Brown v. Lee

• Court: District Court, S.D. New York
• Decided: February 23, 2024
• Docket: 1:21-cv-02854
• Status: Unknown

Opinion

USDC SDNY DOCUMENT UNITED STATES DISTRICT COURT ee SOUTHERN DISTRICT OF NEW YORK Rint ROBERT BROWN, Petitioner, 21 Civ. 2854 (JHR) (KHP) -V.- ORDER ADOPTING REPORT AND RECOMMENDATION SUPERINTENDENT W. LEE, Respondent. JENNIFER H. REARDEN, District Judge: On April 1, 2021, pursuant to 28 U.S.C. § 2254, Petitioner Robert Brown, acting pro se, filed a petition for a writ of habeas corpus (the “Petition”) in connection with his August 1, 2016 state-court convictions for burglary, unauthorized use of a vehicle, third-degree grand larceny, fourth-degree grand larceny, tampering with physical evidence, and reckless endangerment.! See ECF No. 2. On September 9, 2022, the Petition was referred to Magistrate Judge Katharine H. Parker. ECF No. 37. On March 24, 2023, Petitioner filed a motion for summary judgment (the “Motion”) on the Petition. ECF No. 40. On August 25, 2023, following reassignment to this Court, the Court amended the referral to Judge Parker to include Petitioner’s Motion. ECF No. 45.” On September 15, 2023, Judge Parker issued a Report and Recommendation (the “Report”) recommending that the Court deny both the Motion and the Petition in their entirety. See ECF No. 49. For the reasons stated below, the Court adopts the Report in full. 1. PROCEDURAL HISTORY On September 18, 2023, a copy of the Report was mailed to Petitioner at Coxsackie Correctional Facility. See Sept. 18, 2023 ECF Entry. On September 26, 2023, Petitioner

' Familiarity with the facts, which are set forth in detail in the Report and Recommendation, is assumed. See ECF No. 49. This case was initially assigned to the Honorable Andrew L. Carter, Jr.

informed the Court that he had been transferred to Woodbourne Correctional Facility and provided his new address for mailing. ECF No. 50. On October 2, 2023, Judge Parker notified Petitioner that she had issued the Report and that a copy had been “mailed to his prior address in Coxsackie.” ECF No. 51. “Out of an abundance of caution and to ensure Petitioner ha[d] a copy of the Report,” Judge Parker directed that the October 2, 2023 Order and a copy of the Report be mailed to Petitioner at his new Woodbourne address. Id. The docket reflects that this Order was

mailed on October 3, 2023. See Oct. 3, 2023 ECF Entry. No objections to the Report were filed. II. LEGAL STANDARDS In reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A district court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). “When no objections are filed, the Court reviews [a Report and Recommendation] on a dispositive motion for clear error.” See, e.g., Andrews v. LeClaire, 709 F. Supp. 2d 269, 271 (S.D.N.Y. 2010) (finding no clear error in Report and Recommendation, as to which no objections were filed, and adopting it in full); accord

Manbeck v. Micka, 640 F. Supp. 2d 351, 361 (S.D.N.Y. 2009). “Furthermore, if as here . . . the magistrate judge’s report states that failure to object will preclude appellate review and no objection is made within the allotted time, then the failure to object generally operates as a waiver of the right to appellate review. As long as adequate notice is provided, the rule also applies to pro se parties.” Hamilton v. Mount Sinai Hosp., 331 F. App’x 874, 875 (2d Cir. 2009) (internal citations omitted); see ECF No. 49 at 46 (“The failure to file timely objections shall result in a waiver of those objections for purposes of appeal.”). Il. DISCUSSION As no objections were filed, the Court has reviewed the Report for clear error. The Court finds that Judge Parker’s well-reasoned Report is not facially erroneous. Accordingly, the Court adopts the Report in its entirety and, for the reasons set forth therein, denies the Petition for a writ of habeas corpus and the Motion for summary judgment. The Court will not issue a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c); Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). Moreover, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). IV. CONCLUSION Accordingly, the Report is adopted in its entirety. The Clerk of Court is directed to dismiss the Petition, deny the Motion for summary judgment, mail a copy of this Order to Petitioner, and close this case. SO ORDERED. Dated: February 23, 2024 New York, New York \

nited States District Judge