Opinion
9:22-CV-731
08-30-2023
NICHOLAS A. MAY, Petitioner, v. JOSEPH E. COREY, Superintendent of Auburn Correctional Facility, Respondent.
APPEARANCES: NICHOLAS A. MAY Petitioner, Pro Se OF COUNSEL: JAMES FOSTER GIBBONS, ESQ. Ass't Attorney General HON. LETITIA JAMES New York State Attorney General Attorneys for Respondent
APPEARANCES:
NICHOLAS A. MAY
Petitioner, Pro Se
OF COUNSEL:
JAMES FOSTER GIBBONS, ESQ.
Ass't Attorney General
HON. LETITIA JAMES
New York State Attorney General
Attorneys for Respondent
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, UNITED STATES DISTRICT JUDGE
On July 11, 2022, pro se petitioner Nicholas May (“petitioner”), an inmate held in state custody, filed this action seeking federal habeas relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1. Respondent was initially directed to answer the petition, Dkt. No. 2, but later sought and received permission to file a motion to dismiss the petition as untimely, Dkt. Nos. 10, 11, 12. Although petitioner was given an opportunity to respond to that motion, Dkt. No. 13, and received four extensions of time in which to do so, Dkt. Nos. 15, 17, 19, 21, to date petitioner has not filed any response to the pending motion.
On August 14, 2023, U.S. Magistrate Judge Miroslav Lovric advised by Report & Recommendation (“R&R”) that respondent's motion to dismiss the petition be granted. Dkt. No. 24. As Judge Lovric explained, petitioner had failed to file his petition within the one-year statute of limitations. Id. Judge Lovric also concluded that none of the exceptions to this deadline-statutory tolling, equitable tolling, or even the equitable exception for claims of actual innocence-applied to petitioner's claims. Id.
Petitioner has not filed objections, and the time period in which to do so has expired. See Dkt. No. 24. Upon review for clear error, the R&R is accepted and will be adopted in all respects. See FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 24) is ADOPTED;
2. Respondent's motion to dismiss (Dkt. No. 12) is GRANTED;
3. The petition is DENIED and DISMISSED;
4. No Certificate of Appealability shall issue 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); and
5. Any further request for a Certificate of Appealability must be addressed to the U.S. Court of Appeals in accordance with Rule 22(b) of the Federal Rules of Appellate Procedure.
The Clerk of the Court is directed to terminate the pending motions, enter a judgment accordingly, and close the file.
IT IS SO ORDERED.