DONTAVIA McMORRIS v. SHERIFF JOHN 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 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 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