Davis v. United States

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- X : ANTHONY DAVIS, : : Petitioner, : 18-CV-8219 (JMF) (BCM) : -v- : ORDER ADOPTING : REPORT AND UNITED STATES OF AMERICA, : RECOMMENDATION : Respondent. : : ----------------------------------------------------------------------- X JESSE M. FURMAN, United States District Judge:

This petition for a writ of habeas corpus was referred to Magistrate Judge Moses for a Report and Recommendation. See ECF No. 2. In the Report and Recommendation filed on July 12, 2021, Magistrate Judge Moses recommended that the petition be denied. See Davis v. United States, No. 18-CV-8219 (JMF) (BCM), 2021 U.S. Dist. LEXIS 130722 (S.D.N.Y. July 12, 2021) (ECF No. 7). 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). To accept those portions of the report to which no timely objection has been made, however, a district court need only satisfy itself that there is no clear error on the face of the record. See, e.g., Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). This clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. See, e.g., Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008). In the present case, the Report and Recommendation advised the parties that they had fourteen days from service of the Report and Recommendation to file any objections and warned that failure to timely file such objections would result in waiver of any right to object. See ECF No. 7, at 19. In addition, the Report and Recommendation expressly called Petitioner’s attention to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Nevertheless, as of the date of this Order, no objections have been filed and no request for an extension of time to object has been made. Accordingly, Petitioner has waived the right to object to the Report and Recommendation or to obtain appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); see also Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008). Despite the waiver, the Court has reviewed the petition and the Report and Recommendation, unguided by objections, and finds the Report and Recommendation to be well reasoned and grounded in fact and law. Accordingly, the Report and Recommendation is ADOPTED in its entirety. Petitioner has not made a substantial showing of the denial of a constitutional right and, accordingly, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); see also, e.g., Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). In addition, this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to close the case and to mail a copy of this Order to Petitioner. SO ORDERED. Dated: August 5, 2021 New York, New York ESSE M-PURMAN nited States District Judge