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James Comfort v. Thomas Lavalley

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


April 2, 2012

JAMES COMFORT, PETITIONER,
v.
THOMAS LAVALLEY, RESPONDENT.

The opinion of the court was delivered by: Scullin, Senior Judge

ORDER

Petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 10, 2010. See Dkt. No. 1. Respondent filed an answer and a memorandum of law on November 24, 2010. See Dkt. No. 10. Petitioner filed a traverse on January 10, 2011. See Dkt. No. 16. On June 9, 2011, Magistrate Judge Baxter issued a Report-Recommendation in which he recommended that this Court deny and dismiss the petition and deny a Certificate of Appealability. See Dkt. No. 17 at 18. Plaintiff filed objections to those recommendations. See Dkt. No. 18.

"When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review." Trombley v. Oneill, No. 8:11-CV-0569, 2011 WL 5881781, *2 (N.D.N.Y. Nov. 23, 2011) (citing Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). "To be 'specific,' the objection must, with particularity, 'identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.'" Id. (quotation and footnote omitted). Where a party makes no objection, or only a general objection, to a portion of a magistrate judge's report-recommendation, the court reviews that portion for "clear error." See id. (citations omitted). After completing the appropriate review, "the Court may 'accept, reject, or modify, in whole or in part,'" the magistrate judge's findings and recommendations. Linares v. Mahunik, No. 9:05-CV-625, 2009 WL 3165660, *10 (N.D.N.Y. Sept. 29, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)).

The Court conducted a de novo review of Magistrate Judge Baxter's Report-Recommendation in light of Petitioner's objections. Having completed that review, the Court hereby

ORDERS that Magistrate Judge Baxter's June 9, 2011 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Petitioner's petition is DENIED and DISMISSED; and the Court further ORDERS that a Certificate of Appealability will not issue in this case because Petitioner has not "made a substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2); and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

20120402

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