Opinion
9:10-CV-677 (FJS/ATB)
04-02-2012
JAMES COMFORT, Petitioner, v. THOMAS LAVALLEY, Respondent.
JAMES COMFORT 03-B-1210 Clinton Correctional Facility Dannemora, New York 12929 Petitioner pro se OF COUNSEL OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL New York, New York 10271 Attorneys for Respondent
APPEARANCES
JAMES COMFORT
03-B-1210
Clinton Correctional Facility
Dannemora, New York 12929
Petitioner pro se
OF COUNSEL
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
New York, New York 10271
Attorneys for Respondent
THOMAS B. LITSKY, AAG
SCULLIN, Senior Judge
ORDER
Petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 10, 2010. See Dkt. No. 1. Respondent filed an answer and a memorandum of law on November 24, 2010. See Dkt. No. 10. Petitioner filed a traverse on January 10, 2011. See Dkt. No. 16. On June 9, 2011, Magistrate Judge Baxter issued a Report-Recommendation in which he recommended that this Court deny and dismiss the petition and deny a Certificate of Appealability. See Dkt. No. 17 at 18. Plaintiff filed objections to those recommendations. See Dkt. No. 18.
"When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review." Trombley v. Oneill, No. 8:11-CV-0569, 2011 WL 5881781, *2 (N.D.N.Y. Nov. 23, 2011) (citing Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). "To be 'specific,' the objection must, with particularity, 'identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.'" Id. (quotation and footnote omitted). Where a party makes no objection, or only a general objection, to a portion of a magistrate judge's report-recommendation, the court reviews that portion for "clear error." See id. (citations omitted). After completing the appropriate review, "the Court may 'accept, reject, or modify, in whole or in part,'" the magistrate judge's findings and recommendations. Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. Sept. 29, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)).
The Court conducted a de novo review of Magistrate Judge Baxter's Report-Recommendation in light of Petitioner's objections. Having completed that review, the Court hereby
ORDERS that Magistrate Judge Baxter's June 9, 2011 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Petitioner's petition is DENIED and DISMISSED; and the Court further
ORDERS that a Certificate of Appealability will not issue in this case because Petitioner has not "made a substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2); and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: April 2, 2012
Syracuse, New York
__________________
Frederick J. Scullin, Jr.
Senior United States District Court Judge