Opinion
9:21-cv-813 (BKS/CFH)
03-18-2022
WILLIE STRONG, Petitioner, v. SCOTT FINLEY and THE STATE OF NEW YORK Respondents.
Petitioner pro se Willie Strong For Respondent State of New York Letitia James Attorney General of the State of New York Hannah Stith Long Assistant Attorney General
Petitioner pro se Willie Strong
For Respondent State of New York Letitia James Attorney General of the State of New York Hannah Stith Long Assistant Attorney General
MEMORANDUM-DECISION AND ORDER
Hon. Brenda K. Sannes, United States District Judge
On July 19, 2021, Petitioner pro se Willie Strong filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2006 Onondaga County conviction for attempted criminal sale of a controlled substance in the third degree, in violation of New York Penal Law §§ 110 and 220.39. (Dkt. No. 1; see Dkt. No. 11-2, at 16). Respondent State of New York filed a motion to dismiss the petition for lack of subject matter jurisdiction because Petitioner's sentence for the 2006 conviction fully expired in June 2008, thirteen years before he filed the present petition. (Dkt. No. 11). The motion was fully briefed, with a response from Petitioner in opposition to the motion and a reply. (Dkt. Nos. 12, 13). This matter was assigned to United States Magistrate Judge Christian F. Hummel who, on February 11, 2022, issued a Report & Recommendation recommending that respondent's motion to dismiss be granted and that Plaintiff's petition be dismissed for lack of subject matter jurisdiction because Petitioner was not in custody when he filed the petition. (Dkt. No. 14). The Report recommended that no certificate of appealability be issued because Petitioner failed to make a “substantial showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2). (Id. at 11). Magistrate Judge Hummel advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report, and that failure to object to the report within fourteen days would preclude appellate review. (Id.).
On February 28, 2022, Petitioner filed a one-sentence letter, asking the court to construe the letter “as a request for a C.O.A.” and “an objection” to the Report & Recommendation. (Dkt. No. 15). The letter did not identify a basis for either a Certificate of Appealability or an objection to the Report & Recommendation.
This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper objection is one that identifies the specific portions of the [report-recommendation] that the objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.Supp.2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks omitted). Properly raised objections must be “specific and clearly aimed at particular findings” in the report. Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009). “[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal . . . .” Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920 at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25, 2011) (citation omitted). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id.
Here, Petitioner has not identified any objection to the Report & Recommendation, and the Court's review is therefore for clear error. Having reviewed the Report & Recommendation for clear error and found none, the Court adopts the Report & Recommendation in its entirety.
For these reasons, it is hereby
ORDERED that Magistrate Judge Hummel's Report & Recommendation (Dkt. No. 14) is ADOPTED in all respects; and it is further
ORDERED that Respondent's motion to dismiss (Dkt. No. 11) is GRANTED and the petition is DISMISSED for lack of subject matter jurisdiction; and it is further
ORDERED that no certificate of appealability is issued 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). Any further request for a certificate of appealability must be addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk serve a copy of this Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.