Laurey v. Graham

• Decision Date: 05 February 2009
• Docket Number: No. 07-CV-6154(CJS).,07-CV-6154(CJS).
• Citation: 596 F.Supp.2d 743
• Court: U.S. District Court — Western District of New York
• Parties: Terrence B. LAUREY, Petitioner, v. H.D. GRAHAM, Respondent.

596 F.Supp.2d 743

Terrence B. LAUREY, Petitioner, v. H.D. GRAHAM, Respondent.

No. 07-CV-6154(CJS).

United States District Court, W.D. New York.

February 5, 2009.

COPYRIGHT MATERIAL OMITTED

Terrence B. Laurey, Auburn, NY, pro se.

Alyson J. Gill, Office of New York State Attorney General, New York, NY, Jennifer L. Johnson, New York State Attorney General's Office, New York, NY, for Respondent.

DECISION and ORDER ADOPTING REPORT and RECOMMENDATION

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

On March 19, 2007, Terrence D. Laurey ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his February 6, 2002, conviction and sentence in Chemung County Court, State of New York. The Court referred the case to the Honorable Victor E. Bianchini, United States Magistrate Judge, for a report and recommendation pursuant to 28 U.S.C. § 636(B)(1). On June 26, 2008, Judge Bianchini filed his Report and Recommendation (Docket No. 22), recommending that the petition be denied on its merits. Judge Bianchini directed that any objections to the Report and Recommendation be filed within ten days. On July 21, 2008, Petitioner requested an extension of time, until September 21, 2008, to file objections. Judge Bianchini granted the request. On or about September 20, 2008, Petitioner filed objections (Docket No. 24) to the Report and Recommendation. For the reasons that follow, the objections are denied, the Report and Recommendation is adopted in its entirety, and this action is dismissed.

BACKGROUND

The underlying facts of Petitioner's case were set forth in the Report and Recommendation, and are not in dispute. Accordingly, the Court will only repeat those facts that are relevant to the instant Decision and Order. The subject habeas petition (Docket No. 1) set forth four arguments: 1) there was insufficient identification evidence at trial to establish that Petitioner committed the robbery; 2) police officers failed to properly investigate the crime; 3) the prosecutor failed to provide defense counsel with a police report concerning a prosecution witness; and 4) a prosecution witness recanted her testimony. Significantly, Petitioner did not raise a claim of ineffective assistance of counsel as part of his habeas petition. (See, Petition at 7-8). However, in the section of the form petition that asks petitioners to list the various collateral attacks that they have made against their convictions, Petitioner indicated that he had raised ineffective assistance claims before New York state courts. (Petition at 4, 6, 9).

On March 29, 2007, the Court issued a Scheduling Order (Docket No. 3), directing inter alia, that Respondent file and serve an answer to the petition, and that Petitioner file and serve a reply within thirty days of receiving such answer.

On August 31, 2007, Respondent timely filed an answer to the petition. Respondent's papers identified and discussed the same four issues set forth in the petition and described by the Court above. Namely, that: 1) there was insufficient identification evidence at trial to establish that Petitioner committed the robbery; 2) police officers failed to properly investigate the crime; 3) the prosecutor failed to provide defense counsel with a police report concerning a prosecution witness; and 4) a prosecution witness recanted her testimony. Respondent's papers did not address any ineffective assistance claim, except to observe that, "petitioner does not raise any such ineffective assistance claim here." (Respondent's Brief at 40) (emphasis added).

On September 25, 2007, Petitioner requested an extension of time, until November 6, 2007, to file reply papers. The Court granted the application. On November 1, 2007, instead of filing a reply, Petitioner filed an application for appointment of counsel. On December 10, 2007, the Court denied the application, and advised Petitioner that it was "his responsibility to retain an attorney or press forward with this proceeding pro se." Subsequently, Petitioner did not file a reply, nor did he request additional time to do so.

Approximately six months later, the Court had heard nothing further from Petitioner. Accordingly, on June 26, 2008, Judge Bianchini issued a Report and Recommendation (Docket No. 22), denying the Petition on the merits. In that regard, the Report and Recommendation addressed the four grounds raised in the Petition, and concluded that they lacked merit. Accordingly, Judge Bianchini recommended that the Petition be denied. Judge Bianchini directed that any objections to the Report and Recommendation be filed within ten days. On July 21, 2008, Petitioner requested an extension of time, until September 21, 2008, to file objections. The Court granted the request.

On or about September 20, 2008, Petitioner filed the subject Objections (Docket No. 24) to the Report and Recommendation. In his recitation of the procedural history of this case, Petitioner asserted, incorrectly, that his Petition actually asserts five claims, not four. Specifically, he identified the purported fifth claim as follows: "that defense counsel provided ineffective assistance of counsel by his a) failure to investigate Bryan Parker's whereabouts prior to trial; b) lied to the trial court by asserting that he had served a subpoena on Maybel Golden, when in fact he did not; failed to interview Maybel Golden prior to trial; [sic] c) failure to relay a favorable plea offer of three (3) years." (Objections at 6). Furthermore, Petitioner indicated that his objections concerned only the purported ineffective assistance claims, which, of course, had not been addressed in the Report and Recommendation. (See, Objections [# 24] at 7) ("Petitioner responds [to the Report and Recommendation] by confining his habeas application to one substantive issue; that defense counsel provided ineffective assistance of counsel."). In other words, Petitioner's Objections are not addressed to the issues discussed in the Report and Recommendation, but instead, concern issues that were neither raised in the Petition nor responded to by Respondent.

STANDARDS OF LAW

Pursuant to Rule 72(b)(3) of the Federal Rules of Civil Procedure ("FRCP") and Title 28 U.S.C. § 636(b)(1)(C), when a magistrate judge makes a report and recommendation on a matter that is dispositive of a party's claim or defense, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." FRCP 72(b)(3). Moreover, where a party is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

DISCUSSION

Petitioner has not objected to any portion of the Report and Recommendation. Accordingly, the Report and Recommendation is affirmed and adopted in all respects. See, e.g., Butler v. Graham, No. 07 Civ. 6586(JSR), 2008 WL 2388740 at *1 (S.D.N.Y. Jun. 12, 2008) ("Butler's first objection is that his conviction was against the weight of the evidence. This argument, however, was nowhere raised in Butler's habeas petition.... Because Butler did not raise in his petition any argument pertaining to the sufficiency of the evidence supporting his conviction, that argument is not now properly before the Court.") (citations omitted).¹

Since Petitioner's "objections" concern issues that were not listed as grounds for habeas relief in the petition, the Court will treat the objections as a motion to amend the petition. In that regard, "Congress provided that a habeas petition `may be amended ... as provided in the rules of procedure applicable to civil actions.'" Mayle v. Felix, 545 U.S. 644, 649, 125 S.Ct. 2562, 2566, 162 L.Ed.2d 582 (2005) (quoting 28 U.S.C. § 2242).

In deciding whether to grant the motion to amend, the Court must consider whether the new claims, alleging ineffective assistance of counsel, would be timely. In that regard, habeas petitions pursuant to 28 U.S.C. § 2254 must be filed within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The statute of limitations contains the following tolling provision: "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). However, the time for bringing a federal habeas claim is not tolled during the pendency of an already-filed federal habeas petition. See, Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 2129, 150 L.Ed.2d 251 (2001) ("We hold that an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2).").

In the instant case, Petitioner's conviction became final, and his one-year limitations period began to run, in or about June 2005. Petitioner filed several collateral attacks in New York state court, which tolled the limitations period. The last such collateral attack was denied on January 31, 2007. On March 19, 2007, Petitioner filed the subject action. Petitioner did not file his "objections," which the Court is treating as a motion to amend, until September 24, 2008. Accordingly, even assuming arguendo that the original petition was timely filed, it appears that the proposed amended claims are time-barred, unless they "relate back" to the original filing date of the petition, pursuant to FRCP 15(c)(2). Mayle v. Felix, 545 U.S. at 649, 125 S.Ct. at 2566. In that regard, FRCP 15(c)(1)(B) provides, in relevant part,...