Opinion
Civil Action 23-12582-RGS
09-03-2024
HERVE OLIVIER, JR., Petitioner v. MASSACHUSETTS DEPARTMENT OF CORRECTION, Respondent
ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
I agree with Magistrate Judge Boal's careful and succinct analysis of the record and her conclusions that: (1) the petition is untimely and that there are no extenuating circumstances that would toll (or excuse) petitioner's five-year delay in filing for habeas relief; and (2) that petitioner has failed (woefully) to meet his “heavy” burden of showing compliance with the statutory exhaustion requirement, 28 U.S.C. § 254(b)(1)(A). Consequently, the Recommendation is ADOPTED, the Respondent's motion to dismiss is ALLOWED, and the Petition is DISMISSED with prejudice. The Clerk will enter judgment for the Respondent and close the case. Petitioner is advised that any request for the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 is also DENIED, the court discerning no meritorious or substantial basis supporting an appeal.
Olivier has not filed a timely Objection to the Magistrate's Report and Recommendation. However, on August 5, 2024, he improperly filed a Notice of Appeal of the Magistrate Judge's denial of his application for further appellate review and motion to withdraw his guilty plea. See Dkt #35 appealing 3/29/24 Order (Dkt #25). Magistrate Judge Boal issued her Report and Recommendation on August 13, 2024. See Dkt # 41; Fed. R. App. P. 4 (Appeal as of Right-When Taken).
SO ORDERED.