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Siler v. Lamanna

United States District Court, S.D. New York

August 2, 2018

REGINALD SILER, Petitioner,
v.
SUPERINTENDENT J. LAMANNA, Respondent.

          MEMORANDUM DECISION AND ORDER

          GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE

         Pro se Petitioner Reginald Siler seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss Petitioner's petition as untimely under the one-year statute of limitations imposed by 28 U.S.C. § 2244(d)(1).[1] (See Mot. to Dismiss Memorandum of Law ("ML"), ECF No. 16, at 3.) Before this Court is Magistrate Judge Sarah Netburn's Report and Recommendation ('"Report," ECF No. 18), recommending that this Court grant Respondent's motion to dismiss. (Report at 7). In her Report, Magistrate Judge Netburn advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal.[2] (Id. at 8.) Having reviewed the Report for clear error and finding none, this Court ADOPTS the Report in full.

         I. LEGAL STANDARDS

         This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(b)(1). This Court must review de novo the portions of a magistrate judge's report to which a party properly objects. Id. Portions of a magistrate judge's report to which no or merely perfunctory objections have been made are reviewed for clear error. See Edwards v. Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y. 2006). Clear error is present only when "upon review of the entire record, [the court is] left with the definite and firm conviction that a mistake has been committed." Brown v. Cunningham, No. 14-CV-3515 (VEC)(MHD), 2015 WL 3536615, at *4 (S.D.N.Y. June 4, 2015) (citations omitted).

         The Federal Rules of Civil Procedure may be applied to the proceedings of a case arising under 28 U.S.C. § 2254. See Fed. R. Civ. P. 81 (a)(4). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must demonstrate "more than a sheer possibility that a defendant has acted unlawfully"; stating a facially plausible claim requires pleading facts that enable the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. When the plaintiff is proceeding pro se, the court must "construe [the] complaint liberally and interpret it to raise the strongest arguments that [it] suggest[s]." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted and citation).

         II. RESPONDENT'S MOTION TO DISMISS IS GRANTED

         The Report correctly found that Petitioner's August 2, 2017 habeas petition is time-barred under 28 U.S.C. §2244 (d)(1), and that Petitioner failed to allege adequate grounds for an equitable tolling of the statute of limitations. (See Report at 6-7.) The Antiterrorism and Effective Death Penalty Act requires a state prisoner whose conviction has become final to seek federal habeas corpus relief within one year from the date of final judgment. 28 U.S.C. § 2244(d)(1)(A). Petitioner's conviction became final on July 17, 2016, 90 days after the New York Court of Appeals denied Petitioner's motion for leave to appeal on April 18, 2016.[3] (Report at 6.) Yet, Petitioner did not file his petition until August 7, 2017, more than a year after his conviction became final. (ECF No. 1.) Petitioner failed to allege some "extraordinary circumstance[]" that prevented timely filing and could constitute a legally sufficient basis for an equitable tolling of the statute of limitations. (Report at 6.) Thus, Petitioner's habeas petition should be dismissed as time-barred.

         III. CONCLUSION

         Magistrate Judge Netburn's Report and Recommendation is ADOPTED. Respondent's motion to dismiss is GRANTED.

         The Clerk of Court is directed to close the motion at ECF No. 14 and this case.

         SO ORDERED.

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Notes:

[1] The relevant procedural and factual background is set forth in greater detail in the Report, and is ...


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