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Dei v. New York State Attorney General

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


November 30, 2007

RUEY DEI PETITIONER,
v.
NEW YORK STATE ATTORNEY GENERAL, RESPONDENT.

The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court

ORDER

This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). On June 2, 2004, petitioner, who is proceeding pro se, filed a petition for a writ of habeas corpus. On April 26, 2007, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that the petition for a writ of habeas corpus be dismissed because petitioner is no longer "in custody" on the challenged conviction.

Petitiioner filed objections to the Report and Recommendation on June 1, 2007.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, the petition for a writ of habeas corpus is dismissed.

The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and therefore denies his motion for a certificate of appealability. 28 U.S.C. § 2253 (c)(2 ).

The Courtcertifies, pursuant to 28 U.S.C. § 1915 (a)(3 ), that any appeal from this judgment would not be taken in good faith, and therefore denies leave to appeal in form apauperis. Further requests to proceed on appeal in form a pauperis must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.

20071130

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