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Ozsusamlar v. United States

United States District Court, Second Circuit

August 29, 2013

UNITED STATES, Respondent.


KIMBA M. WOOD, District Judge.

Pro se petitioner Mustafa Ozsusamlar ("Ozsusamlar") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255, vacating a judgment of conviction entered on February 1, 2007 and modified on July 18, 2008. Ozsusamlar filed an initial § 2255 petition in April 2009, which the Court denied on January 7, 2010. Ozsusamlar v. United States, No. 09 Civ. 3501, 2010 WL 69106 (S.D.N.Y. Jan. 7, 2010) (Wood, J.). Oszusamlar now moves to amend his original petition to add two additional claims for relief. [Civ. Dkt. No. 1].

On July 26, 2012, Magistrate Judge Henry B. Pitman issued a Report and Recommendation (the "Report"), which recommends denying Oszusamlar's motion for leave to amend because his new claims are time barred. [Civ. Dkt. No. 18]. Ozsusamlar timely filed objections to the Report on September 25, 2012. [Civ. Dkt. No. 22]. While his motion for leave to amend was pending, Ozsusamlar also filed a "Motion to Compel or in the Alternative Motion for Summary Judgment, " [Civ. Dkt. No. 25], and a "Motion for Recusal of Trial Judge, " [Civ. Dkt. No. 26].

For the reasons stated below, the Court ADOPTS the Report in its entirety, and DENIES Ozsusamlar's motions for leave to amend, to compel and for recusal.


Oszusamlar was convicted for his role in a scheme to obtain fraudulent driver's licenses for illegal immigrants.[1] See Ozsusamlar, 2010 WL 69106, at *1. In May 2005, after a two-week trial, a jury convicted Oszusamlar on six counts, including bribery of a public official, fraud in connection with identification documents, and transportation of illegal aliens. Id. The Court sentenced him to a term of 235 months incarceration plus three years supervised release.[2] Id. at *2. Ozsusamlar timely appealed his conviction on the ground that the Court erred in denying his motion to suppress evidence seized during his arrest. Id. On May 22, 2008, the Second Circuit Court of Appeals affirmed Oszusamlar's conviction without issuing a written opinion. Id. On March 9, 2009, Ozsusamlar timely filed a § 2255 motion to correct, set aside, or vacate his sentence. Id. On January 10, 2010, this Court denied Oszusamlar's original § 2255 motion and declined to issue a certificate of appealability. Id. Oszusamlar again timely appealed.

On April 15, 2010, while his § 2255 appeal was pending, Ozsusamlar filed a motion requesting leave to file a second § 2255 petition in the District Court. [Crim. Dkt. No. 116]. On June 10, 2010, this Court denied Ozsusamlar's request and held that Ozsusamlar needed permission from the Second Circuit in order to file a successive habeas petition. [Civ. Dkt. No. 6]. On July 1, 2010, Oszusamlar requested such permission from the Second Circuit. [App. Dkt. No. 2 (No. 10-2609)]. The Second Circuit ultimately denied Oszusamlar's appeal of the denial of his original habeas motion, [App. Dkt. No. 29 (No. 10-497)], but held that the Court improperly dismissed Oszusamlar's second § 2255 petition because it was filed before the appeal of his original petition was finalized, [App. Dkt. No. 14 (No. 10-2609)]. Accordingly, the Second Circuit transferred the case back to this Court for "whatever further action" the Court deemed appropriate.

Ozsusamlar filed the instant motion, seeking leave to file a second habeas petition, on August 16, 2010. [Civ. Dkt. No. 1]. This motion is virtually identical to the July 1, 2010 motion Ozsusamlar filed in the Second Circuit. ( See Mem. of Law in Opp'n 11 n.5 [Crim. Dkt. No. 122]). In its opposition, the Government expressed concern over whether this motion constituted a "second or successive" application for relief, which first requires certification by the Second Circuit. On March 11, 2011, Judge Pitman ruled that, due to its timing, the instant motion-like the July 1, 2010 motion-does not constitute a second or successive application for relief, but rather seeks to amend the original §2255 petition to add two additional claims. [Civ. Dkt. No. 8].


Oszusamlar's original petition sought to vacate his sentence on the grounds of ineffective assistance of counsel at sentencing, an unreasonable sentence, violations of his Sixth Amendment right to a speedy trial, and a violation of his Miranda rights. Oszusamlar, 2010 WL 69106, at *2. He now seeks to add two additional claims for ineffective assistance of counsel at trial. The Report recommends dismissing Oszusamlar's motion for leave to amend because the new claims do not relate back to the original petition, and are thus time-barred. The Court agrees with Judge Pitman's conclusions and adopts the Report in its entirety.

A. Standard of Review

A district court reviewing a magistrate judge's report and recommendation "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)(C); Fed.R.Civ.P. 72(b)(2). The court must review de novo those portions of a magistrate judge's disposition to which a party has submitted "specific written objections." Fed.R.Civ.P. 72(b)(2)-(3); see also United States v. Male Juvenile, 121 F.3d 34, 37 (2d Cir. 1997) (noting that a party's failure to timely object to a magistrate's rulings may "operate as a waiver of any further judicial review of the decision"). To the extent that portions of the report are not objected to, or objected to with "conclusory or general arguments" or arguments that "simply reiterate[] th[ose] original[ly] presented to the magistrate judge, " the court will review the magistrate judge's analysis "strictly for clear error." IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865, 2008 WL 4810043, at *1 (S.D.N.Y. Oct. 31, 2008) (Swain, J.); see also Fed.R.Civ.P. 72(b) advisory comm. note.

"The objections of parties appearing pro se are generally accorded leniency' and should be construed to raise the strongest arguments that they suggest.'" Pantoja v. N.Y. State Div. & Bd. of Parole, Dist. Court, No. 11 Civ. 9709, 2013 WL 865905, at *1 (S.D.N.Y. Mar. 8, 2013) (Seibel, J.) (quoting Milano v. Astrue, No. 05 Civ. 527, 2008 WL 4410131, at *2, 24 (S.D.N.Y. Sept. 26, 2008) (Wood, J.)). Even a pro se petitioner's objections, however, "must be specific and clearly aimed at particular findings in the magistrate's proposal" to prevent "a second bite at the apple by simply relitigating a prior argument." Id. (quoting Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (Swain, J.)).

Construed leniently, Ozsusamlar's only specific objection to the Report is that, contrary to Judge Pitman's findings, his new claims relate back to his original petition and he should thus be permitted leave to amend. (Pet'r's Objections 9 [Dkt. No. 22]). That portion of the Report will be reviewed de novo, and the Court will take into account "the full factual record in this litigation... as well as the Report and applicable ...

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