Walker v. Unger

Filing 27

DECISION AND ORDER: ORDERED, that the Court adopts Magistrate Judge Baxter's Report-Recommendation in its entirety (Dkt. No. 21 ). Accordingly, the Petition for a writ of habeas corpus is DENIED, and the action is DISMISSED. A certificate of appealability will not issue. Petitioner's motion to stay the instant matter (Dkt. No. 26 ) is DENIED. Signed by Senior Judge Thomas J. McAvoy on 7/28/11. (Served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
WILLIAM M. WALKER, JR.,
Petitioner,
vs.

9:10-CV-1241

D. UNGER, Superintendent,
Wyoming Correctional Facility,
Respondent.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was

referred to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.4. Magistrate Judge
Baxter’s Report-Recommendation recommends that the petition be denied and dismissed,
and that no certificate of appealability be issued. See Rep. Rec. [dkt. # 21]; see also May
16, 2011 Order [dkt. # 24].1 Petitioner has filed objections to the ReportRecommendation, see Obj. [dkt. # 25], and has filed a request for a stay of the habeas

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In the May 16, 2011 Order, Magistrate Judge Baxter granted Petitioner’s request for reconsideration
of the Report-Recom m endation, but concluded that “the argum ents m ade in [Petitioner’s reconsideration
m otion] do not alter the court’s conclusion m ade in its Report-Recom m endation dated April 20, 2011.”
5/16/11 Order.

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proceeding because, on June 6, 2011, Petitioner filed an application for a writ of error
coram nobis in New York state court challenging his underlying conviction. See Motion for
Stay [dkt. # 26]. He argues that the instant proceeding should be stayed to allow him to
exhaust this state court collateral challenge to his conviction. Id.
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1)(C). After reviewing the report and recommendation, the Court may
“accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge. The judge may also receive further evidence or recommit the matter
to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).
III.

DISCUSSION
After examining Petitioner’s objections, the Court adopts Magistrate Judge Baxter’s

conclusion that Petitioner’s habeas petition was filed well after the expiration of The
Antiterrorism and Effective Death Penalty Act of 1996's statute of limitations. Moreover,
the Court finds no reason to stay the instant matter. As Magistrate Judge Baxter
explained, the filing of state court collateral challenge after a petitioner's federal statute of
limitations has expired does not restart the statute of limitations for filing a federal habeas
petition. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (holding that
AEDPA's tolling provision does not reset the date from which the one-year
limitations period begins to run). Thus, there is no meritorious reason to stay the instant

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matter because the state court collateral attack will not change the conclusion that the
instant matter is untimely. The Court also adopts Magistrate Judge Baxter’s conclusion
that a certificate of appealability should not issue in this matter.
IV.

CONCLUSION
The Court adopts Magistrate Judge Baxter’s Report-Recommendation in its

entirety. Accordingly, the Petition for a writ of habeas corpus is DENIED, and the action is
DISMISSED. A certificate of appealability will not issue. Petitioner’s motion to stay
the instant matter [dkt. # 26] is DENIED.
IT IS SO ORDERED
Dated:July 28, 2011

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