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Irizarry v. Ercole

September 30, 2009

AMEDE IRIZARRY PETITIONER,
v.
ROBERT ERCOLE, FIVE POINTS CORRECTIONAL FACILITY RESPONDENT.



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

ORDER ADOPTING REPORT AND RECOMMENDATION

On June 30, 2008, Petitioner, proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent moved to dismiss the petition pursuant to Federal Rule of Civil Procedure 12(b)(6). Magistrate Judge Davison issued a Report and Recommendation (R&R) on April 14, 2009, advising this Court to deny Respondent's motion. Despite Respondent's objections, this Court adopts the R&R and denies the motion.

I. Background

The Court adopts the factual and procedural background of this case as set forth in the R&R at 1-2, which it briefly summarizes here. Petitioner left blank sections 13 and 14 of his § 2254 form, which he filed on June 30, 2008. The instructions for section 13 direct petitioners to "STATE EVERY GROUND ON WHICH YOU CLAIM THAT YOU ARE BEING HELD UNLAWFULLY." The instructions for section 14 counsel that "[i]f your judgment of conviction was made final over one-year ago, you must set forth below why the one-year statute of limitations as codified in 28 U.S.C. § 2244(d) does not bar your petition."

Petitioner attached four pages to this form petition. The first two pages contain an outline of a brief under the heading "TABLE OF CONTENTS." The third page has the heading "STATEMENT" and indicates that it originally came from Petitioner's state court appellate brief. The last page bears the heading "QUESTION PRESENTED" and restates the six points listed as grounds for appeal in the Table of Contents.

On October 3, 2008, Respondent filed a pre-motion letter, citing Petitioner's failure to complete section 13. (Letter from John J. Sergi, Counsel for Respondent, to Magistrate Judge George A. Yanthis (Oct 3, 2008)). On November 25, 2008, Petitioner sent the Court his response to section 13, asking that it be made part of his original petition. (Letter from Petitioner to Magistrate Judge George A. Yanthis (November 25, 2008).) Notably, section 13 of Petitioner's new form copied verbatim the six points listed in the pages attached to the original Petition under the heading "TABLE OF CONTENTS." (Id.) Petitioner also "humbly and respectfully," asked the Court "to guide me in this matter, in the event of a leave to amend my petition or any other proceeding is necessary." (Id.) Petitioner closed by asking the Court "to please accept my apology for the inconvenient [sic] caused by my oversight." (Id.)

Not satisfied with Petitioner's mea culpa, Respondent moved, on December 2, 2008, to dismiss the Petition pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Petitioner's failure to complete sections 13 and 14 renders the Petition a nullity because it fails to give adequate notice of Petitioner's claims. In response, Petitioner opposed the motion but noted that "[i]n the event that this declaration does not address th[e] issue[s] [raised in] the District Attorney [sic] Motion to Dismiss, petitioner respectfully request [sic] that this Court allow him to amend his petition." (Decl. of Amede Irizarry in Opposition to Resp't's Mot. to Dismiss 2 ("Irizarry Decl.").)

II. Discussion

A. Standard of Review

A district court reviewing a 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 Federal Rule of Civil Procedure 72(b), 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).

Where a party submits timely objections to a report and recommendation, as Respondent has here (Dkt. No.13), 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. The district court "may adopt those portions of the . . . report [and recommendation] 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." Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) (citing Fed.R.Civ.P. 72(b)(2)).*fn1

B. Analysis

1. Sufficiency of the Petition

Respondent moves to dismiss on the grounds that Petitioner failed to fill out the § 2254 form correctly. It is well established that a "petition for habeas corpus ought not to be scrutinized with technical nicety." Holiday v. Johnston, 313 U.S. 342, 350 (1941); see also Gibbs v. Burke, 337 U.S. 773, 779 (1949) (finding it "insignificant" that a habeas "petitioner cited the Sixth rather than the Fourteenth Amendment" because "[m]eticulous insistence upon regularity in procedural allegations is foreign to the purpose of habeas corpus"). Pleadings submitted by pro se litigants are likewise held to a more tolerant standard. See Fed. Express Corp. v. Holowecki, 128 S.Ct. 1147, 1158 (2008) ("Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties."); cf. Green v. United States, 260 F.3d 78, 83 (2d ...


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