Lithgow v. Keyser
- Alison Nathan
- 1:21-cv-00998
- U.S. District Court · Southern District of New York
- 3
In Lithgow v. Keyser, Judge Nathan adopted the recommendation, denied the petition, denied a fee waiver for appeal, and declined to issue an appeal certificate.
The petitioner, Lithgow, whose petition was denied and whose request to proceed without paying appeal fees was denied; the court also declined to issue a certificate of appealability.
What happened
In Lithgow v. Keyser, the petitioner challenged a recommendation that his petition for habeas corpus be denied. He objected to the recommendation 25 days after it was issued, although the rules allowed 14 days.
The court said the objection was late and therefore did not need to consider its merits. The court also said that, even if the objection had been timely, it did not present substantive arguments supporting relief. The court rejected the petitioner’s argument that the magistrate judge needed the petitioner’s consent to review the case and issue a recommendation.
Judge Alison J. Nathan found no error, adopted the recommendation in full, and denied the petition. The court also denied the petitioner’s request to proceed without paying appeal fees and declined to issue a certificate allowing an appeal.
The detailed version
- Lithgow v. Keyser · No. 1:21-cv-00998
- Alison Nathan
- Oct. 22, 2021
Background
The court reviewed Magistrate Judge Aaron’s Report and Recommendation, which recommended denying the petitioner’s petition for habeas corpus. The opinion states that the petitioner was proceeding without a lawyer. The petitioner objected to the recommendation.
Objections and review
Under Federal Rule of Civil Procedure 72(a), objections to the recommendation were due within 14 days. The petitioner filed his objection on October 13, 2021, 25 days after the recommendation was issued on September 18, 2021. The court held that the objection was untimely. It stated that failing to object on time waives further judicial review of the magistrate judge’s decision, so the court did not need to consider the objection’s merits.
The court added that the result would be the same even if the objection had been timely. The petitioner generally objected to the recommendation that his petition be denied, but did not make substantive arguments connected to a claim for relief. He also argued that the magistrate judge could be assigned only with the petitioner’s consent and that he had not known about any consent request because he is deaf and has mental and learning disabilities. The court said that argument did not address a claim in the petition and was meritless because the court could refer a petition to a magistrate judge for a Report and Recommendation without the parties’ consent.
Ruling
Judge Alison J. Nathan found no error in the Report and Recommendation. The court stated that the petitioner’s general objection was untimely and that, after reviewing the challenged portions, it found no basis to reject or change the recommendation. The court adopted the Report and Recommendation in its entirety and denied the petition.
The court also found under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith, so it denied the petitioner permission to proceed without paying appeal fees for that appeal. Because the petitioner had not made a substantial showing that a constitutional right was denied, the court stated that it would not issue a certificate of appealability.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.