Pettus v. McGinnis

Full title: JAMES PETTUS, Petitioner, v. SUPERINTENDENT McGINNIS, Respondent

Court: United States District Court, S.D. New York

Date published: Jun 8, 2005

No. 04 Civ. 2619 (LAK) (S.D.N.Y. Jun. 8, 2005)

Opinion

No. 04 Civ. 2619 (LAK).

June 8, 2005

ORDER

LEWIS KAPLAN, District Judge

For the reasons set forth in the report and recommendation of Magistrate Judge Peck, dated May 18, 2005, respondent's motion to dismiss the petition without prejudice is granted. While petitioner objects to the report and recommendation, claiming that the issues raised in this habeas petition "are not raised on direct appeal," it is not clear that they cannot be raised there, it being undisputed that the direct appeal still is pending in the Appellate Division. Petitioner's objections therefore are overruled. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).

SO ORDERED.