Bell v. McCarthy

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL L. BELL,
Petitioner
23-CV-646JLS(Sr)
v.
KEVIN MCCARTHY,
Respondent
REPORT, RECOMMENDATION AND ORDER
This matter was referred to the undersigned by the Hon. John L. Sinatra,
in accordance with 28 U.S.C. § 636(b), for all proceedings necessary to determine the
factual and legal issues presented, and preparation of a report and recommendation
regarding the disposition of this petition. Dkt. #19.
Petitioner filed this petition for writ of habeas corpus pursuant to 22 U.S.C.
§ 2254, challenging his conviction for second degree murder, which resulted in a prison
sentence of 23 years to life. Dkt. #1. The New York State Supreme Court Appellate
Division, Fourth Department, affirmed the conviction by Memorandum and Order issued
October 8, 2021 and the New York State Court of Appeals denied leave to appeal on
January 31, 2022. People v. Bell, 198 A.D.3d 1359 (4th Dep’t. 2021), leave denied, 37
N.Y.3d 1159 (2022).
Currently before the Court is Respondent’s motion to dismiss the petition
as untimely. Dkt. #14.
Case 1:23-cv-00646-JLS-HKS Document 21 Filed 11/18/25 Page 1 of 5

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA),
established a one-year statute of limitations for prisoners to seek federal habeas corpus
review of state criminal convictions. 28 U.S.C. § 2244(d)(1). In most cases, including this
one, the period begins to run on “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review. 28
U.S.C. § 2244(d)(1)(A). Because individuals convicted of a crime in New York State
have 90 days to file a request for certiorari with the United States Supreme Court, a
conviction becomes final 90 days after leave to appeal to the New York Court of Appeals
is denied. Williams v. McCarthy, 708 F. Supp.3d 309, 324 (W .D.N.Y. Dec. 28, 2023).
In the instant case, the New York Court of Appeals denied leave to appeal
on January 31, 2022, rendering the conviction final on May 1, 2022. Accepting
petitioner’s Affidavit of Service of Mailing dated June 30, 2023 as the filing date (Dkt. #1,
p.5), the petition was filed 60 days late. See Houston v. Lack, 487 U.S. 266, 271 (1988)
(a pro se prisoner litigant’s papers are deemed to have been filed when they are placed
in the hands of prison officials for mailing).
Petitioner does not address the timeliness of his petition, but argues that
he was convicted despite the fact that the murder weapon was never recovered; his
DNA was not found at the scene of the murder; and there was no surveillance footage of
the shooting, based upon the testimony of one individual, Devin Mason, who identified
him as the shooter 7 years after the murder in order obtain leniency for his own criminal
charges. Dkt. #18. Petitioner suggests that Devin Mason wants to recant and includes a
-2-
Case 1:23-cv-00646-JLS-HKS Document 21 Filed 11/18/25 Page 2 of 5

letter from his appellate attorney dated June 11, 2021, stating:
My investigator had a call with Devin Mason. Although he
said he was willing to talk, he was concerned that if he
recanted he might jeopardize his plea bargain and get more
time. He wanted a chance to ask his lawyer before
committing to anything.
Dkt. #18, p.4.
Respondent argues that petitioner’s apparent attempt to claim actual
innocence is insufficient to avoid the statute of limitations. Dkt. #20. More specifically,
Respondent argues that petitioner was aware of and argued to the jury the claims he
now raises, including Devin Mason’s motivation for testifying against petitioner, and that
petitioner’s claim of legal insufficiency does not meet the standard required for a
gateway claim of actual innocence. Dkt. #20.
“Gateway innocence is an equitable exception allowing avoidance of
AEDPA’s one-year limitations period on the ground that a procedural limitation
precluding a federal court from hearing the merits of a potentially innocent prisoner’s
habeas petition could result in a fundamental miscarriage of justice.” Jiminez v. Stanford,
96 F.4th 164, 184 (2d Cir. 2024) (internal quotations omitted). Stated another way, a
claim of actual innocence may, in rare cases, allow a petitioner to have his
accompanying constitutional claims heard despite a procedural bar. Rivas v. Fischer,
687 F.3d 514, 540 (2d Cir. 2012), citing Schlup v. Delo, 513 U.S. 298, 315 (1995). To
satisfy the exception, a petitioner’s claim of actual innocence must be both credible and
compelling. Id. at 541. To be credible, a gateway innocence claim “must be supported by
-3-
Case 1:23-cv-00646-JLS-HKS Document 21 Filed 11/18/25 Page 3 of 5

new reliable evidence - whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence - that was not presented at trial.” Id.,
quoting Schlup, 513 U.S. at 324. The habeas court assesses whether the new evidence
is trustworthy by considering it both on its own merits and, where appropriate, in light of
the pre-existing evidence in the record. Doe v. Menefee, 391 F.3d 147, 161 (2d Cir.
2004), cert. denied, 546 U.S. 961 (2005). To be compelling, petitioner must demonstrate
that, “more likely than not, in light of the new evidence, no reasonable juror would find
[the petitioner] guilty beyond a reasonable doubt.” Jiminez, 96 F.4th at 185 (alteration in
original).
Petitioner has not presented reliable evidence that was not presented at
trial. To the contrary, petitioner has merely questioned the jury’s assessment of the
evidence presented at trial and provided a letter from his attorney indicating that the
witness who identified him as the shooter at trial was “willing to talk,” but was not
“committing to anything.” Dkt. #18, p.4. This is wholly inadequate to avoid the procedural
bar of the statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Accordingly, it is
recommended that Respondent’s motion to dismiss the petition as untimely (Dkt. #14),
be GRANTED.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. § 636(b)(1) that:
ANY OBJECTIONS to this Report, Recommendation and Order must be
filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this
-4-
Case 1:23-cv-00646-JLS-HKS Document 21 Filed 11/18/25 Page 4 of 5

Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P.
72(b) and Local Rule 72(b).
The district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not presented to
the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v.
Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension
of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474
U.S. 140 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) of the Local Rules
for the Western District of New York, "written objections shall specifically identify the
portions of the proposed findings and recommendations to which objection is made and
the basis for such objection and shall be supported by legal authority." Failure to comply
with the provisions of Rule 72(b) may result in the District Judge's refusal to consider the
objection.
SO ORDERED.
DATED: Buffalo, New York
November 18, 2025
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate
-5-
Case 1:23-cv-00646-JLS-HKS Document 21 Filed 11/18/25 Page 5 of 5