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Levola v. New York State Div. of Parole

United States District Court, N.D. New York

May 20, 2014

MARK W. LEVOLA, Petitioner,
v.
NEW YORK STATE DIV. OF PAROLE, Respondent.

MARK W. LEVOLA, Sharon Springs, New York, Petitioner, Pro Se.

MICHELLE ELAINE MAEROV, ESQ., Assistant Attorney General, ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, New York, New York, Counsel for Respondent.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court is a petition for a writ of habeas corpus filed by Mark W. Levola ("Petitioner") pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) United States Magistrate Judge Christian F. Hummel has filed a Report-Recommendation recommending that the Petition be denied and dismissed pursuant to 28 U.S.C. § 2253(c)(2), and that a certificate of appealability not issue. (Dkt. No. 18.) Petitioner filed an Objection to the Report-Recommendation. (Dkt. No. 21.) For the reasons set forth below, Magistrate Judge Hummel's Report-Recommendation is accepted and adopted in its entirety.

I. RELEVANT BACKGROUND

A. Petitioner's Underlying Conviction

For the sake of brevity, the Court will not repeat the factual background of Petitioner's February 2004 conviction of Course of Sexual Conduct Against a Child in the First Degree but will respectfully refer the reader to the relevant portions of Magistrate Judge Hummel's Report-Recommendation, which accurately recite that factual background. (Dkt. No. 18, at Part I.)

B. Petitioner's Claims

Generally, in his Petition dated July 24, 2012, Petitioner asserts the following four claims: (1) a claim that he was unlawfully arrested based on a fabricated confession and Miranda waiver; (2) a claim that the county prosecutor presented fraudulent evidence to the grand jury and denied Petitioner the opportunity to testify before the grand jury; (3) a claim that the fraudulent evidence was presented at a Huntley hearing concerning Petitioner's motion to suppress his confession; and (4) a claim that his hearing counsel and plea counsel were ineffective by failing to argue on his behalf and advise him of his rights. (Dkt. No. 1, at Grounds One Through Four.)

C. Magistrate Judge Hummel's Report-Recommendation

Generally, in his Report-Recommendation dated January 9, 2014, Magistrate Judge Hummel recommends that Petitioner's Petition be denied and dismissed due to Petitioner's failure to file his Petition within the one-year statute of limitations period pursuant to 22 U.S.C. § 2244. (Dkt. No. 18, at Part II.) More specifically, Magistrate Judge Hummel finds the following: (1) that Petitioner filed his Petition more than seven years after the statute of limitations began to run; (2) that Petitioner is not entitled to statutory or equitable tolling under the circumstances; and (3) that Petitioner is not entitled to an exception under the Antiterrorism and Effective Death Penalty Act ("AEDPA") because he cannot demonstrate "actual innocence." ( Id. )

D. Petitioner's Objections to the Report-Recommendation

Generally, in his Objection filed on February 4, 2014, Petitioner agues that his delay in timely filing his Petition was caused by (1) the fact that he has suffered from medical problems for many years, and (2) the fact that he is proceeding pro se, without the benefit of counsel. (Dkt. No. 21.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific, " the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).[1] When performing such a de novo review, "[t]he judge may... receive further evidence...." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.[2] Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) ("[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) ("In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks omitted).

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.[3] Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. [4]

After conducing the appropriate review, the 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)(C).

B. Standard Governing Review of Petitioner's Habeas Petition Pursuant to 28 U.S.C. § 2244(d)(1) and the AEDPA

Magistrate Judge Hummel has correctly recited the legal standard governing review of Petitioner's habeas petition pursuant to 28 U.S.C. § 2244(d)(1) and the AEDPA. (Dkt. No. 18 at Part II.) As a result, that standard is incorporated by reference in this Decision and Order, which is intended primarily for review of the parties.

III. ANALYSIS

After carefully reviewing all of the papers in this action, including Magistrate Judge Hummel's thorough Report-Recommendation, the Court can find no error in the Report-Recommendation. Magistrate Judge Hummel employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 18, Parts I and II.) As a result, the Court accepts and adopts Magistrate Judge Hummel's Report-Recommendation in its entirety for the reasons stated therein. ( Id. )

The Court would add only one point. Even when construed with the utmost of liberality, the arguments and evidence adduced by Petitioner in support of his Objection do not undermine Magistrate Judge Hummel's finding that Petitioner is not entitled to equitable tolling under the circumstances.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 18) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Petitioner's Petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further

ORDERED that a certificate of appealability shall not issue with respect to any of the claims set forth in the Petition, because Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2).


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