Kane v. Bennington County, Vermont et al

Filing 4

OPINION AND ORDER Adopting 3 Magistrate Judge's Report and Recommendation denying 2 Motion for Leave to Proceed in forma pauperis and dismissing 1 Motion for Writ of Habeas Corpus. Pursuant to Fed. R. App. P. 22(b)(1) and 28:2253(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. Signed by Judge Christina Reiss on 6/20/2018. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
PATRICIA KANE,
Petitioner,
V.

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VERMONT STATE JUDGE HOWARD,
BENNINGTON COUNTY; GOLDSTEIN,
ST. ALBANS OFFICE OF PROBATION &
PAROLE; and LISA MENARD,
COMMISSIONER, VERMONT
DEPARTMENT OF CORRECTIONS,
Respondents.

2fil8 JUN 21 AH 8: 55
CLER/{
BY~
DtPUTY CLEH'K

Case No. 2:18-cv-70

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OPINION AND ORDER
ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
(Docs. 1, 2, & 3)
This matter came before the court for a review of the Magistrate Judge's April 30,
2018 Report and Recommendation (the "R & R"). (Doc. 3.) On April 13, 2018, selfrepresented Petitioner Patricia Kane filed a motion to proceed in forma pauper is and a
one-page petition for writ of habeas corpus, wherein she alleges malicious prosecution,
unlawful arrest, and unlawful confinement. (Docs. 1 & 2.) In the R & R, the Magistrate
Judge recommended that the court dismiss Petitioner's petition on the basis that she
failed to allege facts establishing the court's jurisdiction, and alternatively because she
failed to exhaust her state court remedies. The Magistrate Judge also recommended that
the court deny Petitioner's motion to proceed in forma pauperis because she did not
include an affidavit as required. None of the parties has filed an objection to the R & R,
and the time to do so has expired.
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.

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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 five page R & R, the Magistrate Judge carefully considered the petition and
determined that Petitioner failed to set forth facts establishing the court's jurisdiction
because she neither alleged that she was convicted of a crime nor that she is in custody.
See Ogunwomoju v. United States, 512 F.3d 69, 73 (2d Cir. 2008) (quoting 28 U.S.C.
§ 2254(a)) ("A petitioner must be 'in custody' in order to invoke habeas jurisdiction of

the federal courts."). In the alternative, observing that Petitioner has not demonstrated
that the Vermont Supreme Court has had an opportunity to review the alleged errors
contained in her petition, the Magistrate Judge concluded that Petitioner failed to exhaust
her state court remedies. See 28 U.S.C. § 2254(b)(l)(A) ("An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that[] ... the applicant has exhausted the remedies
available in the courts of the State"). To the extent that Petitioner names as respondents a
Vermont trial court judge and an officer from the Vermont Office of Probation and
Parole, the Magistrate Judge correctly recommended that the court dismiss Petitioner's
claims against those defendants. See 28 U.S.C. § 2254, Rule 2(a) (requiring that a
petitioner's habeas petition "must name as respondent the state officer who has
custody"); see also David Hill v. New York, 2011 WL 2671506, at* 1 (W.D.N.Y. July 8,
2011) (same).
With respect to Petitioner's motion for leave to proceed informa pauperis, the
Magistrate Judge properly recommended that the court deny the motion because
Petitioner failed to comply with the requirements of28 U.S.C. § 1915(a)(l). See id.
(requiring movant to "submit[] an affidavit that includes a statement of all assets such
prisoner possesses that the person is unable to pay such fees or give security therefor.").

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The court finds the Magistrate Judge's conclusions well-reasoned and consistent with the
applicable law.

CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's April
30, 2018 R & R (Doc. 3) and DENIES and DISMISSES Petitioner's petition for writ of
habeas corpus (Doc. 1). Petitioner's motion for leave to proceed informa pauperis is
DENIED (Doc. 2).
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.

II,

SO ORDERED.
Dated at Burlington, in the District of Vermont, this

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day of June, 2018.

c ~ - t - J u _ d _ g _ e_ __
United States District Court

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