The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
On December 12, 2001, petitioner Hector Rivas filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his New York State conviction for second-degree murder. (See Dkt. No. 1.) On January 28, 2005, without reaching the merits of Rivas's habeas claims, this court dismissed his petition as time-barred under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1)(D). (See Dkt. No. 21.) On December 11, 2008, that dismissal was reversed on appeal, and the matter was remanded. See Rivas v. Fischer, 294 Fed. Appx. 677 (2d Cir. 2008) (unpublished). On remand, the court was instructed to conduct an evidentiary hearing to assess whether, through the exercise of due diligence, Rivas could have discovered the factual predicates for his claims before May 8, 1999, in which case his petition would be untimely.*fn1 See id. at 678-79. The court was also instructed to consider whether,in the event of a finding of untimeliness, Rivas had nonetheless established a claim of actual innocence sufficient to salvage his untimely petition.*fn2 See id. at 679.
On September 21, 2009, upon referral from this court, Magistrate Judge David E. Peebles conducted the required evidentiary hearing. (See R&R at 25, Dkt. No. 65.) Following the hearing and submission of post-hearing briefs by the parties, Judge Peebles issued a Report and Recommendation (R&R) recommending that Rivas's claims be dismissed as untimely. (See id.) Pending are Rivas's objections to the R&R. (Dkt. No. 76.) Upon careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the R&R in its entirety.
Rivas seeks a writ of habeas corpus on the grounds that: (1) newly discovered evidence casts doubt upon the trial testimony of medical examiner Dr. Eric K. Mitchell, a key prosecution witness; (2) the prosecution failed to provide Rivas's counsel with Brady*fn4 material; and (3) his trial counsel was ineffective. (See Am. Pet., Dkt. No. 14:2.) In recommending the dismissal of Rivas's petition as untimely under AEDPA, Judge Peebles found that Rivas had "failed to prove that the factual predicate for any of the grounds asserted in his amended petition could not have been discovered by him through due diligence before May 8, 1999," and that Rivas had also "failed to establish a claim of actual innocence." (See R&Rat 48, Dkt. No. 65.) In light of Rivas's objections to these findings, the court has reviewed the majority of the R&R de novo and the remainder for clear error. See Almonte v. N.Y. State Div. of Parole,No. 9:04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006).
1. Claim Based on Dr. Mitchell's Testimony
Rivas claims in his habeas petition that newly discovered evidence casts doubt upon the trial testimony of medical examiner Dr. Eric K. Mitchell. The evidence that Rivas claims is "newly discovered" in this regard is(1) evidence that Dr. Mitchell was under investigation for professional misconduct; (2) evidence that Mitchell falsely testified to the existence of nonexistent "brain slides"; and (3) expert opinion evidence that Dr. Mitchell's testimony as to the victim's time of death was inaccurate and not based on generally accepted scientific principles. (See Am. Pet. ¶ 12(A), Dkt. No. 14:2; Am. Pet Mem. of Law at 5-10, Dkt. No. 14.2.)
In the R&R, Judge Peebles addressed each of these evidentiary bases and found that Rivas failed to prove that any constituted factual predicates undiscoverable prior to May 8, 1999. (See R&R at 30-35, Dkt. No. 65.) In response to these findings, Rivas offers a multitude of objections, many of which are less than clear. In the interest of efficiency, the court declines to address each of these objections individually and has instead reviewed all relevant portions of the R&R de novo. Upon that review, and for the reasons that follow, the court concurs with Judge Peebles and adopts his findings as to Rivas's claim regarding Dr. Mitchell's testimony.
The court first agrees with Judge Peebles's assessment that the investigation of Dr. Mitchell was "[not] newly discovered after May 8, 1999." (Id. at 30.) As Judge Peebles explained in the R&R, "[t]he publicity regarding the investigation belies any claim that Rivas and his counsel could not have learned of the investigation at or prior to the time of trial through the exercise of due diligence," and that "[e]fforts by Rivas'[s] attorneys to obtain records associated with the investigation" demonstrate that they "were well aware in 1998 of the ... investigation." (Id. at 30-31.)
Thus, based on these findings, Judge Peebles concluded, and this court agrees, that Rivas "had the information necessary to advance [the] issue as a ground for seeking habeas relief long before May 8, 1999." (Id. at 31-32.)
The court likewise agrees that the nonexistence of "brain slides" was not "newly discovered." (See R&R at 35, Dkt. No. 65.) In addition to the fact that Rivas had received all available medical records relating to the victim's death and slides prepared by the medical examiner's office in March 1998-a package that did not include "brain slides"-Rivas stated in an April 23, 1998 letter to his attorney that "he truly wasn't surprised to learn that the [medical examiner's office] didn't have any brain slides." (See id. (internal quotation marks and citation omitted).) Based on these and similar findings, as well as the relevant portions of the record, the court concurs with Judge Peebles that "[Rivas] was plainly aware that no such slides existed well prior to May of 1999," and was therefore aware of the factual predicate underlying his claim of false testimony based on the slides. (Id.)
Finally, Judge Peebles was also correct in finding the expert opinion evidence as to Dr. Mitchell's time-of-death estimate was insufficient to constitute new evidence. As Judge Peebles explained in the R&R, the opinion evidence offered "cannot properly be regarded as new evidence" because it simply "derives from [the] review of Dr. Mitchell's trial testimony, as well as of the same materials relied upon by Dr. Mitchell in arriving at his conclusions regarding the victim's time of death." (Id. at 32-33 (citing Serrano v. Walsh, No. 04CIV8615, 2005 WL 3340578, at *10 (S.D.N.Y. Dec. 9, 2005) ("Newly discovered evidence is, by definition, incapable of discovery through due diligence before or during trial. Evidence in existence at an earlier date, though perhaps unknown to a petitioner, cannot later be described as newly discovered.") (internal quotation marks and citation omitted).) And, as Judge Peebles further noted, "even if [the] opinions are based in part on information developed after trial, [the expert] had available to him, as did the petitioner, all of the materials leading to the formulation of his opinions well prior to May 8, ...