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Herrera v. United States

United States District Court, Second Circuit

June 25, 2013

CARLOS HERRERA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER

J. PAUL OETKEN, District Judge.

Petitioner Carlos Herrera, proceeding pro se, has filed a petition for a writ of habeas corpus. Pursuant to 28 U.S.C. § 2241, he seeks an order that would impose two requirements on the Bureau of Prisons: (1) to count the 15 months between the date of his federal arrest and the date of his federal sentence toward his total 292-month federal sentence, and (2) to calculate and grant him Good Conduct Time credit from the date of his federal arrest, forward. On May 9, 2013, Magistrate Judge Freeman issued a careful and thorough report and recommendation ("R&R") in which she concluded that the petition for a writ of habeas corpus must be denied. In the R&R, she notified Petitioner of his right to object and set a deadline of May 28, 2013.

A district court reviewing a magistrate judge's recommended ruling "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). Parties may raise objections, though under Federal Rule of Civil Procedure 72(b)(2) these objections must be "specific, " "written, " and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." See also 28 U.S.C. § 636(b)(1)(C). If a party submits an objection in a timely manner, the district court subjects the parts of the report and recommendation to which the party has objected to de novo review. 28 U.S.C. § 636(b)(1)(C). However, if a party does not lodge any objection, then the district court may adopt those portions of the recommended ruling that do not suffer from clear error. See, e.g., Brown v. LaValley, No. 10 Civ. 1756, 2013 WL 2154161, at *1 (E.D.N.Y. May 17, 2013). Thus, in many cases, "[w]here parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision." Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002); accord Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point."). Accordingly, the R&R is reviewed only for clear error.

Applying this standard, and after thorough review of the R&R, the Court concludes that Magistrate Judge Freeman did not commit clear error. The R&R is well-reasoned and supported by the factual record. The Court therefore adopts the R&R as its Order and Opinion.

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED and the Clerk of Court is directed to close this case.

SO ORDERED.


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