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February 11, 2004.

WILLIE LEON HALL, Petitioner -against- VICTOR T. HERBERT, Warden, Respondent; WILLIE LEON HALL, Petitioner -against- VICTOR T. HERBERT, Warden, Respondent

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


On April 30, 2003, Magistrate Judge Frank Maas issued a report and recommendation ("Report") recommending that respondent Victor Herbert's motion to dismiss as time-barred Willie Leon Hall's two petitions for writ of habeas corpus be granted. Hall submitted timely objections to the Report.

In reviewing a report and recommendation, the court "may accept, reject, or Page 2 modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(c) (West 2002). "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 record. Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 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. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, to the extent that a party simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., No. 00 CV 7552, 2002 US Dist LEXIS 24700, at *4-5 (S.D.N.Y. Dec. 26, 2002) (objections that are mere attempts to rehash issues that have already been decided should be reviewed for clear error.)

  Judge Maas found Hall's petitions to be untimely under 28 U.S.C.A § 2244(d)(1) (West 1994 & Supp. 2003), a provision enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and recommended that the petitions be dismissed on those grounds. As explained in Judge Maas' Report, Judge Maas found that there was no factual basis for Petitioner's contention that the petitions should be held timely by virtue of tolling arising from continuous pendency of applications for post-conviction or other collateral review of his convictions.

  In his Objection to the Report, Petitioner raises two further timeliness arguments for the first time: that he is entitled to equitable tolling because the state's apparent inability to provide him with transcripts of his trial proceedings prevented him from filing the habeas corpus Page 3 petitions on a timely basis, and that AEDPA's statute of limitations provisions violate Petitioner's constitutional rights. Because neither of these new arguments is the proper subject of an objection to a Report and Recommendation, they could be rejected on that basis alone. Cf. Forman v. Artuz, 211 F. Supp.2d 415, 419 n.8 (S.D.N.Y. 2000), and cases cited therein. In deference to Petitioner's pro se status and in the interests of the efficient administration of justice the Court has, however, examined the merits of these contentions.

  A state's failure to deliver a trial transcript does not categorically preclude the filing of a petition for habeas corpus or normally constitute grounds for equitable tolling of the statutory time limit. See Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001). Evidence of such failure may, however, support a finding that the tolling provisions of 28 U.S.C. § 2244(d)(1)(B) (providing that limitation period in appropriate circumstances runs from "the date on which [an] impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action") or 28 U.S.C. § 2244(d)(1)(D) (under appropriate circumstances limitation period runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence") should apply. See Edmond v. United States Attorney, 959 F. Supp. 1 (D.D.C. 1997) (discussing parallel provisions applicable to persons in federal custody). Plaintiff has not asserted any constitutional or other federal law violation in connection with the unavailability of the transcripts, does not premise his petition on newly-discovered evidence, and has proffered no facts showing that the unavailability of the transcripts prevented him from filing the petition. Indeed, his pursuit of his direct appeal, two section 440.10 motions and a petition for a writ of error coram nobis prior to the expiration of the Page 4 AEDPA limitations period suggests strongly that the lack of transcripts did not prevent timely filing of the instant petitions. Accordingly, Petitioner's equitable tolling argument is without merit.

  As to Petitioner's constitutional argument, it is well-settled that AEDPA's one-year statute of limitations does not deny prisoners a reasonable opportunity to try their claims on the merits and that, despite the statute of limitations, the habeas remedy is still an adequate means of testing the legality of their detention. Therefore, the statute of limitations "does not per se constitute an unconstitutional suspension of the writ of habeas corpus." Lucidore v. New York State Division of Parole, 209 F.3d 107, 113 (2d Cir. 2000). Furthermore, Petitioner has proffered no facts that could support a rational conclusion that he did not have a reasonable opportunity to file his petitions for habeas corpus in a timely fashion.

  The Court has reviewed thoroughly Judge Maas' 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 petitions for writs of habeas corpus are denied.

  The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. 2253(c)(2): see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. The Court further certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962). Page 5

  Judge Maas' Report follows.


  FRANK MAAS, United States Magistrate Judge.

 I. Introduction

  Petitioner Willie Leon Hall ("Hall"), proceeding pro se pursuant to 28 U.S.C. § 2254, has filed two habeas corpus petitions, in which he challenges two separate judgments of conviction entered against him in 1988 in Supreme Court, Bronx County. The Respondent has now moved to dismiss both petitions as time-barred under 28 U.S.C. § 2244(d)(1), a provision enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For the reasons that follow, I recommend that the Respondent's motion be granted and the petitions dismissed as untimely.

 II. Background

  A. Trial and Conviction

  On January 11, 1988, following a jury trial, Hall was convicted on multiple Page 6 felony counts of rape, sodomy, and burglary, among other crimes. Justice Peggy Bernheim sentenced Hall, as a predicate violent felony offender, to an aggregate indeterminate sentence of 56 to 112 years in prison. ...

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