Opinion
19-CV-07054 (PMH)
05-24-2022
SAMUEL LEWIS, JR., Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS & COMMUNITY SUPERVISION, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
PHILIP M. HALPERN, United States District Judge:
On June 4, 2013, Samuel Lewis, Jr. (“Petitioner”) was convicted by a jury in the New York State Supreme Court, Orange County of one count of Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03(3). (Doc. 14-8 at 26). Petitioner was then sentenced to a term of six years' incarceration with five years' post-release supervision. (Doc. 14-9 at 7).
On July 26, 2019, Petitioner initiated the instant action, a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, to challenge both the above-referenced conviction and sentence. (Doc. 1). On September 13, 2019, Judge Cathy Seibel-before whom this matter proceeded before it was reassigned to this Court on March 17, 2020-issued an Order of Reference referring the Petition to Magistrate Judge Paul E. Davison. (Doc. 9).
On April 25, 2022, Magistrate Judge Davison issued a Report and Recommendation (“R&R”) recommending that the Petition be denied. (Doc. 16). The R&R advised as follows:
Pursuant to 28 U.S.C. § 636(b)(1)(C), Rule 72(b) of the Federal Rules of Civil Procedure and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of
seventeen (17) days, from service of this Report and Recommendation to serve and file written objections.(Id. at 18-19). Magistrate Judge Davison warned further that “[f]ailure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.” (Id. at 19). More than seventeen days have passed since a copy of the R&R was mailed to Petitioner, and no objections have been filed.
A copy of the R&R was mailed to Petitioner by Magistrate Judge Davison's chambers at the address that he previously provided to the Court (Doc. 2), 130 Fullerton Avenue, Newburgh, NY 12550, on April 25, 2020 (Doc. 16 at 1).
“A district court reviewing a magistrate judge's report and recommendation ‘may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.'” Antoine v. Warden, No. 20-CV-05130, 2021 WL 4066654, at *1 (S.D.N.Y. Sept. 7, 2021) (quoting 28 U.S.C. § 636(b)(1)). “The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record.” Olivo v. Graham, No. 15-CV-09938, 2021 WL 3271833, at *1 (S.D.N.Y. July 30, 2021) (citing Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003)).
Upon a careful and complete review of the R&R, the Court finds no clear error in Magistrate Judge Davison's thorough and well-reasoned analysis, and adopts the R&R in its entirety for the reasons set forth therein. Consequently, the Petition is DENIED. The Clerk of the Court is respectfully directed to mail a copy of this Order to Petitioner at the address he previously provided to the Court (Doc. 2), 130 Fullerton Avenue, Newburgh, NY 12550, and close this case.
SO ORDERED: