United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, UNITED STATES DISTRICT JUDGE
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). (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. (Id. at 8.) Having reviewed the
Report for clear error and finding none, this Court ADOPTS
the Report in full.
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).
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).
RESPONDENT'S MOTION TO DISMISS IS GRANTED
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. (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
Judge Netburn's Report and Recommendation is ADOPTED.
Respondent's motion to dismiss is GRANTED.
Clerk of Court is directed to close the motion at ECF No. 14
and this case.
 The relevant procedural and factual
background is set forth in greater detail in the Report, and