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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 ...


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