Farmer v. Colvin ( 2021 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TYRONE FARMER, ORDER ADOPTING REPORT Petitioner, AND RECOMMENDATION -against- 17-CV-01091 (PMH) JOHN COLVIN, Respondent. PHILIP M. HALPERN, United States District Judge: On June 13, 2013, Tyrone Farmer (“Petitioner”) was convicted—following a guilty plea in the New York State Supreme Court, Westchester County—of: (1) Burglary in the Second Degree; (2) Criminal Mischief in the Fourth Degree; (3) Criminal Possession of Stolen Property in the Fifth Degree; and (4) Petit Larceny. (Doc. 2 at 1). Petitioner was thereafter sentenced to a term of ten years’ incarceration followed by five years’ post-release supervision. (Doc. 53 at 9-10). On February 10, 2017, Petitioner initiated the instant action—a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254—to challenge both the above-referenced conviction and sentence. (Doc. 2). On March 28, 2017, Judge Kenneth M. Karas—before whom this matter proceeded before it was reassigned to this Court on April 16, 2020—issued an Order of Reference referring the Petition to Chief Magistrate Judge Paul E. Davison. (See Doc. 9). On August 30, 2021, Chief Magistrate Judge Davison issued a Report and Recommendation (“R&R”) recommending that the Petition be denied. (Doc. 55). The R&R advised, in pertinent part, as follows: Pursuant to 28 U.S.C. § 636(b)(1)(C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. (id. at 37). Chief Magistrate Judge Davison warned further that “[fJailure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.” (/d. at 38). More than a month has passed since a copy of the R&R was mailed to Petitioner, and no objections have been filed.! “A district court reviewing a magistrate judge’s report and recommendation ‘may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.’” Antoine v. Warden, No. 20-CV-05130, 2021 WL 4066654, at *1 (S.D.N.Y. Sept. 7, 2021) (quoting 28 U.S.C. § 636(b)(1)). “The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record.” Olivo v. Graham, No. 15-CV-09938, 2021 WL 3271833, at *1 (S.D.N.Y. July 30, 2021) (citing Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)). Upon a careful and complete review of the R&R, the Court finds no clear error in Chief Magistrate Judge Davison’s thorough and well-reasoned analysis, and adopts the R&R in its entirety for the reasons set forth therein. Consequently, the Petition is DENIED. The Clerk of the Court is respectfully directed to mail a copy of this Order to Petitioner and close this case. SO ORDERED: Dated: White Plains, New York October 4, 2021 ( y PHILIP M. HALPERN United States District Judge ' The R&R was mailed to Petitioner on August 30, 2021. (Doc. 55 at 1). This mailing—sent to the address Petitioner provided to the Court—was returned to the Court on or about September 15, 2021 “for the following reason(s): Not Here, Return to Sender, Unable to Forward.” (Sept. 15, 2021 Entry). It was Petitioner’s obligation to provide the Court with an address for mail service. See Fed. R. Civ. P. (a).