Opinion
10 Civ. 6652 (KPF)
08-11-2014
FELIX MORET, Petitioner, v. PHILIP D. HEATH, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
:
Petitioner Felix Moret, who is proceeding pro se, initiated this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition") in 2010, challenging his state court conviction for first-degree manslaughter. In 2011, Petitioner asked the Court to hold the Petition in abeyance while he exhausted certain other claims in state court. The Court directed Petitioner to provide additional information in response to that request; Petitioner did not respond, and has failed to respond or to update the Court for more than two years. Pending now before the Court is the unopposed Report and Recommendation of United States Magistrate Judge Debra Freeman, recommending that Petitioner's application for a stay be denied, and the Petition be dismissed. (Dkt. #20).
Familiarity with the facts, which are set forth in detail in the Report and Recommendation (Dkt. #20), is assumed.
A court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). To that end, a court may accept those portions of a report to which no specific, written objection is made, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997) (citing Fed. R. Civ. P. 72(b) and Thomas v. Am, 474 U.S. 140, 149 (1985)). To the extent a petitioner makes specific objections to a magistrate judge's findings, a court must undertake a de novo review of the objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Here, Petitioner has filed no objections to the Report and Recommendation. The Court finds no clear error in Magistrate Judge Freeman's recommendation, which is well-reasoned and amply justified in light of the facts and controlling law. Accordingly, the Court adopts the recommendation in full.
CONCLUSION
The Report and Recommendation is ADOPTED in full. Moreover, since Petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c).
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court is directed to dismiss the Petition and to mark the case as closed.
SO ORDERED. Dated: August 11, 2014
New York, New York
/s/_________
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Felix Moret
DIN# 05-A-2930
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821