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Pitt v. Rabiduea

United States District Court, Second Circuit

August 16, 2013

MATTHEW PITT, Petitioner,
v.
R. RABIDUEA, Respondent.

MATTHEW PITT, Pro Se Mohawk Correctional Facility Rome, New York, for the petitioner.

PAUL M. TARR, ESQ., HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York New York, New York, for the respondent.

ORDER

GARY L. SHARPE, Chief District Judge.

The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge Randolph F. Treece, duly filed July 19, 2013. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.

No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby

ORDERED, that the Report-Recommendation of Magistrate Judge Randolph F. Treece filed July 19, 2013 (Dkt. No. 21) is ACCEPTED in its entirety for the reasons state therein; and it is further

ORDERED, that the Petition (Dkt. No. 1) is DENIED in its entirety; and it is further

ORDERED, that because the Court finds the Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability should be issued with respect to any of Petitioner's claims. See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York state Div. of Parole , 209 F.3d 107, 112 (2d Cir. 2000), cert. denied 531 U.S. 873 (2000); and it is further

ORDERED, that the Clerk of the Court is to mail copies of the Order to the parties in accordance with the court's local rules.

IT IS SO ORDERED.

REPORT-RECOMMENDATION and ORDER

Pro se Petitioner Matthew Pitt brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging, on due process grounds, the validity of a superintendent's hearing decision sentencing him to two years confinement in a special housing unit ("SHU") and recommending the loss of eighteen months of good time credit. Dkt. No. 1, Pet. However, because the Petition was not filed within the statutory limitation period prescribed by 28 U.S.C. § 2244(d)(1)(D), we recommend that the Petition be DENIED.

I. BACKGROUND

On April 6, 2007, Petitioner, while an inmate at Marcy Correctional Facility ("MCF"), was charged in a misbehavior report with having violated prison rules 121.11, for the making of third-party phone calls, 121.12, for failing to follow MCF's telephone program rules, and 180.11 for violating MCF's correspondence regulations. State Ct. R. (hereinafter "R"), Dkt. Nos. 12-1, Ex. A, Inmate Misbehavior Report, dated Apr. 6, 2007, & 12-3, Ex. C, Portions of Pet'r's Tier III Disciplinary Hr'g Tr. (hereinafter "Hr'g Tr."), dated Apr. 11 & Apr. 24, at pp. 6-7. Subsequently, at a superintendent's hearing, Petitioner was found guilty of all three charges and received, inter alia, ...


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