Opinion
01 C. 1259 (LTS) (AJP)
February 11, 2002
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
On October 9, 2001, Magistrate Judge Andrew J. Peck issued a Report and Recommendation ("Report") recommending that this petition be transferred to the Second Circuit pursuant to 28 U.S.C. § 1361, in accordance with procedures set out by the Second Circuit in Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996). On October 16, 2001, Petitioner filed an objection to the Report and Recommendation; Petitioner filed a second, similar objection on October 18, 2001.
In reviewing the Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636 (b)(1)(C) (West 1993). The statute provides that "[w]ithin ten days . . . any party may serve and file written objections to such proposed findings and recommendations. . . ." Id. "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record."Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (Court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Petitioner's initial objection was filed timely but consists merely of vague, conclusory statements objecting to the Report as a whole. That October 16, 2001 submission reads in relevant part as follows: "I object to this injustice . . . I object to everything." (Letter from Petitioner, entered October 17, 2001.) Petitioner's subsequent submission on October 18, 2001 merely reiterates his claims that his criminal convictions were reversed and he "demands his release now." (Letter from Petitioner, entered October 18, 2001.) "Such a submission cannot be treated as an objection within the meaning of 28 U.S.C. § 636."Vargas v. Keane No. 93 Civ. 7852 (MBM). 1994 WL 693885, at *1 (S.D.N.Y. Dec 12, 1994), aff'd 86 F.3d 1283 (2d Cir.), cert. denied 519 U.S. 895 (1996). When a petitioner makes only conclusory or general objections, the Court reviews the Report and Recommendation only for clear error. See Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleadings). Parties filing objections to recommendations are required to "'pinpoint' specific portions of the report and recommendations to which it objected. . . ."Id. Petitioner's statements that he "objects" and wants his "rights" fail to meet the required level of specificity.
Petitioner's responses to Magistrate Judge Peck's Report focus on two issues: Petitioner's continued contention that his criminal conviction was reversed in 1996; and his assertion that the instant petition is merely a further amendment of his August 2000 petition. The lack of clear error in Magistrate Judge Peck's Report is apparent. As explained by Magistrate Judge Peck in his Report. Petitioner's original criminal conviction was affirmed in 1995 and leave to appeal that affirmance was denied in the same year. There is no record of reversal of that conviction by the Second Circuit or any other court. Petitioner notes accurately that he amended his August 2000 petition in response to orders issued by Chief Judge Mukasey of this Court. He fails to recognize, however, that Chief Judge Mukasey found his amended petition insufficient to show that his application was timely. Chief Judge Mukasey dismissed Petitioner's case and denied a certificate of appealability. The Second Circuit affirmed the dismissal of that petition. Proceedings in respect to the August 2000 petition have thus been concluded and can not be reopened. Because the August 2000 petition had been dismissed and the case closed before the Petitioner filed the petition that commenced this proceeding, the new petition was necessarily treated as a next proceeding. Because Petitioner had brought a previous habeas corpus proceeding, the law precludes this Court from considering his new petition, and requires this Court to transfer the matter to the Second Circuit.
Petitioner's argument that he was not supplied with the necessary resources to file his habeas petition is not an objection to the Report but raises a substantive issue. Chambrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991) (restatement of allegations already before the Court and assertion that a valid constitutional claim exists insufficient to form specific objections). The Court has thoroughly reviewed Magistrate Judge Peck's comprehensive and well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the case will be transferred to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1361.
SO ORDERED.
Magistrate Judge Peck's Report and Recommendation is set forth in full below.
For the reasons set forth below, McMillan's petition (albeit time barred) is a second or successive petition over which this Court lacks jurisdiction, see 28 U.S.C. § 2244 (b)(3)(A), and therefore the case should be transferred to the Second Circuit pursuant to 28 U.S.C. § 1631, using the procedures set out by the Second Circuit in Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996).
BACKGROUND
Pro se petitioner Herman McMillan, aka Herman McMillian, brought this pro se habeas petition on or about October 14, 2000. (Dkt. No. 1: Pet.) McMillan claims that he is innocent of the multiple charges of rape, sodomy and child abuse of which he was found guilty and sentenced to two consecutive terms of 8-1/3 to 25 years imprisonment. (Pet. ¶ 4.) See People v. McMillan, 212 A.D.2d 445, 445, 622 N.Y.S.2d 935, 936 (1st Dep't), app. denied, 85 N.Y.2d 976, 629 N.Y.S.2d 736 (1995).
McMillan's sole habeas claim is that his continued incarceration is unlawful because the Second Circuit reversed his conviction on August 27, 1996. (Pet. ¶ 12(A).)
Chief Judge Mukasey directed McMillan to show cause why his petition was not time barred, since his conviction became final on August 10, 1995 and therefore, after enactment of the AEDPA. McMillan had until April 24, 1997 to file his habeas petition, which was not filed until October 2000. (Dkt. No. 2: 2/20/01 Order.)
In response to that Order, McMillan filed an affidavit stating that prison officials took his legal papers in 1993 and did not give them back to him until he was transferred to Attica in July 1999. (Dkt. No. 3: McMillan 3/6/01 Aff., last page.) The case was reassigned to Judge Swain. (Dkt. No. 4.) The Bronx District Attorney's Office responded to the petition on September 28, 2001 by moving to dismiss the petition as time barred. (Dkt. No. 9.) Judge Swain referred the case to me for a Report and Recommendation on October 5, 2001.
ANALYSIS
While it is clear that McMillan's petition is time barred, it suffers from a jurisdictional defect that prevents this Court from ruling on the petition: this petition is a successive petition and McMillan did not receive permission to file it from the Second Circuit.
Even assuming arguendo that McMillan was entitled to equitable tolling of the AEDPA limitations period during the time in which he alleges state prison officials withheld his legal papers (an issue that need not be addressed here), McMillan claims his papers were returned in July 1999 (Dkt. No. 3: McMillan 3/6/01 Aff., last page), and the current petition was not filed until well over a year later, in October 2000.
McMillan filed an earlier habeas petition in August 2000, also asserting that his conviction had been reversed by the Second Circuit on August 27, 1996. See McMillan v. Johnson, 00 Civ. 6490 (MBM). Chief Judge Mukasey dismissed that petition (and McMillan's amended petition) as time barred. (00 Civ. 6490, Dkt. Nos. 2, 4 8.) The Second Circuit denied McMillan's request for a certificate of appealability and dismissed his appeal, finding that his petition was untimely filed. (00 Civ. 6490, Dkt. No. 10: 2d Cir. Order Mandate, 7/5/01.)
In the interests of justice, this Court checked with the Second Circuit's Clerk's Office. There is no Second Circuit decision or Order dated August 27, 1996, or any other date, overturning McMillan's conviction.
Clearly, McMillan's present habeas petition raises the exact same issue raised in his prior petition, which was dismissed and the dismissal affirmed by the Second Circuit. It therefore is a second or successive application.
"Before a second or successive application permitted by this section is filed in a district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244 (b)(3)(A).
The Second Circuit announced the procedure to be followed where a successive petition is erroneously filed in the district court:
[W]hen a second or successive petition for habeas corpus relief or § 2255 motion is filed in a district court without the authorization by this Court that is mandated by § 2244(b)(3), the district court should transfer the petition or motion to [the Second Circuit] in the interest of justice pursuant to [28 U.S.C.] § 1631. . . .
The Clerk of [the Second Circuit] will then send a notice to the petitioner or movant that a motion must be filed pursuant to § 2244(b)(3). The notice will explain the substantive requirements that such a motion must satisfy, and advise the petitioner or movant that: (1) the motion pursuant to § 2244(b)(3) must be filed in [the Second Circuit] within forty-five days of the date of the Clerk's notice; and (2) if the motion is not so filed, an order will be entered denying authorization for the underlying petition for habeas corpus or § 2255 motion to be filed in [the] district court.Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996).
CONCLUSION
For the reasons set forth above, this is a successive habeas petition and (although time barred) should be transferred to the Second Circuit pursuant to 28 U.S.C. § 1631.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 426, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Serve., 892 F.2d 15, 16 (2d Cir. 1989);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).