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16-1010 - McPherron v. State of New York


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16-1010 - McPherron v. State of New York
August 22, 2016
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MEMORANDUM-DECISION AND ORDER: ORDERED that IFP status is GRANTED for the limited purpose of filing the petition. ORDERED that the petition, see Dkt. No. 1, is DISMISSED WITHOUT PREJUDICE for failure to exhaust available state-court remedies. Once Petitioner has fully exhausted his claims by raising them in the highest state court capable of reviewing them, he may refile his petition. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules") (stating that, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner"); Diguglielmo v. Senkowski, 42 F. App'x 492 (2d Cir. 2002); Stewart, No. 9:08-CV-1127, Dkt. No. 3, Decision and Order, at 5-7. The Court makes no determination regarding the merits of any of the claims Petitioner raised in the petition. ORDERED that no Certificate of Appealability ("COA") shall issue because Petitioner has failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. ยง 2253(c)(2) requires. Signed by Senior Judge Frederick J. Scullin, Jr. on 8/22/16. (served on petitioner by regular mail)(alh, )
August 22, 2016
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JUDGMENT entered pursuant to the Memorandum-Decision and Order of the Honorable Senior Judge Frederick J. Scullin, Jr. dated the 22nd day of August, 2016. (served on petitioner by regular mail) (alh, )