McMorris v. Garcia

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DONTAVIA McMORRIS,
REPORT
Petitioner, 	and
v. 	RECOMMENDATION
SHERIFF JOHN GARCIA, 	25-CV-651-JLS(F)
Respondent.
______________________________________
APPEARANCES: 	DONTAVIA McMORRIS, Pro se
159580
Erie County Correctional Facility
11581 Walden Avenue
Alden, New York 14004
This case was re-referred to the undersigned by Honorable John J. Sinatra, Jr.
on October 20, 2025 (Dkt. 4), for all pretrial matters including preparation of a report and
recommendation on dispositive motions in accordance with the July 22, 2025 referral
order (Dkt. 2).
On July 21, 2025, Plaintiff filed a petition seeking habeas relief pursuant to 28
U.S.C. § 2254 (“§ 2254”) (Dkt. 1) (“the Petition”). In a Report and Recommendation
filed September 23, 2025 (Dkt. 3) (“the R&R”), the undersigned recommended the
Petition be dismissed without prejudice to filing an amended petition that made clear
whether Petitioner is, at present, “in custody pursuant to the judgment of a State court”
as required for habeas relief under 28 U.S.C. § 2254(a), as well as whether Petitioner
has exhausted state remedies as required, 28 U.S.C. § 2254(b)(1)(A), or whether
“circumstances exist” rendering the exhaustion of state remedies ineffective. 28 U.S.C.
§ 2254(b)(1)(B)(i), (ii). In a Decision and Order filed October 20, 2025 (Dkt. 4), the
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District Judge adopted the R&R, dismissing the Petition without prejudice to Petitioner
filing an amended petition by November 19, 2025, in which Petitioner was to provide
certain information concerning the dates of her allegedly unlawful conviction and
sentencing, the dates on which Petitioner challenged her conviction in state court and
the grounds for such challenges, and detailing how Plaintiff attempted to exhaust the
grounds on which her federal petition for habeas relief is based. To date, Plaintiff has
not filed an amended petition and the deadline to do so has passed.
Accordingly, there being no timely filed petition before the court, the action
should be DISMISSED with prejudice and the file should be closed.
CONCLUSION
Based on the foregoing, Plaintiff having failed to file an amended petition by
November 19, 2025, the action should be DISMISSED with prejudice and the file should
be closed.
Respectfully submitted,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	December 23, 2025
Buffalo, New York
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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the Plaintiff and
the Defendant.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	December 23, 2025
Buffalo, New York
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