The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:*fn1
Vincent Hurley ("Hurley" or "Petitioner") petitions this Court to vacate his sentence pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Report and Recommendation of Hon. Theodore H. Katz, United States Magistrate Judge, is adopted and the petition is denied.
On October 17, 2007, pro se Petitioner Vincent Hurley filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that: (1) the District Attorney's Office improperly withheld material evidence at trial in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) Petitioner was denied effective assistance of trial counsel; (3) Petitioner was denied ineffective assistance of appellate counsel; (4) the trial court improperly denied Petitioner's motion for severance; and (5) the trial court improperly received a shotgun into evidence. Petitioner filed an amended petition on February 17, 2009. On July 1, 2009, the government moved to dismiss, on the theory that the petition was procedurally barred as untimely under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1) ("AEPDA"), which requires habeas corpus petitioners to file no later than one year after conviction. Petitioner filed a Traverse to the Motion to Dismiss on August 24, 2009, arguing that he had timely filed-and even if he had not, that the statute of limitations did not apply to him.
On September 1, 2009, this Court referred the case to Magistrate Judge Katz for a Report and Recommendation ("R&R"). In his R&R, Magistrate Judge Katz recommends the dismissal of the petition because (1) Petitioner's action is time-barred; and (2) neither statutory nor equitable tolling of the statute of limitations is available to Petitioner. In Petitioner's Reply and Objection to the R&R ("Reply to the R&R"), he concedes that statutory tolling is unavailable, but maintains that equitable tolling is appropriate because of his "actual innocence." Petitioner also argues further that equitable tolling applies to his situation because the prosecution "lulled" him into inaction. This Court adopts Magistrate Judge Katz's R&R and denies the petition as time-barred.
The facts that follow are described more fully in Judge Katz's R&R, which is incorporated herein by reference. On July 5, 1989, Petitioner was convicted following a jury trial in New York State Supreme Court, New York County, on four counts: (1) Attempted Assault in the First Degree; (2) Criminal Possession of a Weapon in the Second Degree; (3) Criminal Possession of a Controlled Substance in the Fourth Degree; and (4) Criminal Trespass in the First Degree.*fn2 The Court sentenced Petitioner to five terms of 20 years to life and two terms of 3 1/2 to 7 years, all to run concurrently. The Appellate Division affirmed Petitioner's conviction on March 31, 1994, and the New York Court of Appeals denied Petitioner leave to appeal on June 28, 1994.
Between 1994 and 1997, Petitioner filed three motions to vacate his conviction pursuant New York Criminal Procedure Law section 440 as well as two motions for a writ of error coram nobis. Petitioner filed no further motions until October 2002, when he moved to renew one of his prior section 440 motions. During this interim period, however, he submitted two Freedom of Information Law ("FOIL") requests to the New York City Police Department and New York County District Attorney's Office, in 2000 and 2001, respectively, in an effort to obtain evidence that could help overturn his conviction. As Magistrate Judge Katz noted in his R&R, the Government has successfully argued that each of Petitioner's post-conviction motions about Brady evidence is meritless and that the "newly discovered" evidence does not support Petitioner's actual innocence claim.
Petitioner's central claim is that the statutory period should be equitably tolled under the actual innocence doctrine. In support of this theory, Petitioner relies heavily on a four-page report he obtained through a FOIL request on September 12, 1990 ("Honeyman Report"), which includes a one-page ballistics summary of the weapon Petitioner was convicted of possessing. At the end of the ballistics summary, Detective Honeyman noted that the weapon was "processed with negative results"-and Petitioner claims that these unknown "negative results" could potentially prove his innocence. Petitioner further alleges that the prosecution withheld the Honeyman Report and other information in violation of Brady, and that together these facts justify the circumvention of the one-year statute of limitations. The Government filed a Motion to Dismiss on July 1, 2009 on the basis that the petition had been untimely filed. On July 2, 2009, this Court sent Petitioner a letter requiring him to respond why the petition should not be dismissed as untimely. On August 27, 2009, Petitioner submitted a Traverse to the Motion to Dismiss in which he maintains his innocence and continues to allege that the prosecution withheld Brady evidence central to his claim.
In the attached R&R, Magistrate Judge Katz recommends the dismissal of the Petition as untimely. Judge Katz explains carefully and thoroughly why statutory and equitable tolling are both unavailable to Petitioner: Statutory tolling is foreclosed because the one-year limitations period has expired by over a decade, and Petitioner has failed to meet the high bar necessary to justify equitable tolling. In his Reply to the R&R, Petitioner more clearly articulates his claims of actual innocence and withholding of Brady evidence; Petitioner also raises a new claim-that he was "lulled" into inaction by the Government's withholding of evidence.
A district court has discretion to "accept, reject, or modify" the findings and recommendations of a magistrate judge, 28 U.S.C. § 636(b)(1), and may accept such findings and recommendations so long as there is no "clear error on the face of the record." Wilds v. United Parcel Service, Inc., 262 F. Supp. 163, 169 (S.D.N.Y. 2003). A magistrate judge's findings need not be accorded presumptive weight-a district court is "free to follow it or wholly to ignore it," Mathews v. Weber, 423 U.S. 261, 271 (1976), and may even "conduct the review [of the case] in whole or in part anew." Id. In other words, the court may "give the magistrate's recommendation whatever weight the judge decides it merits." Id. at 273. Finally, a district court is specifically authorized to apply de novo review to "those issues [in the magistrate judge's report] upon which the parties raised objections." Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998).
In this case, Judge Katz thoroughly responded to the statutory tolling claim and explains why Petitioner's equitable tolling claims are normally precluded. However, this Court examines Petitioner's "actual innocence" claim de novo in order to apply the four-step test required by the Second Circuit. Additionally, insofar as Petitioner raised arguments in his ...