Opinion
9:22-CV-589
12-20-2023
TIMOTHY L. ELLIS, Petitioner, v. JOSEPH E. COREY, Respondent.
APPEARANCES: TIMOTHY L. ELLIS Petitioner, Pro Se Auburn Correctional Facility HON. LETITIA JAMES New York State Attorney General Attorneys for Respondent OF COUNSEL: ROBERT C. MCIVER, ESQ. Ass't Attorney General
APPEARANCES:
TIMOTHY L. ELLIS
Petitioner, Pro Se
Auburn Correctional Facility
HON. LETITIA JAMES
New York State Attorney General
Attorneys for Respondent
OF COUNSEL:
ROBERT C. MCIVER, ESQ.
Ass't Attorney General
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, UNITED STATES DISTRICT JUDGE.
On June 6, 2022, pro se petitioner Timothy Ellis (“petitioner”) filed this action seeking habeas corpus relief. Dkt. No. 1. After an initial review of the petition, respondent Joseph E. Corey (“respondent”), the Superintendent of the facility where petitioner was being held in state custody, was ordered to respond, Dkt. No. 3. Thereafter, the parties briefed the matter, Dkt. Nos. 11, 18-19, 22, and U.S. Magistrate Judge Daniel J. Stewart advised by Report & Recommendation (“R&R”) that the petition should be denied and dismissed in its entirety, Dkt. No. 27.
Petitioner has filed objections. Dkt. No. 28. Broadly speaking, petitioner's objections challenge the legal consequences of certain events that occurred in the state-court criminal proceedings. In particular, petitioner reiterates his assertion that the prosecution should be faulted for provoking the mistrial, which means Double Jeopardy should have barred the re-trial where he was ultimately convicted.
But this Fifth Amendment exception to the rule permitting re-trials is a limited one. And it does not bar a re-trial in cases where, as here, the record below demonstrates that the conflict was promptly raised and the issue was fully explored by the presiding state-court judge. In short, there is nothing in the record or in petitioner's submissions to substantiate his argument that the prosecution's conduct was intentional. And a review of petitioner's other objections confirm that he has not identified any errors that would warrant rejection or modification of the R&R.
Thus, upon de novo review, the R&R is accepted and will be adopted. See 28 U.S.C. § 636(b)(1)(c).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. The petition is DENIED and DISMISSED; and
3. No Certificate of Appealability shall be issued.
IT IS SO ORDERED.