Dunbar v. Superintendent

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NAARON DUNBAR,
Petitioner,
v. 	9:23-CV-0908
(MAD/ML)
SUPERINTENDENT, Upstate Correctional Facility
Respondent.
APPEARANCES: 	OF COUNSEL:
NAARON DUNBAR
Petitioner Pro Se
17-B-2243
Green Haven Correctional Facility
P.O. Box
Stormville, New York 12582
HON. LETITIA JAMES 	MICHELLE ELAINE MAEROV, ESQ.
Attorney for Respondent 	Ass’t Attorney General
New York State Attorney General
28 Liberty Street
New York, New York 10005
MIROSLAV LOVRIC
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
I. 	INTRODUCTION
Petitioner Naaron Dunbar seeks federal habeas relief pursuant to 28 U.S.C. § 2254.
Dkt. No. 1, Petition ("Pet.").1 After an initial review, the Court provided Petitioner an
opportunity to file an affirmation explaining why his petition is not time barred, and Petitioner
did so. Dkt. No. 6, Order for Affirmation; Dkt. No. 7, Affirmation. Respondent filed a limited
1 For the sake of clarity, citations to all parties' filings refer to the pagination generated by CM/ECF, the Court's electronic
filing system.
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answer addressing the issue of timeliness. Dkt. No. 9, Answer; Dkt. No. 10, Text Order
Permitting Limited Answer. Petitioner was provided an opportunity to reply, but declined to
do so. Dkt. 10, Text Order Setting Deadlines.
For the reasons which follow, the undersigned recommends that the petition be denied
and dismissed as untimely.
II. 	RELEVANT BACKGROUND
A. 	State Court Criminal Proceedings
Petitioner was convicted on July 21, 2017, in Onondaga County Court, of attempted
criminal possession of a controlled substance in the third degree and attempted criminal
possession of a weapon in the second degree. People v. Dunbar (“Dunbar Appeal 1”), 183
A.D.3d. 1263, 1264 (4th Dep’t 2020); People v. Dunbar (“Dunbar Appeal 2”), 183 A.D.3d.
1265 (4th Dep’t 2020). The convictions followed petitioner’s guilty pleas as to both offenses.
Dunbar Appeal 1, 183 A.D.3d. at 1264; but compare Pet. at 1 (indicating his conviction was
pursuant to an insanity plea).
Petitioner filed two direct appeals, as he “committed the crime in appeal No. 2 while
released on bail for the charges underlying appeal No.1.” Appeal 1, 183 A.D.3.d at 1264.
The Fourth Department of the New York Supreme Court Appellate Division affirmed both
judgments of conviction. Appeal 1, 183 A.D.3d. at 1263; Appeal 2, 183 A.D.3d. at 1265. On
July 20, 2020, the New York Court of Appeals denied Petitioner leave to appeal. People v.
Dunbar, 35 N.Y.3d. 1044 (2020). Petitioner did not file a petition for a writ of certiorari from
the United States Supreme Court. Pet. at 3.
Petitioner filed two civil rights actions, pursuant to 42 U.S.C. § 1983, in this Court
challenging a 2016 vehicular traffic stop which, he argues, was accompanied by an unlawful
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search, seizure, and assault and presumably resulted in the instant state criminal conviction.
See Dunbar v. Onondaga Cty., No. 8:20-CV-0724 (LEK/DJS) ("Dunbar I"), 2020 WL
5868152, at *1 (N.D.N.Y. Oct. 2, 2020); Dunbar v. Onondaga Cty. et al., No. 8:19-CV 0524
(LEK/CFH) ("Dunbar II"), Dkt. No. 5, Decision and Order ("May Order"), at 4-5 (explaining the
factual background before initially evaluating the complaint’s sufficiency). This Court
dismissed Dunbar I as untimely and, in the alternative, barred by immunity and a failure to
successfully plead the elements required to state a § 1983 claim. Dunbar I, 2020 WL
5868152 (N.D.N.Y. Oct. 2, 2020). Similarly, this Court dismissed Dunbar II without prejudice
due to petitioner's failure to comply with court orders and prosecute the action. Dunbar II,
2021 WL 5492994, at *3 (N.D.N.Y. Nov. 23, 2021).
Petitioner additionally filed two civil rights actions against the New York Department of
Corrections and Community Services (“DOCCS”) in 2022 and 2023, which are relevant to the
procedural issues presented by the instant petition. Dunbar v. NY DOCCS et al., No. 9:22-
CV-01150 (LEK/CFH) (“Dunbar III”); Dunbar v. DOCCS, et al., No. 9:23-cv-00729
(DNH/TWD) (“Dunbar IV”). In Dunbar III, Petitioner alleged a variety of serious mistreatment
by prison staff, including assaults by corrections officers, indifference to his medical needs,
and the loss of his property. Dunbar III, Dkt. No. 1 Complaint. That case was
administratively closed because of petitioner’s failure to properly commence it; however,
Petitioner was given an opportunity to correct the issue. Id., Dkt. No. 4, Order. Dunbar IV
involved similar claims and was dismissed by the Court for failure to state a claim upon which
relief could be granted. Dunbar IV, Dkt. No. 8, Order (describing petitioner’s claims and
providing an opportunity for petitioner to amend his complaint in light of his pro se status).
III. 	THE INSTANT PETITION
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Petitioner argues that he is entitled to federal habeas relief because he is "inocent
[sic], if anything, [petitioner] used drugs but no pistol was found [even though petitioner] was
charged w[ith] that t[oo]." Pet. at 5. Petitioner further explains that he is "not mentally stable
and . . . losing [his] family is hurting [petitioner] to the point where [he doesn’t] want to live[.]"
Id. Petitioner asserts that he did not exhaust his state court remedies concerning his
innocence claim because he did not "know [he] could tell the court that [he is] depressed." Id.
at 6. Petitioner seeks "expung[e]ment of all charges and imm[e]diate release, and $3.5
million for damages." Id. at 15. For a complete statement of petitioner's claims, reference is
made to the petition.
The petition was signed and then placed into the prison facility mailing system in July
of 2023, but does not contain an exact date. Pet. at 15. The envelope the Court received
containing the petition, however, was postmarked July 27, 2023.2 Id. at 16.
The Court, noting that the petition appeared to have been filed well after the expiration
of the statute of limitations, ordered petitioner to file an affirmation explaining why the petition
should not be deemed untimely. Order for Affirmation, Dkt. No. 6 at 8. Petitioner was also
instructed to include in the affirmation: information about any state court applications for relief
that had been filed, as well as facts that would establish a basis for equitable relief from the
statute of limitations, if such relief was being sought. Id.
Petitioner filed an affirmation listing reasons that his petition should not be barred by
the statute of limitations. Affirmation, Dkt. No. 7 at 1-6. First, petitioner asked that the court
“make note” that petitioner is “a lamin [sic] of the law, and also . . . suffering from [a]ttention
deficit hyper active/ADHD, attention deficit disorder / A.D.D. depression ailments.” Id. at 1.
2 Under the prison “mailbox rule,” a petitioner's application is deemed filed on the date he delivers it to the prison
authorities for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988).
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Petitioner argues that his petition should not be deemed untimely because (1) he is “under
attack and [is] injured, and fear[s] further harm to [his] body”, Id. at 2; (2) since 2020, prison
staff have been intentionally preventing petitioner from filing his petition by engaging in
misconduct including, but not limited to, physically assaulting him, losing his paperwork, and
setting him up for tickets, Id.; (3) he is under “direct duress” and fears that he will lose his
family members and that the loss of his mother’s siblings put him into a ”complete mental
shutdown”, Id.; (4) prison assaults have put his life in jeopardy, deprived him from
meaningfully connecting and engaging with his family, and resulted in his shut down and
isolation, Id. at 2-3; (5) the Court should “overlook [his] ignorance of the law and applicable
procedural aspects” around filing the case, Id. at 3-4; (6) he has been denied access to the
courts by disgruntled prison employees, Id. at 4; (7) his parents and family have been through
enough, Id.; (8) his attorney was ineffective in pre-trial proceedings, Id.; (9) the convictions
are a violation of his rights and a miscarriage of justice, Id. at 4-5; and (10) Petitioner is
innocent.
Respondent opposes the petition, arguing that the case should be dismissed because
the action is untimely and not subject to any exceptions to the statute of limitations. Answer,
Dkt. No. 9 at 1-7.
IV. 	DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on
April 24, 1996, established a one-year statute of limitations for prisoners to seek federal
review of their state court criminal convictions. 28 U.S.C. § 2244(d)(1). The one-year period
generally begins to run from the date on which the state criminal conviction became final by
the conclusion of direct review or by the expiration of the time to seek direct review. 28
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U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 & n.9 (2012). However,
other dates from which the limitations period may start running are (1) the date on which an
unconstitutional, state-created impediment to filing a habeas petition is removed; (2) the date
on which the constitutional right on which the petitioner bases his habeas application was
initially recognized by the Supreme Court, if the right was newly recognized and made
retroactively applicable; or (3) the date on which the factual predicate for the claim or claims
presented could have been discovered through the exercise of due diligence (newly
discovered evidence). See 28 U.S.C. § 2244(d)(1)(B)-(D).
Here, petitioner was denied leave to bring his direct appeal before the New York Court
of Appeals on July 20, 2020. Dunbar, 35 N.Y.3d at 1044. Accordingly, petitioner's conviction
became “final” for purposes of AEDPA 150 days later, on December 17, 2020, when the time
to seek certiorari expired.3 Thaler, 565 U.S. at 149. Petitioner had one year from that date,
or until December 17, 2021, to file a timely federal habeas petition.4 The present petition,
placed in the prison mailing system in July of 2023, was filed over one and a half years too
late, unless the statute of limitations is tolled.
A. 	Statutory Tolling
The one-year limitation period under AEDPA is tolled while "a properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment or
3 In light of the global pandemic, the Supreme Court issued a general order declaring that for a lower court decision filed
between March 19, 2020, and July 18, 2021, the deadline for applying for certiorari would be temporarily extended from
ninety to 150 days. See 334 F.R.D. 801 (U.S. Mar. 19, 2020), available at
https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf (extending deadline); U.S. Sup. Ct. Orders
Rescinded, 28 U.S.C. (U.S. July 19, 2021), available at
https://www.supremecourt.gov/orders/courtorders/071921zr_4g15.pdf (rescinding pandemic-instituted protocols).
4 According to Rule 6(a) of the Federal Rules of Civil Procedure, "[w]hen a statute of limitations is measured in years, the
last day for instituting the action is the anniversary date of the state of the limitations period." Ross v. Artuz, 150 F.3d 97,
103 (2d Cir. 1998). "The anniversary date is the 'last day to file even when the intervening period includes the extra leap
year day.'" Ryan v. Griffin, No. 9:10-CV-0395 (MAD/ATB), 2011 WL 6934269, at *3 (N.D.N.Y. Dec. 30, 2011) (quoting United
States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).
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claim is pending." 28 U.S.C. § 2244(d)(2); Saunders v. Sendowski, 587 F.3d 543, 548 (2nd
Cir. 2009). The tolling provision excludes from the limitations period only the time that the
state relief application remained undecided, including the time during which an appeal from
the denial of the motion was taken. Saunders, 587 F.3d at 548; Smith v. McGinnis, 208 F.3d
13, 16 (2d Cir. 2000) (per curium). Further, the tolling provision does not reset the date from
which the one-year statute of limitations began to run. Smith, 208 F.3d at 17.
Petitioner does not appear to have filed any state post-conviction motions as relates to
the two judgments at issue. When asked to provide information about any state motions or
petitions other than his direct appeals, Petitioner only lists a federal civil rights action. Pet. at
3. That action does not provide statutory tolling. See Duncan v. Walker, 533 U.S. 167 (2001)
(holding that only a state post-conviction motion allows for statutory tolling). Furthermore,
Petitioner answered “no” when asked if he has filed a state post-conviction motion related to
his sole ground for relief in the petition. Pet. at 6. The Court’s own research has not
identified any state post-conviction actions by Petitioner. Consequently, statutory tolling does
not save this petition from being deemed untimely.
B. 	Equitable Tolling
AEDPA's one-year statute of limitations period "is subject to equitable tolling in
appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). To warrant equitable
tolling, a petitioner must show "'(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Diaz v. Kelly, 515 F.3d 149, 153
(2d Cir. 2008).
To show that extraordinary circumstances 'prevented' him from
filing his petition on time, [P]etitioner must 'demonstrate a causal
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relationship between the extraordinary circumstances on which
the claim for equitable tolling rests and the lateness of his filing, a
demonstration that cannot be made if the [P]etitioner, acting with
reasonable diligence, could have filed on time notwithstanding the
extraordinary circumstances.
Hizbullanhankhamon v. Walker, 255 F.3d 65, 75 (quoting Valverde v. Stinson, 224 F.3d 129,
134 (2d Cir. 2000)).
i. 	Misconduct of Prison Officials
Petitioner argues that he has been, and continues to be, repeatedly physically
attacked by corrections officers. He also alleges that employees of the prison have purposely
lost his belongings and paperwork. Furthermore, prison officials are alleged to have written
him up for false disciplinary charges, presumably to prevent him from filing a habeas petition,
although Petitioner does not make that explicit in his petition or affirmation.
It is well established that misconduct by prison officials that prevents a petitioner from
timely filing of a habeas petition constitutes extraordinary circumstances. See Valverde, 224
F.3d. at 133. Petitioner presents a variety of allegations that employees of the prison have
been trying to prevent his access to the courts. The obstacle Petitioner faces, however, is
that “[t]o establish extraordinary circumstances, a petitioner must support his allegations with
evidence; he cannot rely solely on personal conclusions or assessments.” Collins v. Artus,
496 F. Supp. 2d 305, 313 (S.D.N.Y. 2007). For instance, a petitioner who provides no
corroboration of mail interference by prison officials has not proven that extraordinary
circumstances existed. See Syder v. United States, 2023 WL 5935689 at *7 (S.D.N.Y. 2023).
Here, Petitioner made similarly generic claims of misconduct against prison officials as
in Dunbar IV, and the Court dismissed that complaint noting that “the complaint fails to
include any details regarding any of the alleged assaults against plaintiff, including where the
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assaults occurred, how long they lasted, the manner of force used against plaintiff, or the
events that precipitated the assaults.” Dunbar IV, Dkt. No. 8 at 11. The claims that Petitioner
makes here to justify this untimely petition are similarly vague and insufficient. He fails to
include any details as to the location, timing, perpetrators, or circumstances of the
misconduct that he alleges. The Court is not required to credit allegations that are merely
unsupported assertions.
Additionally, even if the Court did find that Petitioner had established extraordinary
circumstances, Petitioner has not shown that he was diligently pursuing his rights during the
period he asks to toll. “For a limitations period to be tolled, a petitioner ‘must have acted with
reasonable diligence throughout the period he seeks to toll.’” Phillips v. Lavalley, 2012 WL
443856, at *13 (W.D.N.Y. Feb. 10, 2012) (quoting Smith, 208 F.3d at 17 (emphasis in
original)). Here, Petitioner needs to toll the period between December 17, 2021 and his filing
of the petition on July 27, 2023. Petitioner, however, fails to submit any evidence that he was
attempting to pursue his rights during the period to be tolled. Nor does he provide specifics
that would allow the Court to conclude that he was actually hindered throughout the entire
period.
Conversely, the evidence that the Court does have about Petitioner’s activity during
that time militates strongly against Petitioner’s claims that he was prevented from filing a
habeas petition. Specifically, Petitioner filed two civil rights suits with this Court during the
relevant time period. In both cases, Petitioner was alleging the type of official misconduct
that he claims prevented him from filing this habeas petition. Petitioner does not explain why
he was able to file those suits but was completely unable to file a habeas petition during that
same time. This is especially notable because if prison officials were attempting to prevent
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Petitioner from accessing the courts as he claims, it defies explanation that Petitioner was
able to file claims suing these very individuals but was unable to file a habeas petition, which
unlike the section 1983 lawsuits, would presumably be of limited interest to the prison staff
because the habeas petition is challenging petitioner’s underlying state court conviction
instead of their individual misconduct. This evidence demonstrates that Petitioner was able
to access the courts much earlier than he chose to do so here, and thus Petitioner has failed
to prove that he was reasonably diligent during the time period that he needs to toll.
ii. 	Mental health issues
Petitioner also contends that mental health issues prevented him from timely filing his
petition. In explaining why he failed to exhaust his state court remedies, Petitioner states “I’m
not mentally stable and losing my family is hurting me to the point where I don’t want to live
myself.” Pet. at 5. On the following page, Petitioner references being depressed. Id. at 6. In
his affirmation, petitioner states that “my being under direct duress and constant fear of losing
my parents, my own son, his mother, and her daughter, […] and the loss of my mother’s
[four] siblings put me in a complete mental shut down [sic]”. Affirmation at 2. He also
describes an assault that he suffered after his uncle passed away in prison custody, stating
that it “made me shutdown and isolate because I was worried about my mother, her being the
oldest of her siblings. The same with my father, and the family I started. I’ve been deprived
of being a father.” Affirmation. at 3.
Mental illness can, “under the appropriate circumstances”, permit equitable tolling of
the AEDPA statute of limitations. Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010). It
does not result in tolling per se but rather is determined through a “highly case-specific
inquiry.” Id. at 232 (quoting Brown v. Parkchester S. Condos, 287 F.3d 58, 60 (2nd Cir.
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2002)). The petitioner has the burden to demonstrate that equitable tolling is appropriate by
offering a “particularized description of how [his] condition adversely affected [his] capacity to
function generally or in relationship to the pursuit of [his] rights.” Id. at 232 (quoting Boos v.
Runyon, 201 F.3d 178, 185 (2nd Cir. 2000)). This means proving that the mental illness
“severely impair[ed] his ability to comply with the filing deadline, despite [his] diligent efforts to
do so.” Id.
Petitioner is not able to meet his burden and show that his mental illness constituted
extraordinary circumstances that prevented him from filing his petition on time. Petitioner
describes himself as being under “duress” and “fear”, as well as suffering a “complete mental
shutdown.” Affirmation. at 2. He also states that he is unstable and describes being
depressed. He does not, however, describe with any specificity the nature of these mental
health issues, nor explain how they prevented him from meeting the filing deadline. The
Second Circuit has held that "conclusory and vague claim[s]" of mental illness are insufficient
to satisfy a petitioner's burden of establishing extraordinary circumstances sufficient to justify
equitable tolling. See Boos, 201 F.3d at 185 (holding a "conclusory and vague claim, without
a particularized description of how her condition adversely affected her capacity to function
generally or in relationship to the pursuit of her rights, is manifestly insufficient to justify any
further inquiry into tolling."). Petitioner does not provide medical records to corroborate his
mental health issues nor does he detail the symptoms he experienced. These vague claims
of emotional difficulty and depression cannot provide a basis for tolling the statute of
limitations. For that reason, and because Petitioner does not specifically connect any
symptoms to the time period he needs to toll, Petitioner’s mental health does not allow for
equitable tolling of the filing deadline.
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iii. 	Remaining explanations for untimely filing
In his affirmation, petitioner states that the Court should consider the fact that his
attorney allegedly provided ineffective assistance of counsel in the pre-trial stage of his case.
Ineffective assistance of counsel in the trial court could potentially provide cause to grant a
petition on the merits of a habeas claim, but at this stage of the proceedings, the Court is
considering a procedural bar rather than Petitioner’s substantive claims. Ineffective
assistance of counsel would only be relevant to the Court’s inquiry if it caused Petitioner to
fail to file the petition on time. Even then, equitable tolling is not appropriate for “garden
variety” attorney negligence. Holland, 560 U.S. at 651-652. Regardless, Petitioner provides
no evidence of gross attorney negligence causing his late filing and, instead, seems to be
referring to what happened during the original state case in trial court. Therefore, attorney
negligence does not provide a basis for equitable tolling of the statute of limitations here.
Finally, Petitioner makes a brief reference to his lack of knowledge as to the law. This
argument is unavailing because lack of legal knowledge or experience has never been
enough to constitute extraordinary circumstances. "Most courts . . . recognize that lack of
knowledge and education about the law and one's legal rights is not an extraordinary
circumstance because tolling for this common obstacle that most petitioners face would
undermine the legislative decision to impose a one-year limitations period." Adkins v.
Warden, 585 F. Supp. 2d 286, 297 (D. Conn. 2008), aff'd, 354 F. App'x 564 (2d Cir. 2009),
cert. denied, 562 U.S. 953 (2010) (citing cases). Because there is nothing extraordinary
about a pro se habeas litigant being inexperienced in the law, petitioner cannot rely on this
argument to justify tolling in this case.
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C. 	Equitable Exception
Courts have also recognized an equitable exception to the one-year statute of
limitations under 28 U.S.C. §2244(d)(1) in cases where a petitioner can prove actual
innocence. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). It is important to stress that
"[o]nce guilt is . . . established . . . a federal habeas court will not relitigate the question of
guilt for a state defendant who protests his actual innocence . . . [r]ather, a federal habeas
court will review state convictions for constitutional error." Hyman v. Brown, 927 F.3d 639,
656 (2d Cir. 2019).
An actual innocence claim will be recognized only in a "narrow class of truly
extraordinary cases [where a petitioner can] present[] credible and compelling claims of
actual innocence." Hyman, 927 F.3d at 656 (citing Schlup v. Delo, 513 U.S. 298, 315 (1995))
(internal quotation marks omitted); see also House v. Bell, 547 U.S. 518, 538 (2006) (noting
that the actual innocence gateway standard is "demanding and permits review only in the
extraordinary case.") (internal quotation marks omitted). "The petitioner's burden in making a
gateway showing of actual innocence is deliberately demanding." Hyman, 927 F.3d at 656
(citing cases). "To be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence–whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts or critical physical evidence–that was not presented at trial."
Schlup, 513 U.S. at 324; see also Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012); Whitley
v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). In addition, "prisoners asserting innocence
as a gateway to defaulted claims must establish that, in light of new evidence, 'it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable
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doubt.'" House, 547 U.S. at 536-37 (quoting Schlup, 513 U.S. at 327);5 see also Doe v.
Menefee, 391 F.3d 147, 160-62 (2nd Cir. 2004).
"The standard's demand for evidence of innocence references factual innocence, not
mere legal insufficiency." Hyman, 927 F.3d at 657 (quoting Schlup, 513 U.S. at 316 &
Bousley v. United States, 523 U.S. 614, 623-24 (1998)) (internal quotation marks omitted). In
clarifying what this standard requires, the Second Circuit explained:
a reviewing court assessing the probability of actual innocence is
not limited to the trial record. To the contrary, it "must consider all
the evidence, old and new, incriminating and exculpatory," House
v. Bell, 547 U.S. at 538 . . . (internal quotation marks omitted),
and, in doing so, "is not bound by the rules of admissibility that
would govern at trial," Schlup v. Delo, 513 U.S. at 327 . . . This is
because, at the gateway stage of inquiry, a habeas court's task is
not to identify trial error or to delineate the legal parameters of a
possible new trial. It is to identify those cases in which a
compelling showing of actual innocence would make it a manifest
injustice to maintain conviction unless it was free of constitutional
error. Thus, incriminating evidence obtained in the course of an
unlawful search, or custodial admissions made in the absence of
Miranda warnings, may well be inadmissible at trial.
Nevertheless, such evidence is properly considered in assessing
factual innocence, with the manner of procurement informing
reliability and relevance and, therefore, weight.
Id. at 658.
Here, petitioner cannot meet this high burden. First, petitioner must show the
existence of newly discovered evidence that is compelling and reliable because it is either
scientifically derived, credible eyewitness testimony, or critical physical evidence. See
Schlup, 513 U.S. at 324; See Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) ("To
demonstrate innocence so convincingly that no reasonable juror could convict, a prisoner
5 Schlup and House involved procedurally defaulted claims. See McQuiggan, 569 U.S. at 386. The Supreme Court in
McQuiggan held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the
impediment is a procedural bar, as it was in Schlup and House, or, as in this case, the expiration of the statute of
limitations." Id.
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must have documentary, biological (DNA), or other powerful evidence: perhaps some non-
relative who placed him out of the city, with credit card slips, photographs, and phone logs to
back up the claim."). Here, Petitioner only makes a bare assertion that he is innocent. He
does not provide any evidence or corroboration to support his claim nor does he even
attempt to develop his contention.
Second, to establish a gateway innocence claim to forgive a late habeas filing, the
claim must be both “credible” and “compelling.” Rivas, 687 F.3d at 541 (2d Cir. 2012). Such
entirely conclusory statements cannot entitle petitioner to the late filing of the petition based
on actual innocence, as they “do not provide actual evidence that would compel any
reasonable juror to acquit [petitioner], particularly in view of the substantial evidence of his
guilt.” Mitchell v. Murphy, 359 F. App'x 22, 25 (10th Cir. 2009). (citing Hall v. Bellmon, 935
F.2d 1106, 1111 (10th Cir. 1991) (“[A]ffidavits must be based upon personal knowledge and
set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are
not sufficient.”).
In conclusion, the petitioner has failed to establish an equitable exception that will save
his petition from being time-barred.
V. 	CONCLUSION
WHEREFORE, it is
RECOMMENDED that the petition, Dkt. No. 1, be DENIED and DISMISSED in its
entirety; and it is further
RECOMMENDED that no Certificate of Appealability ("COA") shall issue because
petitioner has failed to make a "substantial showing of the denial of a constitutional right" as
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28 U.S.C. § 2253(c)(2) requires;6 and it is further
RECOMMENDED that any further request for a Certificate of Appealability must be
addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk of the Court respectfully provide petitioner with copies of the
unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall serve a copy of this Decision upon the parties in
accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to
file written objections to the foregoing report. Such objections shall be filed with the Clerk of
the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL
PRECLUDE APPELLATE REVIEW.7 Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
(citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72 & 6(a).
6 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (holding that if
the court denies a habeas petition on procedural grounds, "the certificate of appealability must show that jurists of reason
would find debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the applicant
has established a valid constitutional violation" (emphasis in original)).
7 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will
be added to the fourteen-day period, meaning that you have seventeen days from the date that the report,
recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that
prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
DATED: December 31, 2025
Binghamton NY
Case 9:23-cv-00908-MAD-ML Document 18 Filed 12/31/25 Page 16 of 16