

2011 JAN .26 PH 3: 40
C UK
:L

11\i~~--

Case No. 2:16-cv..6tr lt, O

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 4, 5, 9 and 11)

This matter came before the court for a review of the Magistrate Judge's October
27, 2016 Report and Recommendation ("R & R") (Doc. 7), in which he recommended
that the court grant Respondent Southern State Correctional Facility's motion to dismiss
Petitioner Glenn Harold Delpha, Sr.'s petition for writ of habeas corpus (Doc. 1). On
November 21, 2016, Petitioner sent a letter to the Clerk of Court, which the court will
treat as an objection. In his one-page objection, Petitioner, a pretrial detainee in the
custody of the State of Vermont, stated he has not received a speedy trial in the Vermont
Superior Court, Criminal Division in Rutland, Vermont. Petitioner also opposed a mental
health examination purportedly ordered by the Vermont Superior Court and asserted•that
the prosecutor and his public defender were stealing from him. Petitioner requested that
this court conduct his trial. Petitioner does not point to any error in the Magistrate
Judge's recommendation that his petition be dismissed because this court is not
authorized to take over the prosecution of Petitioner's state court case.
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)(l); Cullen v. United States, 194 F.3d 401, 405 (2d Cir.
1999). The district judge may accept, reject, or modify, in whole or in part, the findings

- - - --

- ·-·-··--- · -

.

or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(l); accord

Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).

In his six page R & R, the Magistrate Judge carefully reviewed the factual record
and the legal issues before the court. Because Petitioner is in the pretrial phase of his
proceedings and thus is not in custody pursuant to a state court judgment of conviction,
the Magistrate Judge concluded that Petitioner's petition should be construed pursuant to
28 U.S.C. § 2241. The Magistrate Judge recommended dismissal of the petition because
Petitioner had not exhausted his state court remedies. The Magistrate Judge further
determined that Respondent's motion to dismiss should be granted on Younger v. Harris,
401 U.S. 37, 46 (1971) abstention grounds. The court agrees with the Magistrate Judge's
conclusions and therefore adopts them as the Opinion and Order of this court.

CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & Ras the court's Opinion and Order, GRANTS Respondent's motion to dismiss, and
DISMISSES Petitioner's petition for writ of habeas corpus.
Pursuant to Fed. R. App. P. 22(b)(l) and 28 U.S.C. § 2253(c)(2), the court
DENIES Petitioner a certificate of appealability in this matter because Petitoiner has
failed to make a substantial showing of the denial of a constitutional right. 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).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this

:i.h

;....
day of January, 2017.

Ch'fis na Reiss, Chief Judge
United States District Court
2