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Mercado v. Lempke

August 13, 2009

OSCAR MERCADO, PETITIONER,
v.
JOHN LEMPKE, SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

ORDER

John Lempke ("Respondent") brings this motion to dismiss Oscar Mercado's ("Petitioner") Petition for Writ of Habeas Corpus on the ground that the claims asserted by Petitioner are barred by the one-year limitations period of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), 28 U.S.C. § 2244(d). For the reasons stated herein, the motion is denied.

I. Background

Petitioner filed his Petition pro se on November 7, 2007, and the case subsequently was referred to Magistrate Judge Mark D. Fox for review, pursuant to 28 U.S.C. § 636(b). On January 12, 2009, the case was reassigned to Magistrate Judge Paul E. Davison, who issued a Report and Recommendation ("R&R") on March 20, 2009, concluding that this Court should deny Respondent's motion to dismiss the Petition. (R&R 11.)

Petitioner was convicted on September 22, 2002, in New York Supreme Court, and was originally sentenced by the state trial court on October 29, 2002.*fn1 (Affirm. of Arlen S. Yakut in Supp. of Not. of Mot. Pursuant to C.P.L. § 330.30 ("Yakut Affirm.") ¶ 3.) Petitioner was resentenced by the trial court on January 22, 2003. (Yakut Affirm. ¶ 4.) Petitioner's conviction was affirmed by the New York State Appellate Division on April 19, 2004. See People v. Mercado, 774 N.Y.S.2d 801, 801 (App. Div. 2004). On June 24, 2004, the New York Court of Appeals affirmed the Appellate Division's judgment. See People v. Mercado, 816 N.E.2d 205, 205 (N.Y. 2004). On February 23, 2007, Petitioner moved to vacate his conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, and on May 8, 2007, Petitioner's motion was summarily denied by the trial court. (R&R 3.) On August 20, 2007, the Appellate Division denied Petitioner's application for leave to appeal the trial court's May 8, 2007 order. (Id.) On October 17, 2007, Petitioner filed this Petition with the Southern District's Pro Se Clerk's Office. (Dkt No. 2.) In or around April 2008, Petitioner filed a post-conviction motion in state trial court, pursuant to CPL § 440.20, to set aside the January 2003 amended sentence, and on July 24, 2008, Petitioner was resentenced. (Dkt. No. 26; Opp. 10.) Petitioner's appeal of the July 24, 2008 resentence is pending in state court. (Dkt. No. 28.)

On October 2, 2008, Respondent filed his motion to dismiss the Petition on the grounds that it is time-barred and that Petitioner's purported reasons for his late filing do not justify the application of the equitable tolling doctrine.*fn2 (Dkt. No. 13.) On February 18, 2008 and October 20, 2008, Petitioner submitted two affirmations wherein he argued that his petition was timely and should not be dismissed. (Dkt. Nos. 9 & 24.)

II. Discussion

A. Standard of Review

1. Review of Report and Recommendation

A district court reviewing a magistrate judge's report and recommendation addressing a dispositive motion "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); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and must be made "[w]ithin 10 days after being served with a copy of the recommended disposition," id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Fed. R. Civ. P. 5(b)(2)(C)-(F), see Fed. R. Civ. P. 6(d), as was the case here.

Where a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Donahue, 2007 WL 831816, at *1. "However, where a party does not submit an objection, a district court need only satisfy itself that there is no clear error on the face of the record." Donahue, 2007 WL 831816, at *1 (internal citation and quotation marks omitted); see also Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) ("The district court evaluating a Magistrate Judge's report and recommendation may adopt those portions of the . . . report to which no 'specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." (quoting Fed. R. Civ. P. 72(b)(2)). "Even if neither party objects to the magistrate's recommendation, the district court is not bound by the recommendation of the magistrate." DeLeon v. Strack, 234 F.3d 84, 87 (2d Cir. 2000) (internal citation and quotation marks omitted). "In addition, a party's failure to submit an objection will waive that party's right to challenge the report and recommendation on appeal." Donahue, 2007 WL 831816, at *1.

Here, neither Party has filed objections to Magistrate Judge Davison's R&R. Accordingly, the Court has reviewed the R&R for clear error only. Having reviewed Magistrate Judge Davison's R&R for clear error, the Court adopts it to the extent consistent with this Order.

2. Statute of Limitations under AEDPA

A habeas petitioner has one year to file a petition following a state court conviction. See 28 U.S.C. ยง 2244(d)(1). The one year statute of limitations begins to run from the latest ...


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