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Senora L. Bolarinwa v. Sabina Kaplan

June 25, 2012

SENORA L. BOLARINWA, PETITIONER,
v.
SABINA KAPLAN, SUPERINTENDENT, RESPONDENT.



DECISION AND ORDER

I. INTRODUCTION

This matter comes before the Court following a Report-Recommendation filed on May 8, 2012 by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Dkt. No. 90 ("Report Recommendation"). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by pro se Petitioner Senora Bolarinwa ("Petitioner"), which were filed May 29, 2012. Dkt. No. 91 ("Objections").

II. BACKGROUND

The Court presumes the parties' familiarity with the facts and allegations underlying the instant action and recounts the facts only to the extent necessary to decide this Petition for habeas relief for Petitioner's state court conviction pursuant to 28 U.S.C. § 2254. Dkt. No. 1 ("Petition"). For additional background, reference is made to the Petition filed on October 22, 2007, the Report-Recommendation issued by Judge Peebles on May 8, 2012, and the Decision and Order issued by the Court on October 21, 2011. Petition; Report-Rec.; Dkt. No. 74 ("Order"). Petitioner objects to: the application of Federal Rule of Civil Procedure 72(b) as it affects the Court's evaluation of her Petition; the constitutionality of the Antiterrorism and Effective Death Penalty Act; and the dismissal of her Petition on the grounds that it is untimely. See Obj. at 50-51.

III. STANDARD OF REVIEW

The Court is to "make 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). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error." Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)) (citations and quotations omitted); see alsoBrown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge . . . 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). The Court has considered the Objections and reviewed the record and has determined that the Report-Recommendation should be approved and adopted in its entirety for the reasons stated herein.

IV. DISCUSSION

A. Promptness of Proceedings and Applicability of Rule 72 Petitioner objects that Judge Peebles incorrectly applies Rule 72(b). See FED. R. CIV. P. 72(b)(1); Obj. at 51. Rule 72(b) "does not extend to habeas corpus petitions, which are covered by the specific rules relating to proceedings under Sections 2254 and 2255 of Title 28 [of the U.S. Code.]" See FED. R. CIV. P. 72(b)(1). Therefore, because Petitioner is in state custody, 28 U.S.C. § 2254 applies in this case.

Despite her objection to the applicability of Rule 72, Petitioner also objects that Magistrate Judge Peebles failed to "promptly conduct the required proceedings" as required by Rule 72 because it has been over two years since the matter was remanded by the Court of Appeals for consideration of Petitioner's equitable tolling claim. See FED. R. CIV. P. 72(b)(1); Obj. at 50; Dkt. No. 23. The Court notes that Rule 72 does not apply to habeas petitions and that the statutory text of 28 U.S.C. § 2254 -- unlike Rule 72 -- does not contain a requirement of promptness. Therefore, the Court rejects Petitioner's objection because she advances no argument beyond a recitation of Rule 72 to support her promptness claim and cannot advance such a claim under § 2254.

B. Constitutionality of Antiterrorism and Effective Death Penalty Act

Petitioner additionally objects to the use of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), arguing that the Act unconstitutionally restricts the power of federal courts to grant habeas relief to state prisoners. Obj. at 51. The Court finds this argument to be without merit. In addressing similar challenges, courts have found that the AEDPA does not create an unreasonable barrier that prevents state prisoners from petitioning federal courts for habeas relief or otherwise render habeas relief an ineffective test of detention. See, e.g., Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000); Rodriguez v. Artuz, 990 F. Supp. 275, 282 (S.D.N.Y. 1998) aff'd, 161 F.3d 763 (2d Cir. 1998) ("The AEDPA's statute of limitations does not create an unreasonable barrier preventing state prisoners from petitioning the federal courts for habeas relief."); cf. United States v. Lesch, No. 3:02-CR-401, 2009 WL 4110755, at *2 (N.D.N.Y. Nov. 20, 2009) (holding that the one year statute of limitations for habeas petitions for federal prisoners is not unconstitutional). In her Objections, Petitioner has failed to present any novel arguments to lead the Court to conclude otherwise. Cf. Tinsley v. Woods, No. 08 CV 1332, 2011 WL 447, at *3 (S.D.N.Y. Sept. 28, 2011) (rejecting petitioner's challenge because "[n]o court has held AEDPA to be unconstitutional in reliance on any of these opinions. And no decision the Court could find has granted relief based upon the argument petitioner advances.").

C. Timeliness

Applications for writs of habeas corpus by individuals who are in custody pursuant to state court judgments are subject to AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). Although this period may be tolled, tolling only pauses the one-year limitations period; it does not restart it. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).

Unless it were tolled, Petitioner's one-year limitation period began to run once her conviction became final on or about November 12, 1999 and expired on November 12, 2000. See 28 U.S.C. § 2244(d)(1); Dkt. No. 5 at 3. Therefore, in order for the present action -- which commenced in 2007 -- to be timely, the one-year limitation period must have been tolled. See 28 U.S.C. § 2244(d)(1); Dkt. No. 5 at 3. Petitioner first objects to the finding that her Petition is not timely and argues that her CPL § 440.10 proceeding and her petition for a writ of error coram nobis tolled the statute of limitations. Obj. at 54-55. In addition, Petitioner argues that her mental illness permits the ...


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