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Williams v. Levally

United States District Court, S.D. New York

March 31, 2014

WILLIE M. WILLIAMS, Petitioner,
v.
SUPERINTENDENT THOMAS LEVALLY, Respondent.

Willie M. Williams, Fallsburg, NY, Pro se Petitioner.

John James Sergi, Esq., Lisa Marie Denig, Esq., Westchester County District Attorney's Office, White Plains, NY, Counsel for Respondent.

ORDER ADOPTING REPORT & RECOMMENDATION

KENNETH M. KARAS, District Judge.

I. Background

Petitioner filed a habeas petition ("Petition") in November 2012, seeking relief under 28 U.S.C. § 2254.[1] (See Pet. (Dkt. No.2).) Respondent filed a Memorandum of Law opposing the Petition in March 2013. (See Dkt. No. 11.) In June 2013, Petitioner filed a Motion seeking summary judgment on issues that he claims he raised in his Petition but that Respondent did not address in his Memorandum. (See Petr's Aff. (Dkt. No. 30) ¶ 8.) In the alternative, Petitioner seeks leave to amend his Petition to add twelve claims for relief. (See id.; see also Am. Appl. for Habeas Relief ("Am. Pet.") (Dkt. No. 29).)

On February 27, 2014, Magistrate Judge Smith issued a Report & Recommendation ("R&R") wherein she recommended that the Court grant Petitioner's Motion in part and deny it in part. (See Report & Recommendation ("R&R") (Dkt. No. 39) 33.) With respect to Petitioner's Motion for Summary Judgment, Magistrate Judge Smith recommended that the Court deny it based on her interpretation of the Petition "never [to have] asserted... the claims upon which [Petitioner] now seeks summary judgment." (Id. at 19 (internal quotation marks omitted).) With respect to Petitioner's Motion To Amend his Petition, Magistrate Judge Smith recommended that Petitioner be granted leave to add two claims, but she also recommended that the Court deny Petitioner leave to add the other 10 claims. (Id. at 33.) Of the latter claims, she found that amendment would be futile because one was without merit, (id. at 26), seven would be untimely and would not relate back to claims timely raised in the original Petition, (id. at 22-23, 30, 32-33), and two would be duplicative of claims already raised, (id. at 31).[2]

Petitioner filed objections on March 14, 2014. (See Resp. to R&R ("Objs.") (Dkt. No. 40).) Respondent has not objected to the portion of the R&R granting Petitioner leave to amend his Petition to add two claims. After a review of the R&R and Petitioner's objections, the Court adopts the R&R in full, grants Petitioner's Motion in part, and denies it in part.

II. Discussion

A. Legal Standard

A district court reviewing a report and recommendation addressing a dispositive motion "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). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written, " Fed.R.Civ.P. 72(b)(2), and must be made "[w]ithin 14 days after being served with a copy of the recommended disposition, " id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Federal Rules of Civil Procedure 5(b)(2)(C)-(F), see Fed.R.Civ.P. 6(d), for a total of seventeen days, see Fed.R.Civ.P. 6(a)(2).

Where a party submits timely objections to a report and recommendation, as Petitioner has done here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The district court "may adopt those portions of the... report [and recommendation] to which no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y. 2008) (quoting Fed.R.Civ.P. 72(b)(2)).

B. Analysis

Petitioner objects to the R&R on two grounds. First, he disputes the R&R's conclusion that the Petition did not contain four of the claims that Magistrate Judge Smith found do not relate back to the original Petition. (See Objs. 2.) Second, he argues that, to the extent the R&R denied Petitioner leave to add claims on the ground that the claims were untimely, he is entitled to equitable tolling. (See id. at 3.) Neither of these arguments is availing.

In the Petition, which the Court notes is a fill-in-the-blank form, Petitioner completed four sections allowing him to include "Grounds" for habeas relief. (See Pet. unnumbered 5-11.) In each section, in the space provided for Petitioner to describe the specific ground, Petitioner wrote, "See attached herewith." (See id.) Underneath the description section, in subsections with information on the procedural history of the ground raised, the form asked Petitioner, "If you appealed from the judgment of conviction, did you raise this issue?" (See id.) Petitioner marked the box next to "No" for each ground. (See id.) In response to the question, "Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court, " Petitioner marked "Yes" for each ground and included identical information for each indicating that he raised it in his second coram nobis petition. (See id.) Among the documents he attached to his Petition were his second coram nobis petition (which raised four arguments based on an ineffective-assistance-of-appellate-counsel theory), the Appellate Division's denial of that petition, and the Court of Appeals' denial of leave to appeal the Appellate Division's decision. (See Pet.) But Petitioner also ...


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