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Yekimoff v. New York State Division of Parole


October 4, 2004




In a Report and Recommendation dated July 8, 2004, I recommended to the Honorable Barbara S. Jones that the habeas corpus petition submitted by pro se petitioner Sergey Yekimoff ("Petitioner") be dismissed as time-barred. (Dkt. 29.) In an objection to that Report and Recommendation (Dkt. 30 ("Petitioner's Objections")), Petitioner raised a new argument that his Petition was timely, based on the reasoning of the Eleventh Circuit in Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003). Thereafter, Judge Jones referred the matter back to me to consider Petitioner's argument under Walker, and, if needed, to reach the merits of the Petition. (Dkt. 31.) I offered Respondent the opportunity to address these points (Dkt. 32), and Respondent duly submitted a Supplemental Memorandum on September 10, 2004 (Dkt. 39).*fn1 On September 17, 2004, Petitioner filed his reply to Respondent's supplemental submission. (Dkt. 40 ("Petitioner's Reply").)

Upon consideration of all of the parties' submissions, and for the reasons discussed below, I adhere to my previous recommendation that the Petition should be dismissed on procedural grounds, because all of the claims at issue are time-barred.


In this case, Petitioner asserted two types of claims in a single habeas petition: claims challenging his conviction, and claims challenging later determinations made regarding his parole.*fn2 On October 7, 2003, after Petitioner was released from parole, the Court (Jones, J.) dismissed the parole claims as moot, leaving extant only the claims directed to Petitioner's conviction. (Dkt. 23.) Petitioner now argues, under Walker, that because his parole claims were timely when his Petition was filed, all of his earlier-accruing claims challenging his conviction must necessarily be deemed timely as well. ( See Petitioner's Objections at 2-3; Petitioner's Reply ¶ 2.)

In Walker, the Eleventh Circuit held that, in determining the timeliness of a habeas petition, it is improper for a court to evaluate the timeliness of each asserted claim individually; rather, the court held that, if a petition is timely as to even a single claim, the petition should be considered timely as to all claims asserted therein. Walker, 341 F.3d at 1242-46. In reaching this conclusion, the court relied primarily on its interpretation of language found in the statute of limitations section of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1), stating: "The statute directs the court to look at whether the 'application' is timely, not whether the individual 'claims' within the application are timely. The statute provides a single statute of limitations, with a single filing date, to be applied to the application as a whole." Walker, 341 F.3d at 1243.

Although Petitioner notes that one district court within this circuit has reached the same conclusion as did the Eleventh Circuit in Walker, see Shuckra v. Armstrong, No. 3:02 Civ. 583 (JBA), 2003 WL 1562097, at *4 (D. Conn. Mar. 21, 2003) (cited in Petitioner's Reply ¶ 2), the Second Circuit itself appears not to have addressed the issue, and at least one other circuit has taken an opposite approach. In its Supplemental Memorandum, Respondent cites the Third Circuit's decision in Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), a case in which the petitioner had argued that the timeliness of a habeas claim based on recently-discovered evidence should have the effect of reviving another, plainly untimely claim. The Third Circuit explicitly rejected the reasoning of Walker, stating that the Walker interpretation would read extra language into 28 U.S.C. § 2244(d)(1)(D), which speaks in terms of "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of reasonable diligence." Fielder, 379 F.3d at 117-18. The Third Circuit also observed that the Walker interpretation of the statute would have "the strange effect of permitting a late-accruing federal habeas claim to open the door for the assertion of other claims that had become time-barred years earlier," which would be inconsistent with congressional intent. Id. at 119-20.

This observation by the Third Circuit has particular force here, where Petitioner is asking the Court to allow his parole claims to resuscitate claims relating to his underlying conviction. Parole claims are fundamentally distinct in character from claims challenging the circumstances of conviction, and, by their nature, claims directed to parole decisions are likely to accrue some time after - potentially long after - claims directed to a petitioner's conviction. On the circumstances presented, this Court cannot agree with Petitioner's argument that, by his mere assertion of timely parole claims, his otherwise time-barred collection of conviction-related claims should now be bootstrapped into consideration. To accept this argument would be to grant Petitioner too easy a means to circumvent the strict AEDPA statute of limitations, and would indeed seem contrary to the purpose of the statute.

Accordingly, I adhere to my prior recommendation that Petitioner's remaining claims, challenging his conviction, be dismissed as time-barred, and that the Court need not reach the merits of those claims.


For the foregoing reasons, and for the reasons set forth in my previous Report and Recommendation dated July 8, 2004, I recommend that all of Petitioner's remaining claims be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d). Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

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 Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, United States Courthouse, 40 Centre Street, Room 2103, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

Respectfully submitted,

DEBRA FREEMAN United States Magistrate Judge

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