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Blair v. Heath

United States District Court, Second Circuit

November 8, 2013

NASCIMENTO BLAIR, Petitioner,
v.
PHILLIP D. HEATH, Superintendent of Sing Sing Correctional Facility, Respondent.

MEMORANDUM DECISION

VINCENT L. BRICCETTI, District Judge.

Before the Court is Magistrate Judge George A. Yanthis's Report and Recommendation ("R&R"), dated July 16, 2013, on petitioner Nascimento Blair's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Judge Yanthis recommended the Court dismiss the petition as untimely filed. With the following exceptions, the Court adopts the R&R. The petition is DISMISSED.

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 within 14 days after being served with a copy of the recommended disposition, Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1), or within 17 days if the parties are served by mail. See Fed.R.Civ.P. 6(d).

When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3). The clearly erroneous standard applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. See Ortiz v. Barkley , 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008).

The objections of parties appearing pro se, such as petitioner herein, are generally accorded leniency, Stokes v. Miller , 216 F.Supp.2d 169, 171 (S.D.N.Y. 2000), and should be construed "to raise the strongest arguments that they suggest." Dunn v. Sears , 561 F.Supp.2d 444, 451 (S.D.N.Y. 2008).

II. Petitioner's Objections

Petitioner objects to the R&R on the grounds that the magistrate judge erred (i) by not tolling the limitation period while petitioner sought leave from the New York Court of Appeals to appeal the denial of his coram nobis application, and thus miscalculating the time period petitioner had left to file his habeas petition; and (ii) by improperly applying the equitable tolling doctrine to find his habeas petition was timely filed.

Although the Court determines that petitioner's time to petition for habeas relief was tolled while he sought leave to appeal the denial of his coram nobis application, because his habeas petition was nonetheless untimely, the Court adopts the recommendation that the petition be dismissed.

Familiarity with the factual and procedural background of this case is presumed; the Court, therefore, recites only those facts necessary for resolution of petitioner's objections.

A. Tolling During Appeal of Denial of Coram Nobis Motion

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a "1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). Petitioner does not dispute that the one-year period of limitation began to run when his judgment of conviction became final on January 24, 2010, which was thirty days after he received notice of the Appellate Division, Second Department's decision affirming petitioner's judgment of conviction. See 28 U.S.C. § 2244(d)(1)(A); see also N.Y. Crim. Proc. Law § 460.10(5)(a). Petitioner also does not dispute that his petition would, therefore, be time-barred as of January 24, 2011, unless the limitation period was tolled by statutory or equitable considerations. Rather, petitioner disputes the amount of time during which the limitation period should have been told.

The Court concludes the limitation period was statutorily tolled from the date petitioner filed his writ of error coram nobis (July 12, 2010) through the date the Court of Appeals denied him leave to appeal the Second Department's denial of his coram nobis application (March 3, 2011).

Filing an application for a writ of error coram nobis tolls the limitation period under the AEDPA. 28 U.S.C. § 2244(d)(2); Smith v. McGinnis , 208 F.3d 13, 16 (2d Cir. 2000). Thus, the ...


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