United States District Court, S.D. New York
June 8, 2005.
JAMES PETTUS, Petitioner,
SUPERINTENDENT McGINNIS, Respondent.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
For the reasons set forth in the report and recommendation of
Magistrate Judge Peck, dated May 18, 2005, respondent's motion to
dismiss the petition without prejudice is granted. While
petitioner objects to the report and recommendation, claiming
that the issues raised in this habeas petition "are not raised on
direct appeal," it is not clear that they cannot be raised there,
it being undisputed that the direct appeal still is pending in
the Appellate Division. Petitioner's objections therefore are
overruled. A certificate of appealability is denied, and the
Court certifies that any appeal herefrom would not be taken in
good faith within the meaning of 28 U.S.C. § 1915(a)(3).
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