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Charles Spells, Pro Se v. William Lee

July 23, 2012

CHARLES SPELLS, PRO SE PETITIONER,
v.
WILLIAM LEE,
RESPONDENT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION

On April 1, 2011, Charles Spells ("petitioner") filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court conviction on one count of Murder in the Second Degree and one count of Criminal Possession of a Weapon in the Third Degree. (See ECF No. 1, Petition.) Specifically, petitioner claims that the prosecution failed to disprove his justification defense beyond a reasonable doubt and that the verdict was against the weight of the evidence. (Id. at 2.) On January 30, 2012, petitioner filed a motion (1) to amend his petition to add claims of ineffective assistance of trial counsel and of appellate counsel, and (2) to stay his petition until he is able to exhaust state court remedies for these additional claims. (See ECF No. 15-1, Petitioner's Affirmation in Support of Motion ("Pet. Mem.").) Respondent opposed petitioner's motions in a submission filed on February 9, 2012. (See ECF No. 16, Respondent's Memorandum of Law ("Resp't Opp'n.").)

This court referred petitioner's motions to amend and to stay to Magistrate Judge Joan M. Azrack for a Report and Recommendation. On May 23, 2012, Magistrate Judge Azrack issued a Report and Recommendation recommending the denial of petitioner's motions. (See ECF No. 18, Report & Recommendation ("R&R").)*fn1 On June 5, 2012, petitioner filed a timely objection to the Report and Recommendation (see ECF No. 20, Petitioner's Objection to R&R ("Obj.")), and no response to the objection has been received from respondent. Having reviewed Magistrate Judge Azrack's Report and Recommendation, the record before the court, and the relevant case law, for the reasons set forth below, the court (1) modifies the Report and Recommendation and grants petitioner's motion to amend with respect to his ineffective assistance of appellate counsel claim, and (2) adopts that portion of the Report and Recommendation that recommends denial of petitioner's motions with respect to his ineffective assistance of trial counsel claim.

STANDARD OF REVIEW

In reviewing a Report and Recommendation, the district 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); accord Fed. R. Civ. P. 72(b)(3). To the extent a party makes specific and timely written objections to a magistrate judge's findings and recommendations, the district court must review de novo "those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1)(C); accord Fed. R. Civ. P. 72(b)(3). Where "the objecting party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report and recommendation strictly for clear error." Zaretsky v. Maxi-Aids, Inc., No. 10-CV-3771, 2012 U.S. Dist. LEXIS 84291, at *4 (E.D.N.Y. June 18, 2012) (internal quotation marks omitted); accord Soley v. Wasserman, 823 F. Supp. 2d 221, 228 (S.D.N.Y. 2011); see also Healing Power, Inc. v. Ace Cont'l Exps., Ltd., No. 07-CV-4175, 2008 U.S. Dist. LEXIS 83021, at *2-3 (E.D.N.Y. Oct. 17, 2008) (finding general objection to report and recommendation not specific enough to constitute an objection under Federal Rule of Civil Procedure 72(b)). Similarly, when a party makes no objection to a portion of a report and recommendation, the court reviews that portion only for clear error. Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).

The court is mindful that "that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., No. 06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at *2-3 (S.D.N.Y. July 21, 2008) (internal quotation marks omitted); see Evans v. Ericole, No. 06-CV-3684, 2008 U.S. Dist. LEXIS 91556, at *5 (S.D.N.Y. Nov. 10, 2008) (reviewing report and recommendation for clear error where pro se plaintiff made only general objection).

Here, petitioner does not make any specific objections to the Report and Recommendation or the conclusions of law underlying Magistrate Judge Azrack's recommendation to deny his motions, namely that his ineffective assistance of appellate counsel claim does not relate back to his original petition and is time-barred, and that petitioner has not shown good cause for failing to exhaust his ineffective assistance of trial counsel claim. Rather, petitioner argues the merits of the claims in his original petition as well as his ineffective assistance of counsel claims (see Obj. at 2-4), which are irrelevant to the grounds on which the Report and Recommendation was decided. Indeed, petitioner only appears to object to the Report and Recommendation on the grounds that "it is leaning more to the prosecutor's side" and that the "Magistrate Judge needs to understand that these prisoner's [sic] aren't lawyers and let alone have college degrees [sic]." (Obj. at 4.)

Accordingly, after construing petitioner's pro se submissions liberally, the court finds that petitioner's objections to the Report and Recommendation are general and conclusory and that the court is thus only required to review the entire Report and Recommendation for clear error. Notwithstanding this conclusion, the court finds that it would have reached the same result had it conducted a de novo review of the Report and Recommendation.

DISCUSSION

The Report and Recommendation found that petitioner's motion to amend should be denied because (1) the ineffective assistance of appellate counsel claim does not relate back to the original petition and is thus time-barred; and (2) the ineffective assistance of trial counsel claim has not been exhausted in state court. Furthermore, the Report and Recommendation found that petitioner's motion to stay should be denied because he has failed to establish good cause for failing to exhaust his ineffective assistance of trial counsel claim. Each of these determinations will be discussed in turn.

I.The Timeliness of Petitioner's Ineffective Assistance Claims

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations for a petitioner to file for habeas relief from a state court judgment. 28 U.S.C. § 2244(d)(1). Pursuant to 28 U.S.C. § 2244(d)(1)(A), the limitations period begins to run from the date on which "the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. Here, petitioner's state court judgment became final on Monday, March 29, 2010, ninety days after December 28, 2009, the date the New York Court of Appeals in People v. Spells, 13 N.Y.3d 910 (N.Y. 2009) denied leave to appeal the Appellate Division's affirmance of petitioner's conviction.*fn2 See Rivera v. Cuomo, 649 F.3d 132, 139 (2d Cir. 2011) ("For habeas purposes, a New York state-court conviction becomes final 90 days after the New York Court of Appeals denies leave to appeal, which is when the petitioner's time to apply for a writ of certiorari to the United State Supreme Court expires.").

On March 24, 2011, almost a year after his state court judgment became final but five days prior to the expiration of the one-year statute of limitations, petitioner filed a petition for a writ of error coram nobis in the Appellate Division alleging ineffective assistance of appellate counsel, which tolled the one-year AEDPA statute of limitations. See Kevilly

v. Connell, No. 06-CV-5672, 2009 U.S. Dist. LEXIS 22414, at *12 (E.D.N.Y. Mar. 19, 2009) ("[T]he time during which a petitioner filed writs of coram nobis, or other post-conviction applications to the state court, is not counted for statute of limitations purposes and, thus, tolls the clock." (citing 28 U.S.C. § 2244(d)(2))). The original habeas petition was subsequently filed on April 1, 2011. Although the Appellate Division denied the coram nobis petition on October 11, 2011, People v. Spells, 88 A.D.3d 821 (N.Y. App. Div. 2d Dep't 2011), petitioner applied to the Court of Appeals for leave to appeal the denial of his coram nobis petition. (Obj. at 2); see N.Y. Crim. Proc. Law § 450.90(1). On July 12, 2012, the Court of Appeals denied leave to appeal the Appellate Division's denial of the coram nobis petition. (See ECF No. 21, Respondent's Letter dated July 23, 2012 (attaching Court of Appeals order denying leave to appeal).) The one-year statute of limitations was therefore tolled between March 24, 2011, the date petitioner filed his coram nobis petition, and July 12, 2012, the date the Court of Appeals denied leave to appeal the denial of the coram nobis petition. See Bryant v. Graham, No. ...


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