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concluding that § 2244(d)(D) would not apply where petitioner "d[id] not assert that he observed the alleged ineffective conduct only recently"
Summary of this case from Rodriguez v. New YorkOpinion
File No. 2:14 CV 110
02-24-2015
Leroy Goodwin, Petitioner, v. Andrew Pallito, Commissioner, Vermont Department of Corrections, Respondent.
ORDER
The Report and Recommendation of the United States Magistrate Judge was filed September 25, 2014. Petitioner's objections were filed February 13, 2015.
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 as to all of Goodwin's claims except for his claim alleging errors in his PCR case. It is further ordered that under Rule 4 of the Rules Governing §2254 Cases, Goodwin's claim attacking the PCR proceedings is DISMISSED and Goodwin's Petition (Doc. 3) is DISMISSED.
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).
THIS CASE IS DISMISSED.
Dated at Burlington, in the District of Vermont, this 24th day of February, 2015.
/s/ William K. Sessions III
William K. Sessions III
Judge U.S. District Court