United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
matter comes before the Court following a
Report-Recommendation filed on December 9, 2016, by the
Honorable Daniel J. Stewart, U.S. Magistrate Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 23
(“Report-Recommendation”). Pro se petitioner
Darrell Wimberly timely filed Objections. Dkt. No. 24
fourteen days after a party has been served with a copy of a
magistrate judge's report-recommendation, the party
“may serve and file specific, written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere
reiteration of an argument made to the magistrate judge, a
district court need review that aspect of a
report-recommendation only for clear error. Barnes v. Prack,
No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F.Supp.2d 301, 306-07, 306 n.2
(N.D.N.Y. 2008); see also Machicote v. Ercole, No.
06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven 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.”). “A [district]
judge . . . 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). Otherwise, a court
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.”
objects to the Report-Recommendation on several grounds.
First, he argues that his time-barred petition should
nevertheless receive review because he is actually innocent.
Objs. at 2-6. He suggests that relevant trial testimony
establishes his innocence. Id. at 3-4. But the
actual innocence exception to the one-year statute of
limitations established by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) requires a
petitioner to “present ‘new reliable evidence
that was not presented at trial' and ‘show that it
is more likely than not that no reasonable juror would have
found [him] guilty beyond a reasonable doubt.'”
Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107,
114 (2d Cir. 2000) (alteration in original) (quoting
Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995)).
As Judge Stewart correctly observed, Wimberly “has not
presented any new evidence of his innocence; [his] claim is
essentially that his conviction was against the weight of the
evidence.” Rep.-Rec. at 12. That is not enough to
establish actual innocence.
Wimberly argues that Judge Stewart erred in noting that the
statute of limitations bars consideration of the petition
before he considered the actual innocence exception. Objs. At
8. Instead, Wimberly contends, Judge Stewart should have
first evaluated his actual innocence claim and then
considered whether the statute of limitations applied.
Id. That cannot be right. The actual innocence
exception is just that-an exception. Judge Stewart would have
had no reason to consider the applicability of the exception
unless he had first determined that the petition was
otherwise time barred. Wimberly cites Whitley v.
Senkowski, 317 F.3d 223 (2d Cir. 2003), for the
proposition that Judge Stewart got the order of operations
wrong. Objs. at 8. Wimberly appears to be referring to a
quotation in Whitley from Wyzykowski v.
Department of Corrections, 226 F.3d 1213, 1218 (11th
Cir. 2000), in which the court said that “the factual
issue of whether the petitioner can make a showing of actual
innocence should be first addressed, before addressing the
constitutional issue of whether the Suspension Clause
requires such an exception for actual innocence.” This
has nothing to do with Wimberly's objection. It is simply
an application of the doctrine of constitutional avoidance,
which counsels that courts “ought not to pass on
questions of constitutionality . . . unless such adjudication
is unavoidable.” Spector Motor Serv. v.
McLaughlin, 323 U.S. 101, 105 (1944). This objection is
therefore not well taken.
Wimberly claims that equitable tolling is warranted because
he “was experiencing very serious health-related
problems during the [relevant] period.” Objs. at 9. But
“a petitioner must allege more than the mere existence
of physical or mental ailments to justify equitable
tolling.” Rhodes v. Senkowski, 82 F.Supp.2d
160, 173 (S.D.N.Y. 2000). The petitioner must instead provide
“a particularized description of how her condition
adversely affected her capacity to function generally or in
relationship to the pursuit of her rights.” Boos v.
Runyon, 201 F.3d 178, 185 (2d Cir. 2000). Wimberly has
not come close to satisfying his burden here. He has not
specified the health problems that he allegedly experienced
during the relevant time period. Nor has he “shown that
any of [his] conditions, whether taken separately or
cumulatively, rendered him incapable of filing a habeas
petition during the limitations period.” Williams
v. Breslin, No. 03-CV-1848, 2004 WL 2368011, at *9
(S.D.N.Y. Oct. 20, 2004). Thus, the Court will not equitably
toll the statute of limitations on this ground.
Wimberly seeks equitable tolling on the ground that
“[t]he prison facilities did not have inmate law
library clerks knowledgeable in federal litigation of federal
habeas corpus petitions.” Objs. at 9. Unfortunately for
Wimberly, “difficulty obtaining assistance in legal
research from other prisoners or prison staff . . . is not
sufficiently extraordinary to merit equitably tolling the
AEDPA's one-year statute of limitations.”
Martinez v. Kuhlmann, No. 99-CV-1094, 1999 WL
1565177, at *5 (S.D.N.Y. Dec. 3, 1999). Wimberly also argues
that there was no “type of posting” about
AEDPA's statute of limitations in the law libraries he
had access to. Objs. at 9-10. But “[t]he fact that the
petitioner may not have known about the one-year statute of
limitations for filing a federal habeas petition does not
constitute an extraordinary circumstance to excuse the
untimely filing of a federal habeas petition.”
Niblack v. Brighthaupt, No. 12-CV-1740, 2016 WL
1092436, at *5 (D. Conn. Mar. 21, 2016). Accordingly, this
objection is meritless.
it is hereby:
that the Report-Recommendation (Dkt. No. 23) is
APPROVED and ADOPTED in its entirety; and it
ORDERED, that Wimberly's Petition (Dkt.
No. 1) is DENIED as untimely under 28 U.S.C.