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Jenkins v. E. Stallone

United States District Court, Northern District of New York

April 17, 2015

DAVID A. JENKINS, Petitioner,
v.
E. STALLONE, Respondent.

David A. Jenkins, Pro Se

Hon. Eric T. Schneiderman New York State Attorney General Thomas B. Litsky, Esq., Assistant Attorney General For Respondent

ORDER

Hon. Brenda K. Sannes, United States District Court Judge

Petitioner David A. Jenkins, a former New York State inmate, commenced this proceeding pursuant to 28 U.S.C. § 2254 challenging the imposition of a five-year term of post-release supervision. Dkt. No. 7, p. 3. On March 11, 2015, United States Magistrate Judge David E. Peebles issued a Report and Recommendation, recommending that the petition be denied and dismissed in all respects. Dkt. No. 19, p. 17. Magistrate Judge Peebles advised the parties that:

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

Dkt. No. 19, p. 18. A copy of the Report and Recommendation was mailed to Jenkins’ last known address via certified mail. Dkt. No. 19. Jenkins’ copy of the Report and Recommendation was returned to the Court marked “Not deliverable as addressed – unable to forward” and “don’t live there.” Dkt. No. 20.

In a Decision and Order entered on April 2, 2015, the Court reminded Jenkins of his obligation to notify the Court of any change in address, see Local Rule 10.1(c)(2), and provided Jenkins an additional fourteen days to file his current address and any objections to the Report and Recommendation. Dkt. No. 21, pp. 2-3. The Court advised Jenkins that if he failed to comply with the Decision and Order, the Court would “consider the Report and Recommendation as unopposed and review for clear error only.” Dkt. No. 21, p. 4. The Decision and Order was served on Jenkins via regular mail at the address he most recently provided. See Dkt. No. 17 (notice of change of address). Although the Decision and Order (Dkt. No. 21) was not returned as undeliverable, Jenkins has not, to date, filed a change of address or any objections to the Report and Recommendation.

Accordingly, as no objections to the Report-Recommendation have been filed and the time for filing objections has expired, the Court reviews the Report and Recommendation for clear error. See Glaspie v. N.Y.C. Dep’t of Corr., No. 10 CV 00188(GBD)(JCF), 2010 WL 4967844, at *1, 2010 U.S. Dist. LEXIS 131629, at *2-3 (S.D.N.Y. Nov. 30, 2010) (explaining that when no objections to report and recommendation are made, “the Court may adopt [it] if there is ‘no clear error on the face of the record.’”) (quoting Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005)). Having reviewed the Report and Recommendation in its entirety and having found no clear error, it is hereby:

ORDERED that the Report-Recommendation (Dkt. No. 19) is ADOPTED in its entirety for the reasons stated therein; and it is further

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

ORDERED that no certificate of appealability shall issue with respect to either of the claims set forth in the petition; and it is further

ORDERED that the Clerk shall close this case; and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Order as well as the Report and Recommendation (Dkt. No. 19) upon all ...


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