Opinion
9:18-cv-0739 (BKS/ATB)
12-09-2019
SPENCER B. DURHAM, Petitioner, v. LISA MENARD and NEW YORK STATE ATTORNEY GENERAL, Respondents.
Appearances: Petitioner, pro se: Spencer B. Durham Tallahatchie County Correctional Facility 415 U.S. Highway 49 North Tutwiler, MS 38963 For Respondent Lisa Menard: Thomas J. Donovan, Jr. Vermont Attorney General's Office Benjamin D. Battles Solicitor General 109 State Street Montpelier, VT 05609 For Respondent New York State Attorney General: Letitia James Attorney General of the State of New York Paul B. Lyons Assistant Attorney General, of Counsel 28 Liberty Street New York, NY 10005
Appearances:
Petitioner, pro se:
Spencer B. Durham
Tallahatchie County Correctional Facility
415 U.S. Highway 49 North
Tutwiler, MS 38963 For Respondent Lisa Menard:
Thomas J. Donovan, Jr.
Vermont Attorney General's Office
Benjamin D. Battles
Solicitor General
109 State Street
Montpelier, VT 05609 For Respondent New York State Attorney General:
Letitia James
Attorney General of the State of New York
Paul B. Lyons
Assistant Attorney General, of Counsel
28 Liberty Street
New York, NY 10005 Hon. Brenda K. Sannes, United States District Judge :
MEMORANDUM-DECISION AND ORDER
Petitioner Spencer Durham commenced this habeas corpus action under 28 U.S.C. § 2254 on June 25, 2018. (Dkt. No. 1). A response to the petition was filed by respondents on October 25, 2018. (Dkt. Nos. 22 and 24). This matter was assigned to United States Magistrate Judge Andrew T. Baxter who, on October 25, 2019, issued a Report-Recommendation recommending that the petition be denied and dismissed and that a certificate of appealability be denied. (Dkt. No. 31). Magistrate Judge Baxter advised the parties that under 28 U.S.C. § 636(b)(1) and Local Rule 72.1, they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. (Dkt. No. 31, at 26-27). No objections have been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to 1983 amendment. Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report-Recommendation in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 31) is ADOPTED in its entirety; and it is further
ORDERED that the petition (Dkt. No. 1) is DENIED AND DISMISSED; and it is further
ORDERED that no certificate of appealability be issued because Petitioner has failed to make "a substantial showing of the denial of a constitutional right" as required by 28 U.S.C. § 2253(c)(2). Any further request for a certificate of appealability must be addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 9, 2019
/s/ _________
Brenda K. Sannes
U.S. District Judge