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
In reviewing a report and recommendation, the court "may accept,
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
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
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
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).
Judge Maas' Report follows.
FRANK MAAS, United States Magistrate Judge.
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.
On January 11, 1988, following a jury trial, Hall was convicted on
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