United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
the Court are Petitioner's objections, (Docs. 25, 25-1),
to the Report and Recommendation of United States Magistrate
Judge Paul Davison ("R&R"), (Doc. 23),
recommending that this Court grant Respondent's motion to
dismiss Petitioner's application for a writ of habeas
corpus as untimely. The Court assumes the parties'
familiarity with the underlying facts, the procedural history
of the case, the R&R and the standards governing
petitions pursuant to 28 U.S.C. § 2254.
District Court reviewing a 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)(C). The district
court "may adopt those portions of the report 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." Adams v. N.Y.
StateDep't of Educ, 855 F.Supp.2d 205, 206 (S.D.N.Y.
2012) (quoting Fed.R.Civ.P. 72(b)) (citing Thomas v.
Arn, 474 U.S. 140, 149 (1985)). "A party that
objects to a report and recommendation must point out the
specific portions of the report and recommendation to which
they [sic] object." J.P.T. Auto., Inc. v.
Toyota Motor Sales, U.S.A., Inc., 659 F.Supp.2d 350, 352
(E.D.N.Y. 2009). If a party fails to object to a particular
portion of a report and recommendation, further review
thereof is generally precluded. See Mario v. P &C
FoodMkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002). The
court must review de novo any portion of the report
to which a specific objection is made. See 28 U.S.C.
§ 636(b)(1)(C); United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997). When a party makes only
conclusory or general objections, or simply reiterates the
original arguments made below, a court will review the report
only for clear error. Alaimo v. Bd. of Educ., 650
F.Supp.2d 289, 291 (S.D.N.Y. 2009). "Furthermore, [even]
on de novo review, the Court generally does not
consider arguments or evidence which could have been, but
were not, presented to the Magistrate Judge." United
States v. Vega, 386 F.Supp.2d 161, 163 (W.D.N.Y. 2005).
Judge Davison recommended that the Petition be dismissed as
time-barred because it was filed almost four years after the
one-year limitations period under 28 U.S.C. § 2254(d)
expired; neither statutory nor equitable tolling was
appropriate; and Petitioner had made no showing of actual
innocence. (R&R at 7-10.)
first objects - presumably in response to the R&R's
statement that equitable tolling requires that Petitioner
have been pursuing his rights diligently and that some
extraordinary circumstance prevented timely filing,
(id. at 6 (citing Holland v. Florida, 560
U.S. 631, 649 (2010)) - that he has been diligently pursuing
his rights, including through the filing of a petition for a
writ of error coram nobis in state court. (Doc. 25
at 1-2.) The problem with this argument is that that petition
was not filed until almost two years after his conviction
became final and almost a year after the limitations period
under § 2254 had run. So Petitioner was not diligent
during the one year he had to file his § 2254 petition.
See Koch v. Christie's Int'l PLC, 699 F.3d
141, 157 (2d Cir. 2012) (events after statute of limitations
had already run are irrelevant to equitable tolling);
Bolin v. Grounds, No. 1 l-CV-256, 2011 WL 1692149,
at *5 (CD. Cal. Apr. 15, 2011) (no equitable tolling for
periods after statute of limitations expired), report and
recommendation adopted, 2011 WL 1672033 (CD. Cal. May 4,
2011). Nor does the fact that he did not have his
trial transcript exempt him from the statute of limitations,
as he argues. (Doc. 25 at 2-3.) Petitioner does not address
the ample authority, cited by the Magistrate Judge, (R&R
at 9), to the effect that lack of a transcript does not
constitute an extraordinary circumstance warranting equitable
Judge Davison found that Petitioner had not presented
evidence of actual innocence that would justify disregarding
the one-year limitations period. (R&R at 9-10.)
Petitioner does not dispute that fact, but in his objections
he argues that his jury heard only a portion of a videotaped
statement of a co-defendant; that that co-defendant initially
cooperated with the prosecution but later said he did not
want to commit perjury; and that the full videotape would
have exculpated Petitioner. (Doc. 25 at 3-4.) In his
"Addendum" to his objections,  he provides
post-arrest statements of co-defendants that do not mention
him. (Doc. 25-1.) Because this information was not before the
Magistrate Judge, Petitioner cannot rely on it in his
objections. See Tavares v. City of N.Y., No.
08-CV-3782, 2011 WL 5877548, at *2 (S.D.N.Y. Nov. 23, 2011)
(evidence not submitted to magistrate judge is not properly
considered by district court) (collecting
reviewed the portions of the Petition as to which no
objection has been raised, and find no error, clear or
the R&R is adopted as the decision of the Court. The
motion to dismiss is GRANTED and the Petition is DISMISSED as
time-barred. As the Petition makes no substantial showing of
a denial of a constitutional right, a certificate of
appealability will not issue. 28 U.S.C. § 2253(c)(2).
The Clerk of Court is respectfully directed to terminate the
pending motion, (Doc. 17), and close the case.
 The Court will send Petitioner copies
of unpublished decisions cited in this Order.
 Further, lack of the transcript did
not prevent Petitioner from filing his state coram
nobis petition based "on things Petitioner
remembered from [his] trial, " (Doc. 25 at 1), and he
presents no reason why he could not have done the ...