WHITE v. CONWAY
| Decision Date | 31 March 2011 |
| Docket Number | NO.: 9:07-CV-1175 FJS/GHL,: 9:07-CV-1175 FJS/GHL |
| Parties | GREGORY A. WHITE, Petitioner, v. JAMES CONWAY, Superintendent, Attica Correctional Facility, Respondent. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES
OF COUNSEL
THE OFFICE OF DONALD M.
DONALD M. THOMPSON, ESQ.
The Powers Building
16 West Main Street, Suite 243
Rochester, New York 14614
Attorneys for Petitioner
OFFICE OF NEW YORK STATE
THOMAS B. LITSKY, AAG
120 Broadway
New York, New York 10271
Attorneys for Respondent
MEMORANDUM-DECISION AND ORDER
On September 21, 2007, Petitioner commenced this proceeding pursuant to 28 U. S. C. § 2254, claiming that Petitioner's conviction was the product of various constitutional violations. In his petition, Petitioner set forth numerous grounds for relief, including challenges to certain evidentiary rulings, the sufficiency of the evidence against him, and the propriety of the sentence that the trial court imposed. See Dkt. No. 1. Respondent challenged the petition as untimely, as well as on the merits. See Dkt. No. 12.
In a Report-Recommendation & Order dated January 18, 2011, Magistrate Judge Lowe recommended that the Court dismiss the petition as untimely because Petitioner filed it one-day late and because Petitioner offered no basis to excuse his late filing. See Dkt. No. 17.
Currently before the Court are Petitioner's objections to the January 18, 2011 Report-Recommendation & Order. See Dkt. No. 18-19.
In 1995, Petitioner lived in Chittenango, New York, with his wife AW and his stepchildren JD, SD, and JS. 2 In 1999, Petitioner was charged in a six-count indictment with having committed various sexual acts in "the latter part of 1995" with his then-ten and thirteen-year-old stepdaughters. The indictment alleged that Petitioner forced both victims to engage in oral sexual conduct and had sexual intercourse with the thirteen-year-old victim, all while playing his version of a game of "Truth or Dare" in his home.
Following an investigation, Petitioner was arrested on August 13, 1998. After being given his Miranda warnings, Petitioner admitted to playing "Truth or Dare" with the children while they were naked. Moreover, he admitted that, during the game, JD performed a sexual act for him.
Following a jury trial in Madison County Court, the jury found Petitioner guilty of the charges. The trial court subsequently sentenced him on the most serious charges to two consecutive prison terms of 12-1/2 to 25 years. On March 16, 2006, the Appellate Division, Third Department, affirmed Petitioner's convictions, see People v. White, 27 A. D. 3d 884 (3d Dep't 2006); and, on June 22, 2006, the New York State Court of Appeals denied leave to appeal, see People v. White, 7 N. Y. 3d 764 (2006).
On September 21, 2007, Petitioner's counsel filed this petition on Petitioner's behalf. In his petition, Petitioner alleged that the trial court erred (1) by denying his motion for suppression of statements; (2) by denying his motion to dismiss the indictment; (3) by denying his speedy trial motion; (4) by unduly restricting cross-examination of prosecution witnesses; (5) by precluding him from presenting witness testimony; (6) by refusing to instruct the jury pursuant to New York Criminal Procedure Law § 710. 70; and (7) by refusing to instruct the jury as to "prompt outcry. " Petitioner also alleged that (1) the jury's verdict was not supported by legally sufficient evidence and was against the weight of the evidence; (2) the cumulative effect of all errors denied him a fair trial; and (3) the sentence imposed was harsh and excessive.
In his January 18, 2011 Report-Recommendation & Order, Magistrate Judge Lowe found the petition untimely and, therefore, did not address the merits of Petitioner's arguments. See Dkt. No. 17 at 1-2. Specifically, the court found that "Petitioner's conviction became final ninety days after the June 22, 2006 denial of his application for leave to appeal, or on September 20, 2006. " See id. at 4. As such, the court found that the petition, which was filed on September 21, 2007, was one-day late and, therefore, untimely. See id.
Moreover, Magistrate Judge Lowe found unpersuasive Petitioner's arguments that the mailbox rule should apply even though he was represented by counsel. See id. at 5. Magistrate Judge Lowe also determined that Petitioner presented no exceptional circumstances to warrant equitable tolling. See id. at 6-8. Magistrate Judge Lowe noted that the fact that the petition was filed only one-day late and that the late filing was because of an "unusual delay" in the mail did not constitute the "exceptional circumstances" necessary to warrant equitable tolling. See id. Finally, Magistrate Judge Lowe held that Petitioner failed to come forward with any new evidence to support a claim of actual innocence and recommended that the Court decline to issue a certificate of appealability. See id. at 8-9.
1. Standard of review
When a party makes specific objections to a magistrate judge's recommendations, the district court engages in de novo review of the issues raised in the objections. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N. D. N. Y. 2008) (citation omitted). When a party fails to make specific objections, however, the court reviews the magistrate judge's recommendations for clear error. See id. at 306 (citation omitted); see also Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S. D. N. Y. Nov. 29, 2004) (citations omitted).
2. Mailbox rule
Petitioner asserts that Magistrate Judge Lowe improperly concluded that, because he is represented by counsel, the mailbox rule is inapplicable. See Dkt. No. 18 at 4. 3 Petitioner argues that, had he mailed the petition to the Court instead of to his counsel, the Court would have considered the petition filed as of September 14, 2007 - the date he gave the petition to prison officials to mail. See id.
Under the prison-mailbox rule, the court deems a pro se prisoner's complaint filed on the date that the prisoner delivered the complaint to prison officials for transmittal to the court. See Dory v. Ryan, 999 F. 2d 679, 682 (2d Cir. 1993) (citing Houston v. Lack, 487 U. S. 266, 270, 108 S. Ct. 2379, 2382, 101 L. Ed. 2d 245 (1988)). "This 'prison mailbox' rule is justified by the litigant's dependence on the prison mail system and lack of counsel to assure timely filing with the court. " Noble v. Kelly, 246 F. 3d 93, 97 (2d Cir. 2001) (citation omitted) (emphasis added).
As Magistrate Judge Lowe correctly held, the prison mailbox rule is inapplicable to the present matter because Petitioner was represented by counsel. See Dkt. No. 17 at 5 (citations omitted). Petitioner has presented no justification for extending this rule to petitioners who are represented by counsel. See Brockway v. Burge, 710 F. Supp. 2d 314, 322 (W. D. N. Y. 2010) .
Accordingly, the Court affirms Magistrate Judge Lowe's conclusion that the prison mailbox rule does not apply to the present matter.
3. Statute of limitations
Section 2254 of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs federal habeas corpus review of a state-court conviction. Since Petitioner filed his petition after the AEDPA was enacted, the petition is subject to a one-year statute of limitations that runs from the latest of the following four events:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U. S. C. § 2244(d)(1)(A)-(D).
For Petitioner, like most habeas petitioners, section 2244(d)(1)(A) sets the applicable starting point for the one-year statute of limitations - that is, "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).
Rule 6(a) of the Federal Rules of Civil Procedure governs the method for computing time periods, including the application of controlling statutes of limitations, in actions pending in federal court. See United States v. Hurst, 322 F. 3d 1256, 1260 (10th Cir. 2003) (quotation omitted); see also Day v. Morgenthau, 909 F. 2d 75, 78 (2d Cir. 1990) (quotation omitted). 4 Rule 6(a)(1) directs that when applying a prescribed time, "exclude the date of the event that triggers the period[, ]" but include the last day unless it falls on a Saturday, Sunday, a legal holiday, or a day on which weather or other conditions make the clerk's office inaccessible. See Fed. R. Civ. P. 6(a)(1) and (3). 5 '" Hurst, 322 F. 3d at 1260 (quoting [United States v. ] Marcello, 212 F. 3d [1005, ] 1010 [(7th Cir. 2000)]); see also Day, 909 F. 2d at 79 (...
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