McMorris v. Garcia

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Case 1:25-cv-00651-JLS-LGF Document4 _ Filed 10/20/25 Page 1 of 2

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UNITED STATES DISTRICT COURT Os
WESTERN DISTRICT OF NEW YORK ai or
OCT 202025 )
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ELoswenaue Se gh
DONTAVIA MCMORRIS, eset RN DISTRI cr’ eer
Petitioner,
v.
25-CV-651 (JLS) (LGF)
SHERIFF JOHN GARCIA,
Respondent.

DECISION AND ORDER

On July 21, 2025, Petitioner Dontavia McMorris commenced this action
pursuant to 28 U.S.C. § 2254 seeking a Writ of Habeas Corpus by a Person in State
Custody. Dkt. 1. The case has been referred to United States Magistrate Judge
Leslie G. Foschio for all proceedings under 28 U.S.C. §§ 6386(b)(1)(B) and (C). Dkt.
Ds

On September 23, 2025, Judge Foschio issued a Report and Recommendation
(“R&R”) recommending that this Court dismiss the petition without prejudice to
filing an amended petition within 30 days of the date of any order adopting the
R&R. See Dkt. 3 at 6. Neither party filed objections, and the time to do so has
expired.

A district court may accept, reject, or modify the findings or recommendations
of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(8). A district court
must conduct a de novo review of those portions of a magistrate judge’s

recommendation to which a party objects. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 1:25-cv-00651-JLS-LGF Document4_ Filed 10/20/25 Page 2 of 2

P. 72(b)(3). But neither 28 U.S.C. § 686 nor Federal Rule of Civil Procedure 72
requires a district court to review the recommendation of a magistrate judge to
which no objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).

This Court carefully reviewed the R&R and the relevant record. Based on
that review, the Court accepts and adopts Judge Foschio’s recommendation. Thus,
for the reasons stated above and in the R&R, the petition is DISMISSED without
prejudice to filing an amended petition by November 19, 2025.

As detailed in the R&R, any amended petition will replace compfetely the
original petition, and Petitioner shall:

answer every question and complete every blank field of the form
petition, including: (1) the date(s) of her allegedly unlawful conviction
and sentence, if she has, in fact, been convicted and sentenced; (2)
specifying the dates upon which she filed any state court proceedings in
which she challenged her state court conviction and resulting custody
and clearly set forth the grounds raised in each application and the
date(s) upon which the court(s) decided each application; and (8)
specifying all the grounds upon which her federal petition is based,
including how Petitioner has attempted to exhaust her claims, and the
facts supporting each ground in the amended petition. |

|
Dkt. 3 at 5. |

The case is referred back to Judge Foschio in accordance with the July 22,

2025 referral order. See Dkt. 2.

SO ORDERED.
Dated: October 20, 2025 -
Buffalo, New York } i —
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jp he L BR _—

JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE