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Shannon Ryan v. Patrick Griffin

December 30, 2011

SHANNON RYAN, PETITIONER,
v.
PATRICK GRIFFIN, RESPONDENT.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Magistrate Judge Baxter's October 6, 2011 Report and Recommendation, in which he recommends that the Court dismiss Petitioner's petition for a writ of habeas corpus as untimely. Neither party filed objections to Magistrate Judge Baxter's Report and Recommendation.

II. BACKGROUND

On March 29, 2010, Petitioner filed a petition for a writ of habeas corpus. See Dkt. No. 1. In his application, Petitioner challenges an April 13, 2005 judgment of conviction from the Rensselaer County Court. See id. at ¶¶ 1-2. Petitioner was convicted after a jury trial of Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Weapon in the Third Degree, Attempted Assault in the Second Degree, and Reckless Endangerment in the First Degree. See id. at ¶¶ 3-6; Dkt. No. 15-21. Petitioner was sentenced to a determinate term of fifteen-years imprisonment and five years of post-release supervision. See id.

On October 17, 2005, Petitioner filed a motion to vacate his conviction in Rensselaer County Court pursuant to New York Criminal Procedure Law § 440.10. See id. at ¶ 11(b); Dkt. No. 15-1. The Rensselaer County Court denied this motion on March 29, 2006. See id.; Dkt. No. 15-2. On December 20, 2007, the Third Department denied the consolidated appeals of Petitioner's conviction and the denial of his section 440.10 motion. See id. at ¶ 9(a)-(d); People v. Ryan, 46 A.D.3d 1125, 1128 (3d Dep't 2007). On June 2, 2008, the New York State Court of Appeals denied Petitioner leave to appeal. See id. at ¶ 9(e); People v. Ryan, 10 N.Y.3d 939 (2008).

Thereafter, on July 17, 2009, Petitioner filed an application for a writ of error coram nobis. See id. at ¶ 11(c); Dkt. No. 15-8. On September 3, 2009, the Appellate Division, Third Department denied the application. See id.; Dkt. No. 15-11. On January 22, 2010, the New York State Court of Appeals denied leave to appeal. See Dkt. No. 15-16. On September 15, 2010, after Petitioner filed the petition presently before the Court, Petitioner filed a second motion to vacate his conviction. See Dkt. No. 15-17. The Rensselaer County Court denied the motion on December 14, 2010, and the Appellate Division, Third Department denied leave to appeal on April 5, 2011.

In his form petition, Petitioner asserts that he is entitled to relief because (1) he received ineffective assistance of trial counsel; (2) the trial court failed to charge the jury with an intoxication defense; (3) the evidence was legally insufficient to sustain a conviction on any of the charges; and (4) he received ineffective assistance of appellate counsel. See id. at ¶ 12(A)-(C). In his response to the petition, Respondent argues that the petition is untimely, that it contains unexhausted and procedurally defaulted claims, and that the claims fail on the merits. See Dkt. No. 14.

In a Report and Recommendation dated October 6, 2011, Magistrate Judge Baxter recommended that the Court dismiss the petition as untimely. See Dkt. No. 19 at 3. Specifically, Magistrate Judge Baxter found that, through statutory tolling, Petitioner had until March 8, 2010 to file his petition. See id. at 5. As such, Magistrate Judge Baxter found that the petition was twenty-one days late. See id. Finally, Magistrate Judge Baxter found that Petitioner failed to make a showing that would merit the equitable tolling of the statute of limitations. See id. at 5-12.

III. DISCUSSION

A. Standard of review

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the court 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).

A litigant's failure to file objections to a magistrate judge's report and recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and recommendation does not waive his right to ...


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