Opinion
File No. 2:12 CV 197
11-21-2013
James T. Burke, Petitioner, v. Andrew Pallito, Commissioner, Vermont Department of Corrections, Respondent.
ORDER
The Report and Recommendation of the United States Magistrate Judge was filed November 8, 2013. Petitioner's objections were filed November 19, 2013.
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.
IT IS HEREBY ORDERED that the Respondent's Renewed Motion to Dismiss (Doc. 30) is DENIED; Petitioner's Motion for Summary Judgment (Doc. 33) is DENIED; and Respondent's Cross-Motion for Summary Judgment (Doc. 40) is GRANTED. In addition, Petitioner's Motion for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 (Doc. 4) is DENIED.
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).
Dated at Burlington, in the District of Vermont, this 20th day of November, 2013.
________
William K. Sessions III
District Court Judge