Opinion
11 CV 6092 (VB)
02-11-2013
ANNE TROVATO, Petitioner, v. SABRINA KAPLAN, Superintendent, Bed ford Hills Correctional Facility, Respondent.
MEMORANDUM DECISION
Briccetti, J.:
Now pending before the Court is Magistrate Judge George A. Yanthis's Report and Recommendation ("R&R"), dated December 19, 2012 (Doc. #24), on petitioner pro se Anne Trovato's petition for a writ of habeas corpus.
Petitioner was convicted in Supreme Court. Westchester County, of murder in the second degree and burglary in the second degree, in the death of her mother. Her conviction was affirmed by the Appellate Division, Second Department, and her motion seeking leave to appeal was denied by the Court of Appeals on March 30, 2010. She filed the instant petition on August 23, 2011. Chief Judge Preska issued an order directing petitioner to show cause by affirmation why her petition should not be dismissed as time barred. Petitioner filed an affirmation, and respondent thereafter moved to dismiss the petition as untimely filed. Judge Yanthis recommended that this Court grant respondent's motion. (Doc. #16).
For the reasons set forth below, the Court adopts the R&R as the opinion of the Court, and GRANTS the motion to dismiss. The petition is dismissed in its entirety.
Standard of Review
In reviewing a magistrate judge's recommended ruling, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Parties may raise objections to the recommended ruling, but they must be "specific" and "written," and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); see Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. See Wilds v. UPS, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates her original arguments. Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008).
The objections of parties appearing pro se are "generally accorded leniency," Milano v. Astrue, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008), and should be construed to "raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a 'second bite at the apple' by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008).
Plaintiff will be provided with copies of all unpublished opinions cited in this ruling. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
Discussion
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), petitioner is entitled to habeas corpus relief only if she can show "the state court 'unreasonably' applied law as established by the Supreme Court in ruling on petitioner's claim, or made a decision that was 'contrary to' it." Cousin v. Bennett, 511 F.3d 334, 337 (2d Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)). The state court's determination of factual issues is presumed correct, and petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
A petition for a writ of habeas corpus must be filed within one year of the latest of four triggering events. In this case, the triggering event was the "date on which [petitioner's state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment became final on June 28, 2010, ninety days after the New York Court of Appeals denied her motion for leave to appeal, which was the deadline for seeking a writ of certiorari from the United States Supreme Court. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). Thus, the one year statute of limitation expired June 28, 2011. Since the instant petition was filed on August 23, 2011, it was untimely under 28 U.S.C. § 2244(d)(1)(A). And since petitioner did not file an application in State court for post-conviction relief or other collateral review, the one year statute in this case was not tolled. See 28 U.S.C, § 2244(d)(2).
The central question addressed by Magistrate Judge Yanthis was whether petitioner was nonetheless entitled to equitable tolling of the AEDPA limitation period. For equitable tolling to apply, petitioner must show that she diligently pursued her rights and that "some extraordinary circumstance . . . prevented timely filing." Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Petitioner argues she is entitled to equitable tolling because she was misinformed by a prison law library clerk that she was required to file a motion for post-conviction relief under N.Y. C.P.L, § 440.10 prior to filing her federal habeas petition; she diligently pursued her rights by requesting her trial transcripts numerous times in order to prepare her CPL 440.10 motion; her inability to obtain her trial transcripts caused undue hardship and impeded her ability to file an appeal; and she is actually innocent of the charges for which was convicted.
In the R&R, Judge Yanthis rejected petitioner's arguments because (1) misinformation provided by a prison law clerk is not an extraordinary circumstance preventing timely filing of the petition, (2) petitioner has not alleged that her inability to obtain the trial transcripts, even if she acted diligently in attempting to obtain them, somehow prevented her from filing the habeas petition on time, and (3) she proffered no new reliable evidence in light of which it is likely no reasonable juror would have found her guilty beyond a reasonable doubt. Accordingly. Judge Yanthis found that petitioner is not entitled to equitable tolling of the one year statute of limitation, and recommended that the motion to dismiss be granted and that the petition be dismissed in its entirety.
On January 7, 2013, petitioner filed timely objections to the R&R, entitled "Petitioner's Opposition to the United States District Court's Order and Recommendation to Dismiss." (Doc. #27). However, the objections merely reiterate the arguments petitioner made to Judge Yanthis in opposition to respondent's motion to dismiss.
The Court has reviewed documents petitioner has submitted with her objections, which she refers to as "new evidence." These documents do not alter the Court's conclusion that petitioner is not entitled to equitable tolling and that she has not proffered new reliable evidence of actual innocence.
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Having reviewed the petition, petitioner's affirmation for timeliness, respondent's motion to dismiss, petitioner's response to the motion, and petitioner's objections to the R&R, as well all other papers submitted in this case, the Court concludes that Judge Yanthis's thorough and well-reasoned R&R is not clearly erroneous. Moreover, the R&R correctly found that petitioner was not entitled to equitable tolling.
CONCLUSION
Judge Yanthis's R&R is hereby adopted in its entirety as the opinion of the Court. The motion to dismiss the petition for a writ of habeas corpus is GRANTED, and the petition is DISMISSED as time-barred. The Clerk is instructed to enter judgment accordingly and close this case.
The Clerk is also instructed to terminate the motion. (Doc. #16).
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3d 192. 195 (2d Cir. 2005). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962). Dated: February 11, 2013
White Plains. NY
SO ORDERED:
_________________________
Vincent L. Briccetti
United States District Judge