Horton v. Recktenwald
DECISION AND ORDER denying 11 Motion to Appoint Counsel ; denying 12 Motion; and adopting Report and Recommendations in its entirety re 13 Report and Recommendations. Petition is dismissed and Clerk is directed to close case. Signed by Hon. Michael A. Telesca on 5/4/17. (Copy of Decision and Order sent by first class mail to Charles Horton.) (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION and ORDER
-vsMONICA RECKTENWALD, Warden,
Pro se petitioner Charles Horton (“Petitioner”) instituted
this proceeding by filing a petition (Dkt #1) for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Before the Court is the Report
and Recommendation (“the R&R”) of United States Magistrate Judge
Michael J. Roemer dated February 6, 2017, recommending that the
Petitioner’s motion for appointment of counsel (Dkt #11) and
Certification, and Intervention Pursuant to Rule 5.1/28 U.S.C.
§2403” (Dkt #12) both be denied.
The Court assumes the parties’ familiarity with the underlying
facts and procedural history of Petitioner’s criminal proceedings,
which are comprehensively set forth in Judge Roemer’s thorough R&R.
STANDARD OF REVIEW
Where, as here, no objections to the R&R were made by either
party, the Court reviews the R&R for clear error. See Nelson v.
Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (“To accept the
report and recommendation of a magistrate, to which no timely
objection has been made, a district court need only satisfy itself
that there is no clear error on the face of the record.”)
FED. R. CIV. P. 72(b), Advisory Comm. Notes (when a party makes no
objection, or only general objections to a portion of an R&R, the
district judge reviews it for clear error or manifest injustice);
further citation omitted).
The R&R found that there were multiple grounds on which the
petition could be dismissed, and thoroughly analyzed each of them.
First, the R&R determined, sua sponte, that Petitioner was not “in
custody” for purposes of the federal habeas statute. (See R&R at 78). Second, the R&R agreed with Respondent that the petition was
time-barred, and that Petitioner was not entitled to equitable
tolling. (See R&R at 8-10). The Court discerns no clear error in
either of these findings.
Third, the R&R found that all of Petitioner’s claims lacked
merit and did not warrant habeas relief. (See R&R at 10-18). The
Court agrees. Petitioner’s first claim is based on the intermediate
state appellate court’s denial of his application for leave to
appeal the trial court’s denial of his second collateral motion to
vacate the judgment, based on his alleged “actual innocence” of the
underlying charges. These allegations cannot be construed to raise
a constitutional issue cognizable on federal habeas review. First,
an appellate court’s denial of discretionary leave to appeal does
not raise a constitutional issue. See, e.g., Shaut v. Bennet, 289
F. Supp. 2d 354, 370 (W.D.N.Y. 2003). Second, to the extent
innocent, the United States Supreme Court has never ruled that a
freestanding claim of actual innocence may serve as a basis for
authority, the Appellate Division’s decision declining to hear
Petitioner’s actual innocence claim cannot be contrary to, or an
unreasonable application of, clearly established federal law as set
forth by the United States Supreme Court. E.g., Baughman v. Miller,
SACV 13-310-GW(JEM), 2015 WL 11216741, at *12 (C.D. Cal. Aug. 20,
2015), report and recommendation adopted, SACV130310GWJEM, 2016 WL
4009816 (C.D. Cal. July 24, 2016) (citing Wright v. Patten, 552
U.S. 120, 126 (2008) (“Because our cases give no clear answer to
the question presented, let alone one in Van Patten’s favor, ‘it
cannot be said that the state court unreasonabl[y] appli[ed]
clearly established Federal law.’ Under the explicit terms of
citation omitted in original)).
ineffective assistance of trial counsel are either barred by the
doctrine of Tollett v. Henderson, 411 U.S. 258, 267 (1973), as the
result of his voluntary and knowing guilty plea (see R&R at 13-14);
controverted by his sworn statements in open court at the plea
colloquy (see R&R at 14-16); or unsupported by any federal law (see
R&R at 14-18). Petitioner’s allegations of ineffective assistance
of appellate counsel are meritless because the arguments based on
trial counsel’s ineffectiveness that he asserts should have been
raised by appellate counsel likewise are meritless (see R&R at 18).
Petitioner’s Miscellaneous Motions
appointment of pro bono counsel because he could not make the
threshold showing of potentially meritorious claims. The R&R also
correctly denied Petitioner’s Motion for Constitutional Challenge
constitutionality of a federal or state statute. Rather, Petitioner
argues that the officers who arrested him on the possession charge
improperly failed to disclose that they found the cocaine in his
Petitioner’s allegations as an assertion of actual innocence, which
were then considered in connection with the discussion as to
tolling of the statute of limitations. The R&R also construed the
allegations as a request for discovery, and properly concluded that
Petitioner had not shown the “good cause” necessary to obtain
discovery in a habeas proceeding.
For the reasons discussed above, the Court adopts the R&R
(Dkt #13) in its entirety. The petition (Dkt #1) is dismissed.
Because Petitioner has failed to make a substantial showing of the
denial of a constitutional right, no certificate of appealability
shall issue. The motion for appointment of counsel (Dkt #11) is
Rule 5.1/28 U.S.C. §2403” (Dkt #12) is denied. The Clerk of Court
is directed to close this case.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
May 4, 2017
Rochester, New York
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