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Tuitt v. Martuscello

United States District Court, Second Circuit

October 3, 2013

BRIAN TUITT, Petitioner,
v.
SUPERINTENDENT MARTUSCELLO, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

CATHY SEIBEL, District Judge.

Before the Court are Petitioner Brian Tuitt's Objections, filed September 4, 2013, (Doc. 54), to the Report and Recommendation ("R&R") of United States Magistrate Judge Paul E. Davison, dated August 2, 2013, (Doc. 53), recommending denial of Petitioner's Petition pursuant to 28 U.S.C. § 2254, (Doc. 2). Judge Davison found that the Petition was untimely and that Petitioner neither qualified for equitable tolling nor satisfied the actual innocence gateway that might excuse the delay. Familiarity with the prior proceedings, the R&R, and the issues presented is presumed.

I. 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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific, " "written, " and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed.R.Civ.P. 72(b)(2); accord 28 U.S.C. § 636(b)(1). A district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1); see Fed.R.Civ.P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985); Fed.R.Civ.P. 72 advisory committee's note (b). In addition, "[t]o the extent... that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008)[1]; accord Evans v. Ericole, No. 06-CV-3684, 2008 WL 4861783, at *2 (S.D.N.Y. Nov. 10, 2008) (reviewing report and recommendation for clear error where pro se plaintiff made only general objection); Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) ("Reviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition.") (internal quotation marks omitted).

The objections of parties appearing pro se are "generally accorded leniency" and should be construed "to raise the strongest arguments that they suggest." Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131, at *2, 24 (S.D.N.Y. Sept. 26, 2008) (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 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (internal quotations marks omitted).

II. Discussion

A. Equitable Tolling

1. Derelictions of Trial Counsel

Petitioner objects first that Judge Davison, in declining to find Petitioner entitled to equitable tolling for his untimely Petition, did not appreciate that Petitioner's trial counsel failed to file a notice of appeal. (Objections 3-6.) To the contrary, the R&R acknowledges Petitioner's argument in this regard. ( See R&R, at 17-18.) It is Petitioner who does not seem to appreciate that the issue here is not whether his trial counsel was asked to file a notice of appeal and failed to do so; rather, the issue is what, if anything, prevented Petitioner from filing a timely habeas petition. Trial counsel's alleged derelictions do not relate to, let alone justify, Petitioner's failure to file his habeas petition within the allotted time.

The cases Petitioner cites regarding counsel failures in the habeas context are inapposite. In Restrepo v. Kelly, 178 F.3d 634 (2d Cir. 1999), for example, the issue was whether trial counsel's alleged failure to file a notice of appeal, along with his false assurances to the petitioner that the appeal was in progress, could amount to cause for, and prejudice from, the procedural default of having failed to file a timely appeal in state court; the case did not discuss equitable tolling or have anything to do with the timeliness of a subsequent habeas petition. Fleming v. Evans, 481 F.3d 1249 (10th Cir. 2007), involved a situation in which habeas counsel allegedly affirmatively misled the petitioner into thinking his petition had been filed and was pending, and the petitioner, although making diligent inquiry, did not discover the deception until after his time to file a habeas petition had run. Nothing similar is alleged here; indeed, Petitioner was aware that his trial counsel had not filed a notice of appeal at least as of May 2007, when he applied for leave to file a late notice, and nevertheless the instant Petition was not filed until January 2012. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562 (2010) (equitable tolling requires both extraordinary circumstances that prevented timely filing and diligent pursuit of rights); Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003) (requiring "reasonable diligence throughout the period [Petitioner] seeks to toll").

In short, it is not that Judge Davison did not know that egregious attorney misconduct can toll the limitations period under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996); rather, it is that Petitioner alleged no such misconduct in the approximately five-year period between learning that counsel had not filed a notice of appeal and filing the instant Petition, nor otherwise explained what prevented him, in the exercise of reasonable diligence, from timely filing the Petition.

Petitioner next argues that the R&R ignored that he received ineffective assistance of counsel at trial. (Objections 6-7.) Again, Judge Davison simply and correctly regarded that allegation irrelevant to the question at hand, which was whether the untimely filing of the Petition should be excused.

2. Mental Health

The next objection is that Judge Davison did not understand Petitioner's post-traumatic stress disorder ("PTSD"). ( Id. 7.) To the contrary, Judge Davision carefully considered whether Petitioner's mental health condition might warrant equitable tolling of his time to file. ( See R&R, at 14-17.) The Magistrate Judge recognized, however, that the documentation Petitioner submitted established neither that he suffered from PTSD for the entire period he sought to toll, nor that the PTSD prevented him from timely filing. See, e.g., Barrett v. United States, No. 11-CV-1121, 2013 WL 4446546, at *3 (D. Conn. Aug. 20, 2013) (petitioner must allege not just existence of condition but also show that it rendered him unable to pursue his rights during relevant period); Rhodes v. Senkowski, 82 F.Supp.2d 160, 173 (S.D.N.Y. 2000) (same). The Magistrate Judge further noted that Petitioner had, during the 2007-2012 time frame, aggressively ...


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