Opinion
Case No. 08-CV-6916 (KMK)(GAY)
02-27-2012
SHAWN WEST, Petitioner, v. THE PEOPLE OF THE STATE OF NEW YORK, Respondent.
Service List For Mailing by Clerk's Office: Shawn West Watkinson House Pro Se Joseph M, Latino Office of the District Attorney Westchester County Courthouse Counsel for Respondent
ORDER ADOPTING
REPORT & RECOMMENDATION
KENNETH M. KARAS, District Judge:
On April 24, 1997, Shawn West ("Petitioner"), pleaded guilty to criminal possession of a forged instrument in the third degree, a Class A misdemeanor, under N.Y. Penal Law § 170.20. (Pet. for Writ of Habeas Corpus ("Pet.") 2 (Dkt. No. 1).) On August 7, 1997, Petitioner was sentenced to a term of six months' imprisonment. (Id.) Petitioner did not directly appeal this conviction, and served the entire imprisonment term.
On March 6,2004, Petitioner moved to vacate the judgment pursuant to N.Y. Crim. Proc. Law § 440.10. (Resp't's Mem. of Law, Ex. 7 (Dkt. No. 8).) By order dated January 20, 2005, the Village Court of Port Chester denied Petitioner's Motion to Vacate Judgment. (Id., Ex. 10.) Petitioner's subsequent Motion for Leave to Appeal was denied by the Appellate Term of the Supreme Court of the State of New York for the Ninth and Tenth Judicial Districts on September 12,2007. (Id, Ex. 11.)
On August 1, 2008, Petitioner filed a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, claiming that his guilty plea was coerced, and that he was denied effective assistance of counsel. (Pet. 5, 7.)
The case was referred to the Honorable George A. Yanthis. (Dkt, No. 3.) On October 31, 2008, Magistrate Judge Yanthis held a telephone conference with the Parties, during which Petitioner was "afforded the opportunity to set forth additional argument in support of his petition," but declined to do so, (Report & Recommendation 2 (Dkt. No. 10).) On November 16, 2010, Magistrate Judge Yanthis issued a Report and Recommendation ("R&R") recommending that this Court dismiss the Petition in its entirety as untimely. Petitioner was given until December 3, 2010 to file an objection to the R&R, and did not file an objection.
After the R&R was issued by Magistrate Judge Yanthis, the Clerk's Office mailed a copy to Petitioner at his last known address. The R&R was returned to the Clerk's Office marked "Return to Sender, Not Deliverable as Addressed, Unable to Forward," On December 8, 2010, the Clerk's Office again sent the R&R to Petitioner's last known address, and again the R&R was returned as undeliverable.
Service of the R&R was "complete upon mailing" to petitioner's last known address, Fed. R. Civ, P. 5(b)(2)(C), and courts in similar situations have reviewed an R&R as having no objections, even though there was no indication that the petitioner received the R&R. See Savinon v. Sears, No. 09-CV-2529, 2012 WL 77848, at *1 (S.D.N.Y. Jan. 10, 2012) (adopting R&R with no objections, where R&R was mailed to petitioner's last known address and was returned as undeliverable, and petitioner had not left a forwarding address); see also Brown v. Pa. Dept of Corr, No. 10-CV-1194, 2011 WL 290217, at * 1 (M.D. Pa. Jan. 25, 2011) (same).
When no objections are filed, the Court reviews an R&R on a dispositive motion for clear error. See Whitfield v. Graham, No. 10-CV-3038, 2011 WL 5994955, at * 1 (S.D.N.Y. Nov. 29, 2011) ("When no objections to a report and recommendation are made, the Court may adopt the report if there is no clear error on the face of the record") (citations omitted); Eisenberg v. New Eng. Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) (same). The Court has reviewed the R&R and the Petition, and finding no error, clear or otherwise, adopts the R&R.
Accordingly, it is hereby
ORDERED that the Report and Recommendation, dated November 16, 2010, 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 enter a judgment in favor of Respondent and to close this case. SO ORDERED. Dated: White Plains. New York ,
February 27, 2012
___________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE
Service List
For Mailing by Clerk's Office:
Shawn West
Watkinson House
Pro Se
Joseph M, Latino
Office of the District Attorney
Westchester County Courthouse
Counsel for Respondent
Copy To:
Honorable George A. Yanthis
United States Magistrate Judge