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Thompson v. Ercole

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


November 13, 2009

JASON OLIVER THOMPSON, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: Scullin, Senior Judge

ORDER

Currently before the Court are Magistrate Judge Lowe's November 14, 2008 Report and Recommendation, see Dkt. No. 2, and Petitioner's objections thereto, see Dkt. No. 4.

In his Report and Recommendation, Magistrate Judge Lowe concluded that, although Petitioner's petition was time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see Dkt. No. 2 at 3, that was not the end of the analysis because Petitioner claimed actual innocence. See id. at 4. However, Magistrate Judge Lowe found that, because "Petitioner ha[d] not presented a credible claim of actual innocence... even if an actual-innocence exception to the AEDPA statute of limitations exist[ed], Petitioner ha[d] not established that he [was] entitled to its benefits." See id. at 4. Despite this deficiency in Petitioner's petition, Magistrate Judge Lowe recommended that the Court provide Petitioner with an opportunity to file an amended petition if he claimed that his petition was, in fact, not time-barred. See id. at 5.

On December 8, 2008, Petitioner filed his objections to Magistrate Judge Lowe's Report and Recommendation. See Dkt. No. 4. In addition to taking issue with some of Magistrate Judge Lowe's findings, Petitioner primarily attempted to establish that he was, in fact, actually innocent and that, therefore, his petition was not time-barred. See, generally, Dkt. No. 4. Since it is clear that Petitioner continues to maintain that his petition is not time-barred, the Court will provide him with an opportunity to do what Magistrate Judge Lowe recommended; i.e., file an amended petition. Accordingly, the Court hereby

ORDERS that Magistrate Judge Lowe's November 14, 2008 Report and Recommendation is ADOPTED in its entirety; and the Court further

ORDERS that, should Petitioner claim that his petition is not, in fact, time-barred, he must file an amended petition within thirty (30) days of the filing date of this Order in which he must either (1) assert that he filed his state-court collateral proceedings before the expiration of the AEDPA statute of limitations, clearly listing the date(s) on which he properly filed his application(s) for state post-conviction or other collateral review concerning the subject conviction or (2) cite new, reliable evidence supporting his contention that he is actually innocent. The Court warns Petitioner that he may not incorporate any portion of any prior petition in his amended petition by reference; and the Court further

ORDERS that, if Petitioner does not file an amended petition within thirty (30) days of the filing date of this Order, the Clerk of the Court shall enter judgment dismissing this action without further Order of this Court; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Order on Petitioner in accordance with the Local Rules.

IT IS SO ORDERED.

20091113

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