White v. Conway

Filing 41

ORDER: ORDERS that Magistrate Judge Dancks' recommendation that the Court find that Petitioner is entitled to equitable tolling under Dillon v. Conway, 642 F.3d 358 (2d Cir. 2011) (per curiam) is ACCEPTED for the reasons stated in her April 3, 2012 Order and Report-Recommendation. ORDERS that Petitioner's petition is DENIED and DISMISSED on the merits for the reasons stated in this Court's March 31, 2011 Memorandum-Decision and Order. ORDERS that no Certificate of Appealability shall be issued with respect to any of Petitioner's claims. Signed by Senior Judge Frederick J. Scullin, Jr on 4/24/12. (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
GREGORY A. WHITE,
Petitioner,
v.

9:07-CV-1175
(FJS/TWD)

JAMES CONWAY, Superintendent,
Attica Correctional Facility,
Respondent.
______________________________________________
APPEARANCES

OF COUNSEL

THE OFFICE OF DONALD M.
THOMPSON, PC
The Powers Building
16 West Main Street, Suite 243
Rochester, New York 14614
Attorneys for Petitioner

DONALD M. THOMPSON, ESQ.

OFFICE OF NEW YORK STATE
ATTORNEY GENERAL
120 Broadway
New York, New York 10271
Attorneys for Respondent

THOMAS B. LITSKY, AAG

SCULLIN, Senior Judge
ORDER
On September 21, 2007, Petitioner commenced this proceeding pursuant to 28 U.S.C.
§ 2254, claiming that his 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. In a
Memorandum-Decision and Order dated March 31, 2011, this Court accepted Magistrate Judge
Lowe's January 18, 2011 Report-Recommendation and Order in its entirety, denied and
dismissed Petitioner's petition for a writ of habeas corpus, and ordered that no Certificate of
Appealability would issue with respect to any of Petitioner's claims. See Dkt. No. 20 at 42.
Petitioner appealed. See Dkt. No. 22.
On appeal, Petitioner, through counsel, argued that "there are also facts in this case, if
developed during the hearing petitioner requested, that would support a finding that [P]etitioner
diligently pursued his rights." White v. Conway, No. 11-1362, Dkt. No. 31-2 (2d Cir. May 13,
2011). Subsequently, Petitioner filed a pro se addendum with the Second Circuit. See White v.
Conway, No. 11-1362, Dkt. No. 42-1 (2d Cir. July 12, 2011). In that addendum, Petitioner
asserted that his petition was one day late because his attorney had misunderstood when it was
due and delayed filing it.
While Petitioner's appeal was pending, the Second Circuit issued its decision in Dillon v.
Conway, 642 F.3d 358 (2d Cir. 2011), the case that Petitioner had raised in his supplemental
objections to Magistrate Judge Lowe's Report-Recommendation & Order.
On August 23, 2011, the Second Circuit issued a mandate remanding this case to this
Court. In that mandate, the Second Circuit stated that
[Petitioner] argues that equitable tolling of the AEDPA statute of
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limitations is appropriate because, inter alia, [his] counsel agreed to
file the petition early; indeed completed the petition early; yet
forced [him] to entrust his appeal to the vagaries of the mail by
insisting on waiting for [his] unneeded signature to arrive by mail.
[Petitioner] notes that if he had filed the petition pro se, it would
have been deemed timely filed under the prison mailbox rule. See
Houston v. Lack, 487 U.S. 266, 270-71 (1980).
In light of this Court's decision in Dillon v. Conway, 642 F.3d 358
(2d Cir. 2011), we remand to the district court for reconsideration
of [Petitioner's] entitlement to equitable tolling and for any
necessary additional factfinding.
See Dkt. No. 26 at 2.
Although Petitioner listed this Court's treatment of the merits of his petition as one
ground for his appeal and Respondent's brief mentioned several times that this Court had reached
the merits of the case, the Second Circuit did not address the fact that this Court's had dismissed
the petition on its merits.
After the remand, Petitioner, through counsel, requested that "additional factfinding be
conducted through a hearing scheduled . . . at which the [P]etitioner will offer testimony and
exhibits relevant to the Court's determination concerning the application of equitable tolling."
See Dkt. No. 29 at 1. On January 5, 2012, Magistrate Judge Lowe conducted a telephone
conference, during which he requested that counsel submit letter-briefs discussing whether this
Court needed to conduct an evidentiary hearing in order to comply with the Second Circuit's
mandate. See Text Minute Entry dated January 5, 2012. The parties submitted the requested
letter-briefs. See Dkt. Nos. 34-36. In an Order and Report-Recommendation dated April 3,
2012, Magistrate Judge Dancks recommended that this Court conclude that Petitioner was
entitled to equitable tolling to excuse the untimeliness of his petition and that this Court deny and

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dismiss the petition on the merits for the reasons that this Court had stated in its March 31, 2011
Memorandum-Decision and Order. See Dkt. No. 38 at 12.
Currently before the Court are the parties' objections to Magistrate Judge Dancks'
recommendations. Specifically, Petitioner objects to Magistrate Judge Dancks' recommendation
that the Court should dismiss his petition on the merits. See generally Dkt. No. 39. Defendant
objects to Magistrate Judge Dancks' recommendation that this Court conclude that Petitioner was
entitled to equitable tolling. See Dkt. No. 40 at 1-2.
In his objections, Petitioner raises substantially the same arguments that he previously
raised in his memorandum of law in support of his petition. The Court thoroughly addressed
those arguments in its March 31, 2011 Memorandum-Decision and Order. See Dkt. No. 14-41.
Petitioner has not raised any additional arguments that would cause the Court to reach a
conclusion different than the one that it previously reached. Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' recommendation that the Court find that
Petitioner is entitled to equitable tolling under Dillon v. Conway, 642 F.3d 358 (2d Cir. 2011)
(per curiam) is ACCEPTED for the reasons stated in her April 3, 2012 Order and ReportRecommendation; and the Court further
ORDERS that Petitioner's petition is DENIED and DISMISSED on the merits for the
reasons stated in this Court's March 31, 2011 Memorandum-Decision and Order; and the Court
further

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ORDERS that no Certificate of Appealability shall be issued with respect to any of
Petitioner's claims.

IT IS SO ORDERED.

Dated: April 24, 2012
Syracuse, New York

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