Opinion
00-CV-0301E(Sc)
January 9, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Petitioner King, currently incarcerated in a New York State prison and serving an indeterminate term of imprisonment of twenty-five years to life syfollowing a Second Degree Murder conviction in New York State Supreme Court, Erie County, filed a April 10, 2000 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By Order, dated April 14, 2000, Petitioner was directed to file an information regarding why the petition was not untimely pursuant to section 2244(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). This action was subsequently referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1)(B), for an evaluation of the merits and a recommended disposition. Judge Schroeder filed a January 21, 2003 Report and Recommendation ("R R") in which he recommended that the petition be dismissed as untimely. King filed Objections to the R R on February 3, 2003. Oral argument regarding King's Objections was heard on April 10, 2003.
Section 2244(d)(1) states that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court"
While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed. King had until April 24, 1997 to file his habeas corpus application inasmuch as his conviction had become final prior to the enactment of the AEDPA. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (holding that a prisoner whose conviction became final prior to the AEDPA's enactment date of April 24, 1996 has a one-year grace period in which to file a habeas corpus petition). However, the central issue is whether such limitations period was tolled for any "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim [was] pending." 28 U.S.C. § 2244(d)(2).
A more detailed recitation of the facts and procedural history in this case is set out in Magistrate Judge Schroeder's R R.
King contends that the one-year limitations period was tolled by a habeas corpus petition that he filed in New York State Supreme Court, Erie County, on October 31, 1994. King's petition was denied pursuant to a January 4, 1995 Memorandum and Order by New York State Supreme Court Justice Rose H. Sconiers. King subsequently filed a February 8, 1995 Notice of Appeal. However, no further action was taken by King or his counsel to perfect his appeal. In arguing that his petition should not be dismissed as untimely, King asserts that Judge Sconier's January 4, 1995 Order was not properly served upon him because he was never served with a Notice of Entry. See Pet'r's December 14, 2001 Memo of Law, at 2-3. King argues that his February 8, 1995 Notice of Appeal was therefore invalid inasmuch as it was filed prematurely and that his time to appeal Judge Sconier's Order has not yet begun to accrue. Consequently, King argues that the one-year statute of limitations was therefore tolled pursuant to 28 U.S.C. § 2244(d)(2). Ibid. In addition, King argues that the one-year statute of limitations (1) should be equitably tolled due to the misconduct of the State of New York, its agencies, and agents, (2) is an unconstitutional suspension of the writ of habeas corpus, (3) violates his right to equal protection and (4) violates the prohibition against ex post facto laws.
Thus, Respondents contend that King's appeal was automatically dismissed after nine months pursuant to 22 N.Y.C.R.R. § 1000.12(b). Resp'ts' December 14, 2001 Memo of Law, at 2.
In recommending that King's petition be denied as untimely, Judge Schroeder found that the AEDPA's statute of limitations was not tolled and rejected King's argument that his time to appeal Justice Sconier's Order has yet to accrue because no Notice of Entry has been filed. Upon analyzing the record and New York State's procedural requirements — viz., several provisions of New York's applicable Civil Practice Law and Rules ("CPLR") — Judge Schroeder concluded that King had not filed any state court application that could serve to toll the applicable one-year statute of limitations. R R, at 8-12. In addition, Judge Schroeder found that King had failed to show the existence of extraordinary circumstances that would justify equitable estoppel of the one-year statute of limitations. Id. at 12-15. Lastly, Judge Schroeder declared that the AEDPA's statute of limitation provision is not unconstitutional inasmuch as it (1) does not suspend the writ of habeas corpus, (2) does not violate the equal protection clause because King had no right to counsel during his discretionary appeals and (3) does not violate the ex post facto clause because the law is merely procedural and does not increase Petitioner's punishment. Id. at 16-19.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the R R to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1)(C); see also Thomas v. Arn, 474 U.S. 140, 149-150 (1985) (holding that failure to timely object to a magistrate's recommended decision waives any right to further judicial review because section 636(b)(1)(C) does not require any review at all by the district court of an issue to which a party does not object); United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997) (indicating that a party's failure to timely object to a magistrate's report and recommendation may waive that party's right to further judicial review of magistrate's decision). It is entirely within the province of this Court to adopt the portions of the R R to which no specific objection has been raised. See Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000). However, the undersigned must make a de novo determination with respect to those portions of the R R to which specific objections have been made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 673-676 (1980).
The Court now turns to King's specific objections. King's first objection to the R R is that Judge Schroeder failed to address six particular arguments that he had made in support of the timeliness of his petition and that his analysis of a seventh argument was perfunctory and conclusory. See Pet'r's Objs., at 5. However, such arguments are mere reiterations of King's central contention that various procedural defects with his Notice of Appeal tolled the one-year statute of limitations. Such a contention was specifically and adequately addressed by Judge Schroeder. See R R, at 9-12 (discussing New York's procedural rules governing the filing of a notice of appeal and why such rules cannot be relied upon by King to toll AEDPA's statute of limitations). In any event, the Court has conducted a de novo review of the relevant portions of the R R and concurs with Judge Schroeder's finding that the AEDPA's one-year statute of limitations was not tolled in this case inasmuch as King had no pending state court applications for post-conviction relief during the applicable limitations period. In addition, upon reviewing the arguments which Petitioner contends were not addressed in Judge Schroeder's R R, the Court finds them without merit.
Such arguments are that (1) the notice of appeal was premature and must be made valid by the appellate court, (2) since King was abandoned by his attorney, notice by the appellate court would not be valid, (3) King's attorney in question could have been considered disabled under CPLR § 3219(c), (4) the notice of appeal was served on the wrong party, (5) there was no implied waiver of any state procedural rights by King and (6) the cause of action for destruction of evidence was timely brought. Pet'r's Objs., at 5.
Specifically, Judge Schroeder did address Petitioner's arguments premised on the purported invalidity of the premature Notice of Appeal. Judge Schroeder correctly concluded that King's relevant appeal would not have been dismissed on such basis. See R R, at 11-12 (citing applicable provisions of the CPLR and case law).
Second, King contends that Judge Schroeder erred in his analysis of both the CPLR and pertinent New York case law. Pet'r's Objs., at 5-6. King has not clearly explained how Judge Schroeder misapplied such laws to the facts of this case. Furthermore, King has not cited any relevant case law that was ignored by Judge Schroeder or that would support his contentions. In any event, the undersigned has undertaken a de novo review of the pertinent provisions of the CPLR and the case law relied upon by Judge Schroeder and finds that his analyses were neither erroneous nor unreasonable.
See R R, at 8-12 (analyzing the pertinent provisions of the CPLR that were in effect at the time of King's state habeas petition and citing relevant case law).
King next objects to Judge Schroeder's reliance on Bethea v. Girdrich, 293 F.3d 577 (2d Cir. 2002). Pet.'s Objs., at 6. Judge Schroeder cited Bethea for the proposition that the filing of a motion to extend the time to appeal or to file a late notice of appeal in state court does not "restart" the statutory period of limitations. R R, at 12 n. 8. Petitioner disagrees with the Magistrate's interpretation of Bethea and argues "for the limited tolling during the one year in which [his] dismissed appeal [could have been] restored." Pet.'s Objs., at 6. To begin, Bethea is distinguishable from the present case and is therefore not essential to Judge Schroeder's ultimate conclusion. The issue before the Bethea court was whether a motion to extend the time to appeal or to file a late notice of appeal restarts the AEDPA's limitations period while the issue here is whether any of King's applications tolled the limitations period. Furthermore, Bethea supports Judge Schroeder's conclusion that King's state habeas petition did not operate in this case to toll the one-year limitations period. See Bethea, at 579 (doubting the fact that petitioner's motions had tolled the limitations period inasmuch they were not "properly filed applications for state post-conviction or other collateral review"). In any event, King's conclusory objection that Judge Schroeder misconstrued Bethea is without merit.
King also objects to Judge Schroeder's analysis of his equitable estoppel argument as conclusory. Pet.'s Objs., at 7. However, Judge Schroeder's R R provides an extensive examination of the doctrine of equitable tolling and its application to the issues raised in this particular case. See R R at 12-15. Although King has not provided any specific objections to any particular points regarding Judge Schroeder's equitable estoppel analysis, the undersigned's de novo review of such does not reveal any erroneous conclusion of law or of fact.
Lastly, King objects to Judge Schroeder's finding that the AEDPA's statute of limitations is not unconstitutional. However, as explained by Judge Schroeder, the Second Circuit Court of Appeals and the Supreme Court have consistently rejected similar constitutional challenges. See R R, at 16-19 (citing cases). King has failed to convince the Court that Judge Schroeder's constitutional analysis was somehow erroneous.
Accordingly, it is hereby ORDERED that petitioner's Objections are overruled, that Judge Schroeder's R R is adopted in its entirety, that petitioner's petition for a writ of habeas corpus is dismissed and that, there being no substantial question presented for appeal, a certificate of appealability will not issue.