Opinion
Case No. 09-CV-1513 (KMK)(PED)
05-31-2012
MELVIN McCOY MILES, Petitioner, v. ROBERT ERCOLE, Superintendent, Green Haven Correctional Facility, Respondent.
ORDER ADOPTING REPORT & RECOMMENDATION
KENNETH M. KARAS, District Judge:
Melvin McCoy Miles ("Petitioner") was convicted on April 27, 2006 in Dutchess County Court of one count each of Attempted Murder in the Second Degree, in violation of N.Y. Penal Law §§ 110.00, 125.25(1), Burglary in the First Degree, in violation of N.Y. Penal Law § 140.30(2), and Robbery in the First Degree, in violation of N.Y. Penal Law § 160.15(1). Petitioner was also convicted of two counts of Assault in the First Degree, in violation of N.Y. Penal Law § 120.10(1), (4).
Petitioner was sentenced as a second felony offender to concurrent terms of imprisonment of twenty-one years for the attempted murder conviction, twenty-one years on one of the assault counts, twelve years on the other assault count, and eight years each on the robbery and burglary convictions. (Sentencing Tr. (Ex. 19)). Following a direct appeal, the Second Department affirmed Petitioner's conviction on October 30, 2007. People v. Miles, 843 N.Y.S.2d 836 (App. Div. 2007), leave to appeal denied, 81 N.E.2d 1209 (N.Y. 2008).
On February 19, 2009, Petitioner filed a petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, seeking relief on seven different grounds. (Dkt. No. 1.) The case was referred to the Honorable Paul E. Davison. (Dkt. No. 2.) On October 18, 2011, Magistrate Judge Davison issued a thorough Report and Recommendation ("R&R") recommending that this Court dismiss the Petition in its entirety. (Dkt. No. y.) Petitioner has not filed any objections to the R&R. When no objections are filed, the Court reviews a R&R on a dispositive motion for clear error. See Andrews v. LeClaire, 709 F. Supp. 2d 269, 271 (S.D.N.Y. 2010); Eisenberg v. New Eng. Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008). The Court has reviewed the R&R and the Petition, and finding no error, clear or otherwise, adopts the R&R.
Magistrate Judge Davison provided notice that objections to the R&R were, pursuant to Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636(b)(1), due within seventeen days, and that the failure to object would constitute a waiver of Petitioner's right to appeal. (R&R 26).
Accordingly, it is hereby
ORDERED that the Report and Recommendation, dated October 18, 2011, is ADOPTED in its entirety. It is further
ORDERED that Petitioner's writ of habeas corpus is DISMISSED with prejudice. It is further
ORDERED that because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue, see 28 U.S.C. § 2253(c)(2); Lucidore v. N. Y. State Div. of Parole, 209 F.3d 107, 111-12 (2d Cir. 2000), and the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. It is further
ORDERED that the Clerk of the Court is respectfully directed to close this case.
SO ORDERED. White Plains, New York
Date: May 31, 2012
___________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE
Service List (by mail)
Melvin McCoy Miles, Fro Se
06R2048
Green Haven Correctional Facility
594 Route 216
Stormville, New York 12582-0010
William V. Grady, Esq.
Office of the Dutchess County District Attorney
236 Main Street
Poughkeepsie, New York 12601
Copy To:
Honorable Paul E. Davison
United States Magistrate Judge