Clarke v. United States of America

Filing 20

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations. Clarke's objections to the Report and Recommendation are denied. SO ORDERED. (Signed by Judge Loretta A. Preska on 2/4/19) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
MAURICE CLARKE,

13-CV-0126 (LAP)
Petitioner,

MEMORANDUM & ORDER
ADOPTING REPORT &
RECOMMENDATION

v.
UNITED STATES OF AMERICA,
Respondent.

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LORETTA A. PRESKA, Senior United States District Judge:
Petitioner Maurice Clarke ("Petitioner" or "Clarke"),
proceeding prose, seeks a writ of habeas corpus pursuant to 28
U.S.C.

§

2255,

(Petition, Feb. 24, 2010, dkt. no. 1) and

petitions this Court to reject the Magistrate Judge's Report and
Recommendation (the "Report" or "R&R") pursuant to 28 U.S.C. §
636 (b) (1).

(See Obj. to the Report and Recommendation, dated

May 30, 2017, dkt. no. 19 ("Objections")).
this court convicted petitioner of:

In 2006, a jury in

(1) conspiracy to distribute

crack cocaine in violation of 21 U.S.C.

§§

846 and 841(b) (1) (A);

(2) possession of a firearm in furtherance of the narcotics
conspiracy in violation of 18 U.S.C. § 924(c).

(United States

v. Williams, et al., No. 02 Cr. 1372 (S.D.N.Y. Jul. 30, 2006).
The district court sentenced petitioner to an aggregate 300month term of imprisonment.

(Id. )

1

The petitioner's conviction and sentence were affirmed on
appeal, and the Supreme Court subsequently denied Petitioner's
Writ of Certiorari.

United States v. Thompson, 280 F. App'x 38

(2d Cir. 2008); Clarke v. United States, 555 U.S. 956 (2008).
On February 24, 2010, Clarke moved for an order pursuant to
28 U.S.C. § 2255 vacating the judgment of conviction entered
against him on July 30 th , 2006.
no. 1).

(Petition, Feb. 24, 2010, dkt.

Petitioner's motion was dismissed as time barred.

(R&R

at 10, Apr. 10, 2017, dkt. no. 17).
For the reasons stated below, the Petitioner's objections
to the Report are DENIED.
I.

BACKGROUND
The Court assumes familiarity with the factual background

and relevant procedural history as set forth thoroughly in the
Report.

(R&R at 2-4).

three claims:

Clarke's habeas petition articulates

(1) he should not have been sentenced to a

consecutive five-year sentence for his conviction for violating
18 U.S.C.

§

924 (c),

(R&R at 3);

(2) the trial court violated

petitioner's right to speedy trial,

(id.) ;

( 3) petitioner did

not receive the effective assistance of counsel,

(id.)

Report found that petitioner's claims were time-barred,

The
(R&R at

10), and as a result Judge Henry B. Pitman did not address the
merits of the claims.

(id.)

2

II.

STANDARD OF REVIEW
In reviewing a Report and Recommendation, a district court

"may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge."
U.S.C. § 636(b).

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When timely objections have been made to the

Report, "[t]he district judge must determine de novo any part of
the magistrate judge's disposition that has been properly
objected to."

Fed. R. Civ. P. 72(b) (3); United States v. Male

Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
However, when a petitioner objects by simply reiterating
previous arguments or making only conclusory statements, the
Court should review such objections for clear error.

See Genao

v. United States, No. 08 CIV. 9313, 2011 WL 924202, at *1
(S.D.N.Y. Mar. 16, 2011).

"[Elven a prose party's objections

to a Report and Recommendation must be specific and clearly
. such that no party be allowed

aimed at particular findings

a 'second bite at the apple' by simply relitigating a prior
argument."

Pinkney v. Progressive Home Health Servis., No. 06

Civ. 5023, 2008 WL 2811816, at *l (S.D.N.Y. July 21, 2008)
(citing Camarda v. Gen Motors Hourly-Rate Employees Pension
Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y. 1992)).

Further,

because "new claims may not be raised properly at this late
juncture," such claims "presented in the form of, or along with,

3

'objections,' should be dismissed."

Pierce v. Mance, No. 08

Civ. 4736, 2009 WL 1754904, at *1 (S.D.N.Y. June 22, 2009).
III. DISCUSSION
Judge Pitman noted that petitioner had filed his habeas
corpus petition over four months after the one-year limitations
period had expired and further found that the petitioner failed
to demonstrate that he had been pursuing his rights diligently.
(R&R at 4-10). Additionally, the Report notes that petitioner
failed to show the presence of "extraordinary circumstances"
necessary to entitle petitioner to equitable tolling of the
limitations period.

(Id.)

Judge Pitman further noted that pursuant to 28 U.S.C.
§

636 (b) (1) (c) and Rule 72 (b) of the Federal Rules of Civil

Procedure, Petitioner had fourteen days from receipt of the
Report to file written objections.

(Id.)

Therefore,

petitioner's objections were due by April 24, 2017. On May 30,
2017, thirty-six days after the limitations period expired,
petitioner filed his written objections to the Report.

(See

Objections at 1). In light of the fact that petitioner's
objections were filed over one month after the limitations
period expired, his written objections are time-barred.
Even if petitioner had timely filed his objections, his
claims fail nonetheless. Petitioner raises three objections to
the Report:

(1) the Report does not address petitioner's claim

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that the government's invocation of the statute of limitations
under 28 U.S.C.

§

2244 is unconstitutional,

(id. at 3);

(2) The

Magistrate Judge erred in finding that petitioner was not
entitled to equitable tolling of the limitations period with
regard to his petition for habeas corpus,

(id.) ;

( 3) The

government and petitioner have come to a private agreement that
the one year statute of limitation will not be imposed.

(Id. at

10) .
In his objections, Clarke objected generally to the
Report's conclusions and merely restated claims that were raised
in his earlier petition.

Accordingly, Petitioner's objections

only merit review for clear error.

Genao, 2011 WL 924202, at

*l.
1. Constitutionality Claim
Clarke first objects to the R&R on the grounds that the
Magistrate Judge failed to address petitioner's claim that the
government's invocation of AEDPA's one-year statute of
limitations is unconstitutional.

(Objections at 3). In the R&R,

Judge Pitman declined to address this argument, noting, "In
light of my conclusion that the petition is time-barred, I need
not address whether petitioner's claims are procedurally barred,
or the merits of the claims." (R&R at 10).

According to Clarke,

"The failure of the Magistrate to address the merits of such a

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constitutional claim warrants the R&R to be rejected."
(Objections at 3).
First, petitioner provides no legal precedent to support
this conclusory contention.

This Court is unaware of any case

law supporting the notion that a Judge's failure to address an
argument on the merits warrants rejection of that opinion in the
context of a time-barred claim.

On the contrary, it is well

accepted that, ft[where] a sufficient basis exists for dismissal
of Plaintiffs' complaint on statute of limitations grounds,

[the

Court] need not address the merits of their claims." Young v. GM
Inv. Mgmt. Corp., 550 F. Supp. 2d 416, 420 (S.D.N.Y. March 24,
2008); See Crenshaw v. Syed, 2011 U.S. Dist. LEXIS 79519, *4
(N.D.N.Y July 21, 2011)

(Noting that where a Magistrate Judge's

R&R barred a complaint on statute of limitations grounds, the
R&R does not address the merits of the complaint.); See Can v.
United States Drug Enforcement Agency, 764 F. Supp. 2d 519, 521
(W.D.N.Y. Jan 21, 2011)

(ftfailure to bring [an] action within

the statute of limitations provides a basis for dismissal of the
complaint upon that ground alone.").

As a result, the R&R's

failure to address the merits of petitioner's claims after
concluding that they were time-barred does not constitute clear
error.

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2. Equitable Tolling Claim
Clarke claims that the Magistrate Judge erred in finding
that he is not entitled to equitable tolling of the limitations
period.

(Objections at 3). In his objections, petitioner

rehashes many of the arguments made in his original equitable
tolling application.

(Compare Objections at 3-10 with Equitable

Tolling Application, dated Feb. 24, 2010, dkt. no 1).

As noted

in the R&R, equitable tolling of the AEDPA's limitation period
is only warranted in "rare and exceptional circumstances," and
in order to be entitled to equitable tolling a petitioner must
show (1) that he has pursued his rights diligently, and (2) that
extraordinary circumstances prevented timely filing.

(See R&R at

6 (citing Jenkins v. Greene, 630 F.3d 298, 302 (2d Cir. 2010)).
Judge Pitman found that petitioner failed to satisfy either of
these two prongs, and petitioner's objections to the contrary
are not persuasive.
In his objections, petitioner relies heavily on the facts
in Valverde v. Stinson, 224 F.3d 129 (2d Cir. 2000), and U.S. v.
Noble, 2013 U.S. Dist. LEXIS 94393 (W.D. Pa. July 8, 2013), to
claim that his loss of legal papers during prison transfers
constituted "extreme circumstances" worthy of equitable tolling.
(See Objections at 4-5). However, petitioner's circumstances do
not mirror the circumstances in either Valverde or Noble.

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In Valverde, unlike here, the defendant claimed that a
corrections officer intentionally and wrongfully confiscated his
legal materials.

It was

(See Valverde, 224 F.3d at 133-34).

this alleged "misconduct on the part of the Correction Officer"
that the court held would constitute "extraordinary
circumstances" that warrant equitable tolling.

(Id. at 135) .

In Clarke's case, however, his legal papers were
confiscated during routine transfers between prison facilities.
Petitioner recognizes in his objections that his papers were
confiscated during these transfers, and he makes no argument
that any confiscation was intentionally obstructive or wrongful.
(See Objections at 5-6). This difference in circumstances is
fatal to petitioner's claim that his circumstances are
"extraordinary" so as to warrant equitable tolling.

"[C]ourts

have routinely held the difficulties in filing a habeas petition
created by transfers between prison facilities are not
extraordinary circumstances for purposes of equitable tolling."
(See R&R at 7 (citing Hall v. Cunningham, 03 Civ. 3532 (RMB)
(GWG), 2007 WL 3145786 at *2 (S.D.N.Y. Oct. 29, 2007))).
Clarke asserts that "[t]he circumstances of Noble greatly
mirror that of [petitioner]," though this is also unpersuasive.
(Objections at 5).

First, Noble is not binding on this court.

Even assuming, for the sake of argument, that the decision were

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binding, the circumstances in Noble differ from Clarke's
circumstances in two critical respects.

First, the defendant in

Noble had his documents confiscated "a mere nine days before the
filing deadline." (See Noble, 2013 U.S. Dist. LEXIS at *16).
The Noble court found the fact that the papers were confiscated
so shortly before the deadline to weigh heavily in favor of
finding that "extraordinary circumstances" existed.

(Id.)

Here, Clarke had his materials confiscated four months
before the limitations period tolled.

Indeed, the court in

Noble noted that deprivation of legal material is generally not
sufficient to warrant tolling and that "[t]his is particularly
true when the deprivation occurs 'early in the limitations
period when there is adequate time to correct the problem.'"
(Id. at 11 (citing Robinson v. Johnson, 313 F.3d 128, 142-43
(3rd Cir. 2002)). Because Clarke had four months to submit his
petition after his materials were confiscated, the circumstances
preventing his timely filing do not match those in Noble.
Furthermore, the defendant in Noble filed his petition "as
quickly as possible" after his materials were returned.

(Id. at

17). In fact, petitioner specifically mentions that the
defendant in Noble filed his petition "[one] week after
receiving his property." (See Objections at 5). In this case,
however, Clarke did not file his petition until four months

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after he received his legal materials.

( See R&R at 2-3) .

Petitioner argues in his objections that he "needed [the four
month period] to not only draft the ineffective assistance of
counsel claim but to also research and draft the attached
equitable tolling claim." (See Objections at 9).

Clarke further

claims that any attempt to file a petition during the time he
did not have his legal materials would have inevitably been
rejected.

(See Objections at 6-7). Petitioner's explanations are

unavailing, as courts have regularly held that a failure to
attempt to file a petition without legal materials demonstrates
a lack of diligence.

(See R&R at 9 (citing Brown v. Bullis, No.

9:11 Civ. 647 (MAD)(ATB), 2013 WL 1294488 at *5 (N.D.N.Y. Mar.
26, 2013); Padilla v. United States, 2002 WL 31571733 at *4)).
Due to petitioner's failure to satisfy either of the prongs
needed to justify equitable tolling, there is no clear error
with regard to the findings of the Report.

3. Private Agreement Claim
Finally, petitioner asserts that the government and
petitioner had come to an agreement that the one year statute of
limitations would not be applied in this case.
10) .

(Objections at

Petitioner raises this argument for the first time in his

objections. Due to the fact that "new claims may not be raised
properly at this late juncture," such claims should be

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dismissed.

Pierce v. Mance, No. 08 Civ. 4736, 2009 WL 1754904,

at *1 (S.D.N.Y. June 22, 2009); See Gonzalez v. Garvin, No. 99
Civ. 11062, 2002 U.S. Dist. LEXIS 7069, at *2 (S.D.N.Y. Apr. 22,
2002)

(dismissing the petitioner's objection "because it offers

a new legal argument that was not presented in his original
petition, nor in the accompanying Memorandum of Law"). Even if
petitioner had previously raised this argument, his claim must
fail nonetheless.

The document which petitioner refers to as

containing the alleged agreement was prepared by petitioner
himself.

(See Objections, "Exhibit 2" at 1). It is not an

affidavit prepared by the government, and there is nothing in
the document suggesting that the government or any
representative of the government has agreed to the document's
terms.

(Id. at 1-9).

Consequently, the document can be afforded

no weight.
IV.

CONCLUSION
For the foregoing reasons, Clarke's objections to the

Report and Recommendation are denied.
SO ORDERED.
Dated:

New York, New York
February !j_, 2019
LORETTA A. PRESKA
Senior United States District Judge

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