Siler v. Lamanna et al

Filing 21

MEMORANDUM DECISION AND ORDER adopting 14 Motion to Dismiss filed by Lamanna, 18 Report and Recommendations: Magistrate Judge Netburn's Report and Recommendation is ADOPTED. Respondent's motion to dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 14 and this case. (Signed by Judge George B. Daniels on 8/2/2018) (jwh)

Case 1:17-cv-05996-GBD-SN Document 21 Filed 08/02/18 Page 1 of 3

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USDCSDNY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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REGINALD SILER,

DOC1J!v1ENT
i
ELEC'l'RON iCAI.LY Fll.F.O l

DOC Ir' -~--·
DATE FILED:

AUG

a2 201

'1·

.

Petitioner,
-againstSUPERINTENDENT J. LAMANNA,

MEMORANDUM DECISION
AND ORDER
17 Civ. 5996 (GBD)(SN)

Respondent.
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GEORGE B. DANIELS, United States District Judge:
Prose Petitioner Reginald Siler seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Respondent moves to dismiss Petitioner's petition as untimely under the one-year statute of
limitations imposed by 28 U.S.C. § 2244(d)(l). 1 (See Mot. to Dismiss Memorandum of Law
("ML''), ECF No. 16, at 3.) Before this Court is Magistrate Judge Sarah Netburn's Report and
Recommendation ('·Report," ECF No. 18), recommending that this Court grant Respondent's
motion to dismiss. (Report at 7). In her Report, Magistrate Judge Netburn advised the parties that
failure to file timely objections to the Report would constitute a waiver of those objections on
appeal. 2 (Id at 8.) Having reviewed the Report for clear error and finding none, this Court
ADOPTS the Report in full.

1

The relevant procedural and factual background is set fo11h in greater detail in the Report, and is
incorporated herein.
2

The only objection filed was by Respondent to a single statement in the Report. While agreeing with the
Report's ultimate conclusion, Respondent objected to the Report's statement that "Respondent does not
contest that [Petitioner] underwent surgery." (Report at 6.) While Respondent did note in its motion papers
that Petitioner's "passing and unsubstantial references to vague medical issues ... such as surgery on
September 14, 2016 ... fall well short of the showing required for him to be entitled to equitable tolling,"
(ML at 5), Respondent's objection does not alter the ultimate conclusion of the Report, which Respondent
agrees with.

Case 1:17-cv-05996-GBD-SN Document 21 Filed 08/02/18 Page 2 of 3

I.

LEGAL ST AND ARDS

This Court ·'may accept, reject, or modify, in whole or m part, the findings or
recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(6)(1). This Court
must review de nova the portions of a magistrate judge's report to which a party properly objects.
Id. Portions of a magistrate judge's report to which no or merely perfunctory objections have been

made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346--47 (S.D.N.Y.
2006). Clear error is present only when "upon review of the entire record, [the court is] left with
the definite and firm conviction that a mistake has been committed." Brown v. Cunningham, No.
l 4-CV-3515 (VEC)(MHD), 2015 WL 3536615, at *4 (S.D.N.Y. June 4, 2015) (citations omitted).
The Federal Rules of Civil Procedure may be applied to the proceedings of a case arising
under 28 U .S.C. § 2254. See Fed. R. Civ. P. 81 (a)( 4). "To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
on its face.''' As heroJi v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The plaintiff must demonstrate "more than a sheer possibility that a
defendant has acted unlawfully"; stating a facially plausible claim requires pleading facts that
enable the court "to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678. When the plaintiff is proceeding prose, the court must "construe
[the] complaint liberally and interpret it to raise the strongest arguments that [it] suggest[ s]."
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted and

citation).
II.

RESPONDENT'S MOTION TO DISMISS IS GRANTED

The Report correctly found that Petitioner's August 2, 2017 habeas petition is time-barred
under 28 U.S.C. §2244 (d)(l), and that Petitioner failed to allege adequate grounds for an equitable

2

Case 1:17-cv-05996-GBD-SN Document 21 Filed 08/02/18 Page 3 of 3

tolling of the statute of limitations. (See Report at 6-7.) The Antiterrorism and Effective Death
Penalty Act requires a state prisoner whose conviction has become final to seek federal habeas
corpus relief within one year from the date of final judgment.

28 U.S.C. § 2244(d)(l)(A).

Petitioner's conviction became final on July 17, 2016, 90 days after the New York Court of
Appeals denied Petitioner's motion for leave to appeal on April 18, 2016. 3 (Report at 6.) Yet,
Petitioner did not file his petition until August 7, 2017, more than a year after his conviction
became final. (ECF No. 1.) Petitioner failed to allege some "extraordinary circumstance[]" that
prevented timely filing and could constitute a legally sufficient basis for an equitable tolling of the
statute of limitations. (Report at 6.) Thus, Petitioner's habeas petition should be dismissed as
time-barred.

III.

CONCLUSION

Magistrate Judge Netburn's Report and Recommendation is ADOPTED. Respondent's
motion to dismiss is GRANTED.
The Clerk of Court is directed to close the motion at ECF No. 14 and this case.

Dated: New York, New York
August 2, 2018

United States District Judge

3

Petitioner did not subsequently seek a writ of ce1iiorari to the United States Supreme Court. (Report at
2.)

3