Opinion
9:17-cv-1299 (MAD/TWD)
03-03-2021
CHARLES GREFER, Petitioner, v. LARRY FRANK, Respondent.
APPEARANCES: CHARLES GREFER Petitioner, pro se HON. LETITIA JAMES Attorney General for the State of New York Counsel for Respondent 28 Liberty Street New York, New York 10005 Matthew B. Keller, Esq. Assistant Attorney General
| APPEARANCES: | OF COUNSEL: |
| CHARLES GREFERPetitioner, pro se | |
|---|---|
| HON. LETITIA JAMESAttorney General for the State of New YorkCounsel for Respondent28 Liberty StreetNew York, New York 10005 | Matthew B. Keller, Esq.Assistant Attorney General |
I. INTRODUCTION
This matter has been referred for a Report-Recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District Local Rule 72.3(c), by the Honorable Mae A. D'Agostino, United States District Judge. Petitioner Charles Grefer ("Grefer" or "Petitioner"), formerly incarcerated at Ogdensburg Correctional Facility ("Ogdensburg C.F."), has filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the revocation of his parole and re-incarceration for a term of 15 months, following a hearing before an administrative law judge. (Dkt. No. 1.) Respondent Larry Frank, Superintendent of Ogdensburg C.F. ("Respondent"), sought and received permission to limit his Answer to the issue of exhaustion. (Dkt. Nos. 17, 18.) Respondent timely filed an Answer in Response to the Petition and Memorandum of Law. (Dkt. Nos. 20, 21; see also Dkt. No. 22.) Petitioner filed a Reply and an Addendum Reply. (Dkt. Nos. 23, 24.) For reasons explained below, the Court recommends that the Petition be denied and dismissed.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
According to the state court records submitted with the Petition, in January 2014, Grefer was convicted in Onondaga County Court, upon his guilty plea, of second-degree Grand Larceny and third-degree Criminal Tax Fraud, and sentenced to concurrent prison terms of 3 1/3 to 10 years and 2 1/3 to 7 years, respectively. (Dkt. No. 1-1 at 28-29, 51-52.) On January 23, 2014, Grefer (DIN 14B0204) was received into the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Id. at 29. On Septmeber 6, 2016, Grefer was released to parole supervision. Id.
In December 2016, Petitioner was charged with several violations of his parole conditions in connection with a domestic dispute, including that he drove to Syracuse without permission, consumed alcohol with an ex-girlfriend and, after an argument, "grabbed her by the neck and shirt collar." Id. at 71-76. When police arrived at the scene, they learned Grefer was also driving without a valid license. Id.
On December 19, 2016, Grefer received a notice of violation of the terms of his parole, and, on the same date, he requested a hearing. (Dkt. No. 1 at 1-2.) Following a two-day evidentiary hearing, held on February 8, 2017, and March 1, 2017, the presiding administrative law judge sustained all of the charges, revoked parole, and imposed a 15-month sentence. Specifically, the ALJ found Petitioner violated the following terms of his release to parole, including that he (1) purchased alcohol; (2) consumed alcohol; (3) threatened the safety and well-being of another by aggressively grabbing her by the neck; (4) left his residence at an unapproved time; (5) operated a vehicle without a valid driver's license; (6) operated a vehicle with a suspended driver's license; and (7) traveled outside of Monroe County without permission from his parole officer. (Dkt. No. 1 at 1-2.) The ALJ found Grefer's "actions amounted to category one behavior because he violated his parole in an important respect," and, as noted, sentenced Petitioner to a determinate term of 15 months incarceration. Id. at 2; see also Dkt. No. 1-1 at 77-80.
Petitioner's appeal to the Board of Parole Appeals Unit was initially rejected as untimely but later reinstated. (Dkt. Nos. 1 at 3, 1-1 at 81-85.) In June 2017, while his administrative appeal was pending, Petitioner filed a state petition for habeas corpus. (Dkt. No. 1-1 at 110-21.) The People responded and, on October 20, 2017, the St. Lawrence County Supreme Court dismissed the petition. Id. at 41, 27-31. The court found Grefer had not exhausted administrative remedies and that, in any event, state habeas relief was not available because the maximum expiration of Petitioner's sentence would not occur until 2023. Id.
On or about November 10, 2017, Petitioner sought leave to appeal the denial of state habeas relief from the Appellate Division, Third Department. (Dkt. No. 1 at 3, 10; see also Dkt. No. 17.) Approximately two weeks later, while still pursuing his administrative appeal, which was "currently being perfected" by assigned counsel, and with the application pending before the Appellate Division, Petitioner commenced the instant federal habeas action challenging the revocation of his parole and re-incarceration. (Dkt. No. 1 at 1-2.)
In his Petition, Grefer argues that he is entitled to federal habeas relief on the following grounds: (1) his due process rights under the Fourteenth Amendment and New York Executive Law § 259-i were violated because (a) the violations were based "on unverified facts" that were not established by a preponderance of evidence, and (b) witnesses were permitted to "present adverse (false) information without witness notification"; (2) his constitutional right to confront adverse witnesses was violated; (3) the officer who stopped his vehicle and arrested him for operating a vehicle without a valid driver's license lacked probable cause to execute the stop; (4) the parole revocation specialist failed to properly investigate the charges and did not fulfill his duties under Executive Law § 259-i; (5) the ALJ "violate[d] his duty as a neutral hearing body" by "answering questions on behalf of witnesses" at the revocation hearing and "disallowing" his counsel from providing "a closing"; (6) the ALJ erred in not striking the accusatory instrument because it was not signed; and (7) the evidence was insufficient to sentence him as either a category one parolee or a category three parolee. Id. at 4-9.
As he acknowledges, Grefer filed his federal habeas Petition "prior to exhausting all state remedies in the interest of justice[.]" Id. at 4. According to Petitioner, because he "will be released in less than four months," the requirement that he exhaust his state court remedies would "frustrate" his "constitutional rights" and "[c]reate a fundamental miscarriage of justice." Id. at 3, 4, 10.
On December 14, 2017, the Court directed Respondent to file an Answer to the Petition. (Dkt. No. 8.) Thereafter, on January 3, 2018, Petitioner filed a motion requesting a "stay" of the sentence he was already serving on his parole revocation at Ogdensburg C.F., as well as an "expedited proceeding" in this action. (Dkt. No. 10.) Generally, Petitioner argued that the briefing schedule in this case would "effectively render any decision from this Court moot" and "frustrate [his] rights" because he would have completed the sentence related to the parole revocation on or about March 15, 2018. Id. By Order filed January 11, 2018, the Court denied both requests. (Dkt. No. 11.)
On January 22, 2018, Petitioner filed a letter advising the Court that he was to be released on parole on March 15, 2018. (Dkt. No. 12.) He also filed a motion for reconsideration of the Court's January 11, 2018, Order. (Dkt. No. 13.)
By Decision and Order filed January 20, 2018, the Court granted Petitioner's motion for reconsideration of the January 11, 2018, Order and, upon reconsideration, denied Petitioner's motion to expediate this proceeding and for bail or release pending a determination on his federal habeas Petition. (Dkt. No. 16.)
On February 7, 2018, the Court granted Respondent's motion to limit the Answer to "whether petitioner has exhausted his remedies." (Dkt. Nos. 17, 18.) The Court directed Respondent to address whether there is an absence of available State corrective process or circumstances that render that state corrective process ineffective to protect Petitioner's rights. (Dkt. No. 18.) Respondent was directed to file the Answer on or before March 14, 2018. Id.
Petitioner thereafter filed a motion for a default judgment. (Dkt. No. 19.) Respondent filed his Answer and Memorandum of Law on March 9, 2018. (Dkt. No. 20, 21.)
On March 12, 2018, the Court issued the following Order:
Respondent timely filed his answer and memorandum of law in response to petitioner's habeas petition (Dkt. Nos. 20, 21) on March 9, 2018, as required by the Court's February 7, 2018, Text Order (Dkt. No. 18). Petitioner's [(Dkt. No. 19)] motion for a default judgment is denied. However petitioner may file a reply to the arguments raised in respondent's memorandum of law, not to exceed twenty (20) pages in length, excluding any exhibits. Petitioner's reply is due on or before April 9, 2018.(Dkt. No. 22.)
Petitioner's Reply, dated March 13, 2018, was received for filing on March 16, 2018. (Dkt. No. 23.)
The March 12, 2018, Order likely crossed in the mail with Petitioner's Reply, dated March 13, 2018. Petitioner states he received a copy of the March 12, 2018, Order, on March 14, 2018. (Dkt. No. 24 at 10.)
On April 2, 2018, Petitioner filed an Addendum Reply. (Dkt. No. 24.) In that submission, inter alia, Plaintiff provided an updated address indicating he was no longer in custody of DOCCS. (Dkt. No. 24.) The Clerk confirmed Petitioner was released to parole on March 15, 2018, and updated the docket accordingly. (See Docket Report.)
III. DISCUSSION
Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies or establish either an absence of available state remedies or that such remedies cannot adequately protect his rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
This exhaustion requirement is satisfied if the federal claim has been "'fairly present[ed]'" to the state court. Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (explaining that a petitioner seeking federal habeas relief must raise all claims in state court prior to raising them in the habeas corpus petition, and he must "fairly present" each federal claim in the appropriate state court, "thereby alerting that court to the federal nature of the claim"). A claim has been "fairly presented" if the state court was apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191. Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. at 192.
"A petitioner seeking habeas review of his parole revocation is subject to the exhaustion doctrine." Lebron v. Annucci, 9:15-CV-0829 (GLS), 2016 WL 1312564, at *2 (N.D.N.Y. Apr. 4, 2016) (citing Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2003) and McQueen v. Superintendent, Franklin Corr. Facility, No. 9:15-CV-77 (JKS), 2015 W L 6449138, at *4 (N.D.N.Y. Oct. 23, 2015) ("Like petitions challenging criminal convictions, habeas petitions addressing parole revocations are subject to the aforementioned exhaustion requirements.")).
"The typical path for exhausting a claim concerning a petitioner's parole revocation proceeding includes both completion of the internal, administrative appeal process within the Division of Parole and, in the event of an adverse determination, commencement of a C.P.L.R. Article 78 proceeding." Smith v. Smith, No. 9:17-CV-0258 (DNH), 2018 WL 557877, at *4 (N.D.N.Y. Jan. 22, 2019) (quoting McCullough v. New York State Div. of Parole, No. 9:11-CV-1112 (DNH), 2015 WL 2340784, at *4 (N.D.N.Y. Apr. 15, 2015)). If the Article 78 petition is denied, the petitioner must then appeal that denial to the "highest state court capable of reviewing it. " Scales v. New York State Div. of Parole, 396 F. Supp. 2d 423, 428 (S.D.N.Y. 2005) (quoting Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003)). As an alternative to an Article 78 proceeding, a petitioner may also exhaust by filing a state habeas corpus proceeding pursuant to C.P.L.R. Article 70. Lebron, 2016 WL 1312564, at *2. Whichever state court vehicle the petitioner chooses, he must appeal a denial to the highest state court capable of reviewing it before he will be deemed to have exhausted his claims. Id.
Here, Petitioner's claims are plainly unexhausted. The record reflects Petitioner has not given the state courts a complete opportunity to consider any of the claims in the Petition. As discussed above, Petitioner was actively litigating parallel actions in this Court and in the Appellate Division, in addition to "perfecting" his administrative appeal with DOCCS' Division of Parole Appeals Unit. (See also Dkt. No. 17, attaching copies of Petitioner's state court Notice of Appeal, dated November 10, 2017, and Petitioner's then-most recent filing in that action - a motion for a stay and expedited consideration of the appeal, dated January 22, 2018).
The Court further notes that inasmuch as correspondence from Grefer indicates he was released from the challenged reincarceration arising from the 2017 parole revocation hearing (Dkt. No. 24), this Petition may also be moot. See Spencer v. Kemna, 523 U.S. 1, 7-14 (1998) (holding that while "[a]n incarcerated . . . parolee's challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because . . . the incarceration . . . constitutes a concrete injury," where the substance of the suit is parole revocation and the resulting "reincarceration that . . . [occurred] as a result of that action is now over, and cannot be undone," the petitioner is required to demonstrate "collateral consequences adequate to meet Article III's injury-in-fact requirement [which] resulted from petitioner's parole revocation," in order for the petition to survive); see also Ariola v. LaClair, No. 9:08-cv-116 (GLS/RFT), 2014 WL 4966748, at *9 (N.D.N.Y. Sept. 30, 2014) (noting "that a prisoner challenging a parole revocation hearing is, at most, entitled to a rehearing, and so, a prisoner who has already served his sentence or who has been released ordinarily would not obtain any legal benefit from a determination that the parole revocation hearing was wrongly decided") (citing Lebron v. Graham, No. 09-CV-1021 (GLS), 2010 WL 2771878, at *3 (N.D.N.Y. July 12, 2010)); see also Fells v. Breslin, No. 04-CV-03849 (ADS)(JO), 2007 WL 675081, at *3 (E.D.N.Y. Feb. 26, 2007) (noting courts in this Circuit "have dismissed habeas petitions which challenged parole revocation because the petitioner was no longer in prison"). Here, Grefer does not appear to have raised any injuries or collateral consequences which would allow his present Petition to continue under Spencer. See,e.g., Smith, 2018 WL 557877, at *4 (noting the petitioner's claims challenging a parole revocation were likely mooted by his release but also determining "engaging in such an analysis [was] fruitless because petitioner's claims were not properly exhausted and, even when deemed exhausted, [were] procedurally defaulted").
In sum, the Court agrees with Respondent that Petitioner filed his federal habeas Petition prematurely. (Dkt. No. 20 at 6-8.)
As set forth in Respondent's Memorandum of Law, Petitioner has not alleged, much less proven, circumstances which would excuse him from the exhaustion requirement. (Dkt. No. 20 at 8-11.) At the time Petitioner commenced this action, he had state court remedies available to him, and was, in fact, in the process of exhausting those remedies. (Dkt. No. 1 at 1-2; see also Dkt. No. 20 at 8-20.)
To the extent Petitioner asserts administrative remedies were unavailable at the time he commenced this action because he "will be released in less than four months," this argument fails because Grefer had available options and was, in fact, simultaneously pursuing them in state court. See 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented."). Courts in this Circuit have dismissed petitions for failure to exhaust state court remedies, even when the sentence imposed may be completed before the exhaustion process is complete. See Mothersell v. Hanna, No. 9:17-CV-0771 (GTS/DEP), 2017 WL 4444040, at *2-3 (N.D.N.Y. Oct. 4, 2017) (rejecting petitioner's argument that he was not required to exhaust his state court remedies because he may have completed his sentence before doing so; explaining that such a circumstance "do[es] not render exhaustion . . . futile" under 28 U.S.C. § 2254(b)(1)(B)); see also Jumpp v. Cournoyer, No. 3:15-CV-0892, 2016 WL 3647146, at *4 (D. Conn. June 30, 2016) ("Even if [petitioner's] claims do become moot, neither the State's inherent adjudication process or its processing of this particular case is at fault.").
Accordingly, while he did not avail fully himself of the avenues of relief, the Court finds the appropriate state remedies, at the time he commenced this action, were in fact available to Petitioner. See Smith, 2018 WL 557877, at *6 (finding state remedies available even though the petitioner did not avail himself of those avenues of relief).
As to whether "circumstances exist that render such process ineffective to protect the rights of the applicant," the Court agrees with Respondent and the reasoning set forth in his Memorandum of Law, that at the time this narrow exception was fully briefed, almost three years ago, Petitioner had a viable avenue by which to exhaust his claims in state court, and, thereafter, return to federal court if necessary. (Dkt. No. 20 at 8-11.) See Nordahl v. Riveria, No. 08 Civ. 5565, 2010 WL 9444862, at *2 (S.D.N.Y. Apr. 7, 2010) (explaining that if the petitioner "can present an appropriate claim to the state court, the state court is in an equal position with the federal court to grant a remedy").
Additionally, to the extent Petitioner asserted that his release from the challenged re-incarceration before the state court reached a decision, therefore rendering the state corrective process ineffective, the Court agrees with Respondent that any ineffectiveness was caused by the length of Petitioner's relatively short sentence of 15-months reincarceration, which does not amount to futility. (Dkt. No. 20 at 8-11). See Nordahl, 2010 WL 9444862, at *2 (noting potential state court remedy is not futile, merely because the conclusion of the petitioner's sentence of incarceration may arrive before consideration of his petition in federal court is complete); see also Jordan v. Bailey, 985 F. Supp. 2d 431, 437 (S.D.N.Y. 2013) (explaining that futility is present only "when there is a 'complete absence of a mechanism for correction of the alleged unconstitutional violation' or the petitioner is 'precluded by an unconscionable breakdown from using the process that exists"'), aff'd, 570 F. App'x 42 (2d Cir. 2014) (summary order) (quoting Francis S. v. Stone, 995 F. Supp. 368, 380 (S.D.N.Y. 1998)). Nor, as pointed out by Respondent, has Petitioner demonstrated a "substantial delay in the state criminal appeal process" or a constitutional right "plainly and grossly violated," sufficient to excuse the exhaustion requirement. (See Dkt. No. 20 at 8-9.)
Based on the foregoing, the Court finds Petitioner has not even alleged, much less proven, circumstances which would excuse him from the exhaustion requirement. Moreover, to the extent Petitioner seeks "a stay of decision and order until a time when the Appellate Division of The NYS Supreme Court has completed review and rendered a decision as the state remedy of an Administrative Appeals has been exhausted as of Feb. 8, 2018 in the interest of economy of judicial resources and action" (Dkt. No. 24 at 1), "there is no basis to retain jurisdiction over a petition that contains only unexhausted claims." Pantoja v. N.Y. State Div. & Bd. of Parole, No. 11 Civ. 9809 (CS)(PED), 2013 WL 866869, at *6 (S.D.N.Y. Jan. 10, 2013) (quoting Shomo v. Maher, No. 04 Civ. 4194 (KMK), 2005 WL 743156, at *7 n.12 (S.D.N.Y. Mar. 31, 2005)).
Accordingly, the Petition is unexhausted and the Section 2254(b)(1)(B) exceptions do not apply. Thus, dismissing the Petition without prejudice, the relief requested by Respondent, is warranted. Nevertheless, at this juncture, Petitioner's claims are also procedurally defaulted because Petitioner now has no avenue by which to exhaust them in state court due to the passage of time. See, e.g., Morgan v. Fillion, 98 Civ. 986, 2000 WL 235986, at *5 (S.D.N.Y. Jan. 31, 2000) ("Although it is apparent that petitioner has not exhausted in the state courts all the claims he presents herein, it is also apparent that the state would no longer entertain such claims because petitioner failed to present them properly when he had the opportunity.").
On the present record, Petitioner has not alleged and the record does not suggest that Petitioner instituted an Article 78 proceeding after the Board of Parole Appeals dismissed the administrative appeal in February 2018, and given such actions must be brought within four months of the conclusion of the administrative hearings, that time has likely long since expired. See N.Y. C.P.L.R. § 217. Further, "[u]nder New York law, petitioner must appeal an adverse Article 78 determination within thirty days after being served with a copy of the judgment." Scales, 396 F. Supp. 2d at 428; see also Santiago v. Unger, No. 1:12-CV-133, 2013 WL 227757, at *8 (W.D.N.Y. Jan. 22, 2013) (explaining that the first step after the denial of an Article 78 petition is to "then appeal the denial to New York's intermediate appellate court, the Appellate Division."). Moreover, as noted, the status of Petitioner's appeal to the Third Department is also unclear.
Although Petitioner has periodically corresponded with the Court (see Dkt. Nos. 27-30), he has not provided an update as to the status of his appeal to the Third Department nor indicated whether he timely commenced an Article 78 proceeding, and whether he appealed any such denial to the highest state court capable of reviewing it. (See Dkt. No. 20 at 6-7.)
"[W]hen a 'petitioner fail[s] to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' the federal habeas court should consider the claim to be procedurally defaulted." Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). Unexhausted claims may be deemed exhausted if "it is clear that the unexhausted claim is procedurally barred by state law," rendering presentation of the claim in state court "futile." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)).
Although Respondent has argued lack of exhaustion, he has not claimed that Grefer is procedurally barred. (See Dkt. Nos. 20, 21.) However, the Court has no information from Grefer regarding the status of his state claims. (See Docket Report.) While a district court may raise failure to exhaust and procedural default sua sponte, the Second Circuit has held that before dismissing on procedural grounds on its own initiative, the court must afford the petitioner notice and an opportunity to be heard. Acosta v. Artuz, 221 F.3d 117, 124-26 (2d Cir. 2000). Courts have found raising these arguments in a timely filed objection to a report-recommendation provides such adequate notice and an opportunity to be heard. See Garner v. Superintendent of Upstate Correctional Facility, No. 9:01-CV-0501 (LEK/DEP), 2007 WL 2846907, at *13 n.8 (N.D.N.Y. Sept. 26, 2007).
Procedurally defaulted claims are not subject to habeas review unless a petitioner shows cause for the default and actual resulting prejudice, or that the denial of habeas relief would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536-39 (2006); Schlup v. Delo, 513 U.S. 298, 327 (1995). To establish cause, a petitioner must demonstrate that some objective external factor impeded his ability to comply with the procedural rule at issue. Maples v. Thomas, 565 U.S. 266 (2012); Coleman, 501 U.S. at 753; accord Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) ("A factor is external to the defense if it 'cannot fairly be attributed to' the prisoner.") (quoting Coleman, 501 U.S. at 753). On the present record, cause is not demonstrated. If a petitioner fails to establish cause, a court need not decide whether he suffered actual prejudice. Murray v. Carrier, 477 U.S. 478, 496 (1986); Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985). "Prejudice" requires a petitioner to demonstrate that the alleged constitutional error worked to his "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982).
The second exception is extremely narrow and is "concerned with actual as compared to legal innocence." Sawyer v. Whitley, 505 U.S. 333, 339 (1992); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) ("[A]ctual innocence means factual innocence, not mere legal insufficiency."). Therefore, to meet this standard, a petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). Here, however, although Grefer claims to be an "unjustly incarcerated innocent petitioner," Petitioner is not challenging his underlying conviction, but rather revocation of parole and, in any event, is no longer incarcerated. (Dkt. No. 1; see also Dkt. No. 24 at 1, 11.)
Accordingly, for reasons discussed above, while Petitioner's claims are admittedly unexhausted, when deemed exhausted they are procedurally defaulted from habeas review and, therefore, the Court recommends denying and dismissing the Petition on this procedural basis.
WHEREFORE, it is hereby
RECOMMENDED that the Petition for a writ of habeas corpus (Dkt. No. 1) be DENIED AND DISMISSED; and it is further
RECOMMENDED that no certificate of appealability should be issued with respect to any of the claims set forth in the Petition as Petitioner has not made "a substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2); and it is further
ORDERED that the Clerk provide Petitioner a copy of this Report-Recommendation and Order, along with copies of unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: March 3, 2021
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge