United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
before the Court is Magistrate Judge Judith C. McCarthy's
Report and Recommendation (“R&R”), dated
March 20, 2017 (Doc. # 14), on Santiago Alvarez's pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
jury trial, petitioner was convicted in Orange County Court
of burglary, criminal contempt, and criminal mischief,
arising from an incident in which he assaulted his
girlfriend. On January 11, 2010, petitioner was sentenced as
a second felony offender to a determinate term of 10
years' imprisonment to be followed by 5 years'
post-release supervision on the burglary charge; 2 to 4
years' imprisonment on the criminal contempt charge; and
1 year's imprisonment on the criminal mischief charge,
the sentences to run concurrently. The Appellate Division,
Second Department, affirmed the conviction on July 12, 2011,
People v. Alvarez, 86 A.D.3d 578 (2d Dep't
2011), and the Court of Appeals denied leave to appeal on
July 2, 2012, People v. Alvarez, 19 N.Y.3d 970
(2012). On January 13, 2014, petitioner sought a writ of
error coram nobis on the ground of ineffective
assistance of appellate counsel, which was denied by the
Appellate Division on July 3, 2014. People v.
Alvarez, 118 A.D.3d 1015 (2d Dep't 2014).
October 1, 2014, petitioner filed the instant petition for a
writ of habeas corpus on the grounds of ineffective
assistance of trial counsel and ineffective assistance of
McCarthy recommended denying the petition as time-barred,
finding that petitioner provided no valid reasons for why the
1-year statutory limitations period under the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1), should be
Court agrees with that recommendation. Accordingly, for the
following reasons, the R&R is adopted as the opinion of
the Court, and the petition is DENIED.
Standard of Review
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 fourteen 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 seventeen
days if the parties are served by mail. See
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
district court may adopt those portions of the recommended
ruling to which no timely objections have been made, provided
no clear error is apparent from the face of the record.
See Wilds v. United Parcel Serv., Inc., 262
F.Supp.2d 163, 169 (S.D.N.Y. 2003). The clearly erroneous
standard also 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). Because petitioner is proceeding pro
se, the Court “will ‘read [his] supporting
papers liberally, and . . . interpret them to raise the
strongest arguments that they suggest.'”
Id. (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)).
AEDPA, when a state court denies a federal claim on the
merits, a habeas petitioner is entitled to relief on that
claim only if he can show the state court either (i) made a
decision contrary to, or unreasonably applied, clearly
established federal law as determined by the Supreme Court,
or (ii) unreasonably determined the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d)(1)-(2). When a state court denies a federal
claim on a procedural ground that is “firmly
established and regularly followed” in that state, a
federal court may not even review the claim unless the
petitioner shows either cause and prejudice for the failure
to comply with state procedural rules, or that he is actually
innocent. Clark v. Perez, 510 F.3d 382, 391-93 (2d
timely filed what he described as “objections” to
the R&R (Doc. #15), although for the most part this
submission argues that after his conviction was affirmed on
direct appeal by the Appellate Division, his appellate
attorney failed to file a timely application for leave to
appeal to the Court of Appeals. This argument does not
address the central finding in the R&R, namely, that the
instant habeas petition was filed more than one year after
petitioner's conviction became final. However, in
consideration of petitioner's pro se status, the
Court has carefully reviewed the R&R, petitioner's
objections, and the underlying record de novo.
Having done so, the Court finds no error, clear or otherwise,
in Judge McCarthy's thorough and well-reasoned R&R.
of all, whether or not appellate counsel failed to file an
application for leave to appeal to the Court of Appeals, the
Court of Appeals did in fact grant petitioner's motion
for an extension of time to file an application for leave and
treated that motion as a timely leave application. ...