Perez v. McIntosh

• Court: District Court, S.D. New York
• Decided: February 5, 2024
• Docket: 1:21-cv-07339
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IVAN PEREZ, Petitioner, 21 Civ. 7339 (JHR) (GWG) -v.- ORDER ADOPTING REPORT AND RECOMMENDATION DONITA MCINTOSH, Superintendent, Clinton Correctional Facility, Defendant. JENNIFER H. REARDEN, District Judge: On August 31, 2021, pursuant to 28 U.S.C. § 2254, pro se Petitioner Ivan Perez filed a petition for a writ of habeas corpus (the “Petition”) in connection with his October 24, 2016 state-court convictions for first-degree manslaughter and gang assault.1 See ECF No. 2. On September 7, 2021, the Petition was referred to Magistrate Judge Gabriel W. Gorenstein for a Report and Recommendation. See ECF No. 7. On September 14, 2022, Judge Gorenstein issued a Report and Recommendation (the “Report”) recommending that the Court deny the Petition in its entirety. See ECF No. 17. On October 4, 2022, the judge previously assigned to this case granted Petitioner’s request for a sixty-day extension of time to file objections to the Report, setting December 5, 2022 as the new deadline.2 See ECF No. 19. No objections were filed. For the reasons stated below, the Court adopts the Report in full. 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

1 Familiarity with the facts, which are set forth in detail in the Report and Recommendation, is assumed. See ECF No. 17. 2 This case was initially assigned to the Honorable Edgardo Ramos. 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. 17 at 18. As no objections were filed here, the Court has reviewed the Report for clear error. The Court finds that Judge Gorenstein’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. 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). Accordingly, the Report is adopted in its entirety. The Clerk of Court is directed to dismiss the Petition, mail a copy of this Order to Petitioner, and close this case. SO ORDERED. Dated: February 5, 2024 New York, New York Mu orh Koarden JENNIFER H. REARDEN 2 United States District Judge