United States District Court, N.D. New York
GARY L. SHARPE, Chief District Judge.
Petitioner pro se InJah Tafari commenced this habeas action pursuant to 28 U.S.C. § 2254, making a claim that his due process rights were violated in relation to the timing of a New York parole release decision. ( See generally Pet., Dkt. No. 1.) In a Report-Recommendation (R&R) dated July 17, 2013, Magistrate Judge Andrew T. Baxter recommended that Tafari's petition be denied and dismissed, and that he be denied a certificate of appealability. (Dkt. No. 11.) Pending is Tafari's objection to the R&R. (Dkt. No. 12.) For the reasons that follow, the R&R is adopted in its entirety.
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of the magistrate judge for clear error. See id.
Tafari objects to the R&R by relying upon 9 N.Y.C.R.R § 8002.3 "as controlling [a]uthority, " (Dkt. No. 12 at 3), and arguing that "even in the absence of a state-created liberty interest in parole release, there is an entitlement to a process of decision-making, which comports with the statutory guidelines of consideration to [all] relevant statutory factors, '" ( id. at 2 (quoting Graziano v. Pataki, No. 06 Civ. 0480, 2006 WL 2023082, at *7 (S.D.N.Y. July 17, 2006)). The cases cited by Tafari indicate that it is his position that the State's failure to comply with the twenty-four-month parole reconsideration requirement of 9 N.Y.C.R.R. § 8002.3(d) violated his right to due process. ( Id. ) While liberal construction of Tafari's objection implicates a specific attack on Judge Baxter's finding that his claim "presents a non-cognizable question of state law, " Tafari makes no objection to the R&R's recommendations that his petition be dismissed because it is procedurally barred and moot. (Dkt. No. 11 at 9-14.)
While Tafari's specific objection would ordinarily trigger de novo review, review for only clear error is warranted where, as here, the objection is irrelevant to the recommendation. See Davis v. Campbell, No. 3:13-CV-0693, 2014 WL 234722, at *2 (N.D.N.Y. Jan. 22, 2014); Brobston v. Schult, No. 9:10-cv-242, 2011 WL 5325778, at *1-2 (N.D.N.Y. Nov. 3, 2011). In other words, even if Tafari could persuade the court that his claim is cognizable under § 2254, his failure to interpose any objection to the other bases for Judge Baxter's recommendation of dismissal gives rise to review for clear error only. Having carefully reviewed the R&R for clear error and finding none, the court adopts it in its entirety.
Accordingly, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter's Report-Recommendation (Dkt. No. 11) is ADOPTED in its entirety; and it is further
ORDERED that Tafari's petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further
ORDERED that, because Tafari has failed to make a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue pursuant to 28 U.S.C § 2253(c); and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary ...