Grant v. Gonyea

Opinion

USDCSDN¥Y ts DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK pate Fitep: 04/20/22

Thomas Grant, Petitioner 19-CV-743 (AJN) (DCF) —Vy— ORDER ADOPTING Paul M. Gonyea, REPORT AND RECOMMENDATION Respondent.

ALISON J. NATHAN, Circuit Judge, sitting by designation: Before the Court is Judge Freeman’s Report & Recommendation recommending that the Court deny pro se Petitioner’s petition for habeas corpus under 28 U.S.C. § 2254. Dkt. No. 27. When considering the findings and recommendations of a Magistrate Judge, the Court may “accept, reject, or modify [them], in whole or in part.” 28 U.S.C. § 636(b)(1). “The Court must make a de novo determination of any portions of a magistrate’s report or findings to which a party raises an objection, and reviews only for clear error on the face of the record when there are no timely objections to the R[eport] & R[ecommendation].” Banks v. Comm’r of Soc. Sec., No. 19-CV-929 (AJN) (SDA), 2020 WL 2765686, at *1 (S.D.N.Y. May 27, 2020) (internal quotation marks omitted); see also Brennan v. Colvin, No. 13-CV-6338 (AJN) (RLE), 2015 WL 1402204, at *1 (S.D.N.Y. Mar. 25, 2015); Hicks v. Ercole, No. 09-CV-2531 (AJN) (MHD), 2015 WL 1266800, at *1 (S.D.N.Y. Mar. 18, 2015); Gomez v. Brown, 655 F. Supp. 2d 332, 341 (S.D.N.Y. 2009). Clear error is found only when, upon review of the entire record, the Court is left with “the definite and firm conviction that a mistake has been committed.” Laster v.

Mancini, No. 07-CV-8265 (DAB) (MHD), 2013 WL 5405468, at *2 (S.D.N.Y. Sept. 25, 2013) (quoting United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)). As of this date, no objections to the Report & Recommendation have been filed, and the deadline for objections has passed. See Dkt. No. 27 at 35-36. The Court thus reviews the Report & Recommendation for clear error. It finds none. Thus, the Court adopts the Report & Recommendation in its entirety and dismisses Petitioner’s § 2254 petition for the reasons provided in Judge Freeman’s Report and Recommendation. Because Petitioner “has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue.” Perez v. United States, No. 04-CV-7148 (JSR), 2007 WL 685949, at *1 (S.D.N. Y Jan. 29, 2007) (citing 28 U.S.C. § 2253). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is respectfully directed to close this case and to mail a copy of this Order to Petitioner at the address reflected on the Docket and shown below: Mr. Thomas Grant 16A4226 Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, NY 12788 SO ORDERED. Dated: April 20, 2022 b din New York, New York

ALISON J. NATHAN United States Circuit Judge, sitting by designation