Opinion
1:22-cv-909
03-02-2023
JORGE GALEAS-MENCHU-EL, JR., Petitioner, v. EDDIE M. BUFFALOE, JR., Respondent.
ORDER
This matter is before this court for review of the Order and Recommendation (“Recommendation”) filed on October 31, 2022, by the Magistrate Judge in accordance with 28 U.S.C. § 636(b). (Doc. 2.) In the Recommendation, the Magistrate Judge recommends that this action be construed as a habeas petition under 28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects certain defects, including the defect that “P[etitioner]'s claim consists of conclusory legal jargon which is not fully understandable as a coherent claim.” (Id.) The Recommendation was served on the Petitioner on October 31, 2022. (Doc. 3.) Petitioner filed objections to the Recommendation, as well as several other filings. (Docs. 4-10.)
Petitioner also paid the $5.00 filing fee on November 22, 2022 (see Doc. Entry dated Nov. 22, 2022), correcting one of the defects cited in the Recommendation (see Doc. 2 at 1).
This court is required to “make a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [M]agistrate [J]udge . . . [O]r recommit the matter to the [M]agistrate [J]udge with instructions.” Id.
This court has appropriately reviewed the Recommendation as well as Petitioner's filings and has made a de novo determination which is largely in accord with the Magistrate Judge's Recommendation. This court therefore adopts the Recommendation in part, see 28 U.S.C. § 636(b)(1)(C), with the exception that the sua sponte dismissal of the Petition will be with prejudice because the frivolous nature of the claims Petitioner seeks to raise has become clear as a result of his additional filings.
IT IS THEREFORE ORDERED that the Magistrate Judge's Recommendation, (Doc. 2), is ADOPTED IN PART.
IT IS FURTHER ORDERED that this action be, and is hereby DISMISSED as frivolous under Rule 4 of the Rules Governing Section 2254 Cases, and the Court denies a certificate of appealability.
This the 2nd day of March, 2023.