Summary
holding that because “section 440.30 applies, by its own terms, only when a trial court denies a motion to vacate ‘[u]pon considering the merits,’ ... a denial pursuant to CPL § 440.30 is a decision on the merits”
Summary of this case from Hirsh v. McArdleOpinion
9:03-CV-568 (LEK/RFT).
July 27, 2007
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on June 22, 2007 by the Honorable Randolph F. Treece, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 64). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including the objections by Petitioner, which were filed on July 17, 2007. Objections (Dkt. No. 66).
It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein.
Accordingly, it is hereby
ORDERED, that the Report-Recommendation (Dkt. No. 64) is APPROVED and ADOPTED in its ENTIRETY; and it is further
ORDERED, that Petitioner's Amended Petition (Dkt. No. 56) is DENIED; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.