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Irizarry v. LaClair

United States District Court, S.D. New York

July 30, 2018

CHRISTOPHER IRIZARRY, PETITIONER,
v.
DARWIN LACLAIR, RESPONDENT.

          MEMORANDUM & ORDER ADOPTING REPORT & RECCOMENDATION

          LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE:

         Petitioner Christopher Irizarry ("Petitioner" or "Irizarry") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See "Petition", Jan. 31, 2017, ECF No. 1.) In September 1998, Irizarry was convicted of (1) one count of burglary in the first degree, (2) two counts of robbery in the first degree, and (3) two counts of robbery in the second degree. (Petition at 6.) On October 28, 1998, Irizarry was sentenced to twenty years imprisonment. (Id.) On November 19, 2001, Irizarry appealed his conviction to the Appellate Division, Second Department, arguing ineffective assistance of counsel, and filed a motion to vacate his guilty plea and a motion to set aside his sentence. (Id.) The Appellate Division affirmed Irizarry's conviction, denied each motion, and denied leave to appeal. (Id.) The New York Court of Appeals also denied leave to appeal. (Id.) In March 2002, while direct appeal was pending, Irizarry filed his first CPL § 440.10 motion arguing ineffective assistance of counsel. (Id.) The motion was denied on June 21, 2002. (Id.) In 2004, Irizarry filed his first Petition for a writ of habeas corpus asserting that he was denied effective assistance of counsel and was prejudiced by the absence of an alibi charge. (Id.) That Petition, application for a Certificate of Appealability, and Petition for leave to appeal to the Court of Appeals were all denied. (Id.) On September 17, 2012, Irizarry filed his second CPL § 440.10 motion based on alleged newly discovered evidence and actual innocence. (Id.) After conducting a hearing on August 20, 2014, the County Court denied Irizarry's motion to vacate his judgement of conviction. (Id. at 6-7.) Irizarry then sought a second writ of habeas corpus, which was referred to United States Magistrate Judge Katharine H. Parker. (See Order of Reference, Mar. 1, 2017, ECF No. 6.) Darwin LaClair ("Respondent" or "LaClair") filed a motion to dismiss the Petition. (Mem. Law in Supp. Resp't's Mot. Dismiss ("Resp. Mot."), July 5, 2017, ECF No. 13.)

         On January 18, 2018, Judge Parker issued a Report and Recommendation ("Report") in which she recommended that this Court grant Respondent's motion to dismiss. (Report and Recommendation ("R. & R."), Jan. 18, 2018, ECF No. 22.) Irizarry subsequently filed an Objection to the Report (See Obj., Apr. 20, 2018, ECF No. 27) (the "Objection") and also requested that the Court "review - and then accept - the much fuller argument in the Petition and in the Memorandum of Law in Opposition to the Motion to Dismiss." (Id. at 6.) For the following reasons, the Report is adopted in full, and Irizarry's Objections are overruled.

         I. Background

         The Court assumes familiarity with the relevant factual background and procedural history as set out in the Report. (R. & R. at 1-9.) Irizarry's habeas Petition states several grounds for relief: (1) it is a violation of the Fifth, Eighth and Fourteenth Amendments to keep in prison an innocent person; (2) Petitioner is actually innocent; and (3) the court receiving testimony pursuant to Petitioner's second § 4 40.10 motion made an unreasonable determination of facts. (See Petition.)

         In his motion to dismiss, Respondent argues that Irizarry's Petition is time-barred. (Resp. Mot. at 2.) Respondent asserts that the one-year statute of limitation applied under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") required Irizarry to file a Petition before June 24, 2010, one year after the factual predicate of the claim could have been discovered. (Id.) Because Irizarry did not file his motion to vacate his judgment until September 17, 2012, and did not file the instant Petition until January 31, 2017, Respondent argues that Irizarry's Petition is untimely under AEDPA. (Resp. Mot. at 3-4.) Respondent further asserts that Irizarry is not entitled to equitable tolling of the statute of limitations, Irizarry failed to make a gateway showing of actual innocence, and the Petition should be dismissed as a result. (Id. at 4-9.)

         In the Report, Judge Parker recommends that the Court grant Respondent's motion to dismiss. (R. & R. at 18.) Judge Parker found that Irizarry's Petition was untimely because he did not file it within one year of the date on which the factual predicate of his claim could have been discovered through the exercise of due diligence. (Id. at 14.) Judge Parker found that the factual predicate for Irizarry's claim was established well before he filed his CPL § 440.10 motion in state court seeking release based on new evidence of his innocence. (Id. at 14-15.) Judge Parker declined to toll equitably the statute of limitations because the exception for pursuit of pending judicial remedies during the statute of limitations period was inapplicable here. (Id. at 12.) Moreover, Petitioner failed to establish that he had pursued his rights diligently or that he faced extraordinary circumstances. (Id.) Finally, Judge Parker found that Irizarry did not make a credible showing of actual innocence. (Id. at 13-14.)

         Irizarry filed an Objection to the Report, which the Court discusses below.

         II. Standard of Review

         In reviewing a Report and Recommendation, a district 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). Where a petitioner makes a timely objection to the Report, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

         If no objections are filed, or where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition," reviewing courts should review a Report and Recommendation for clear error. Vega v. 7Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. Sept.30, 2002). Where objections to a Report and Recommendation are "specific and . . . address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Edwards v. Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y. 2006) (citing Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y. 1992).

         III. Petitioner's Objections

         Irizarry objects to Judge Parker's Report on two grounds. First, Irizarry argues that he presented sufficient evidence to support his claim of actual innocence and so Judge Parker should have granted the Petition for a writ of habeas corpus. (Obj. at 2.) Alternatively, Irizarry asserts that the evidence establishes that Petitioner is likely innocent and so a reasonable jury would not likely convict Irizarry. (Id.) As such, Petitioner argues that judgment should be vacated and a new trial ordered. (Id. at 7.) Although not addressed in the Objection filed by Petitioner, the Report concluded that the Petition was untimely and found all exceptions to the one-year statute of limitations inapplicable. (R. & R. at 14-15.) This was not addressed in the Objection filed by Petitioner. The Court will first address the statute of limitations and then each of Irizarry's objections in turn.

         1. Timeliness of the ...


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