UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________ DAVID NICHOLAS, 9:19-cv-322 Petitioner, (GLS/ATB) v. TIMOTHY MCCARTHY, Respondent. ________________________________ SUMMARY ORDER On April 17, 2020, Magistrate Judge Andrew T. Baxter issued a Report-Recommendation (R&R), which recommends that petitioner pro se David Nicholas’ petition for a writ of habeas corpus, (Pet., Dkt. No. 1), be denied and dismissed, and that the court decline to issue a certificate of

appealability. (Dkt. No. 24.) Pending before the court are Nicholas’ objections to the R&R. (Dkt. No. 27.) For the reasons that follow, the R&R is adopted in its entirety, Nicholas’ petition is denied and dismissed, and

the court declines to issue a certificate of appealability. Nicholas challenges a 1988 judgment of conviction in the New York State Supreme Court, Onondaga County, upon a jury verdict, of two counts of first degree attempted murder, two counts of attempted aggravated

assault upon a police officer, three counts of fourth degree criminal possession of stolen property, two counts of fifth degree criminal possession of stolen property, criminal possession of a weapon, and

reckless driving. (Pet. at 1-2.) His judgment of conviction was affirmed by the Appellate Division, Fourth Department, in July 1990, and the Court of Appeals denied leave to appeal in November 1990. (Id. at 2-3.) In March 2017, Nicholas filed a motion to vacate his judgment in New York State

court pursuant to New York Criminal Procedure Law (CPL) § 440.10, which was denied in September 2017. (Id. at 3-4.) Nicholas mailed the instant petition on March 11, 2019, in which he

raises the following grounds for relief: (1) he was subjected to prosecutorial misconduct when representatives of the state knowingly falsified physical evidence, information, and testimony relevant to the crimes of attempted murder and attempted aggravated assault; (2) his trial counsel was

ineffective; and (3) the trial court erred in its unreasonable determination of the facts and its incorrect interpretation/application of CPL § 440.10. (See generally id.)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides that, under certain circumstances, a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in

2 state court. See

(d). AEDPA has a one-year statute of limitations, which 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. See

§ 2244(d)(1). As applicable here, if the judgment of conviction was entered prior to AEDPA becoming effective, then the petitioner has one year from the effective date

to file his petition. See Ross v. Artuz,

(2d Cir. 1998). Because AEDPA became effective on April 24, 1996, Nicholas had until April 24, 1997 within which to file his petition. See

.

Additionally, the AEDPA’s one-year statute of limitations period is subject to equitable tolling in appropriate cases. See Davis v. Lempke,

, 153 (2d Cir. 2019). 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.”

(citation omitted). Courts have also recognized an equitable exception to the one-year statute of limitations under

(d)(1) in cases where a petitioner can

prove actual innocence. See McQuiggin v. Perkins,

(2013). Judge Baxter recommends denial and dismissal of the petition as

3 untimely. (Dkt. No. 24.) Specifically, Judge Baxter explains that the statute of limitations began to run for Nicholas on April 24, 1997, and he did not

mail his petition until March 11, 2019, and, further, Nicholas did not assert actual innocence, nor did he show that he had been diligently pursuing his rights or that an extraordinary circumstance prevented him from filing a timely petition to warrant equitable tolling. (Id. at 5-10.) Nicholas filed

timely objections to the R&R. (Dkt. No. 27.) Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge.

If a party has objected to specific elements of the magistrate judge’s findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. Civ. 904CV484,

, at *3 (N.D.N.Y. Jan. 18, 2006). In cases

where no party has filed an objection, or only vague or general objections have been filed, this court reviews the findings and recommendations of the magistrate judge for clear error. See

.

Nicholas’ objections either raise new arguments and factual

4 assertions not presented to Judge Baxter in the initial briefing,1 rehash arguments previously presented to, and rejected by, Judge Baxter, or

constitute a misapprehension of the law. (Dkt. No. 27.) Accordingly his objections invoke review only for clear error. See Smurphat v. Hobb, No. 8:19-CV-804,

, at *2 (N.D.N.Y. Jan. 14, 2021) (“[W]hen an objection merely reiterates the same arguments made by the objecting

party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.” (citations omited)); Smith v.

Hulihan, No. 11 CV 2948,

, at *1 (S.D.N.Y. Oct. 17, 2012) (“[N]ew arguments and factual assertions cannot properly be raised for the first time in objections to the R & R, and indeed may not be deemed objections at all.” (citations omitted)).

The court has carefully considered the R&R, and finds no clear error in Magistrate Judge Baxter’s thorough analysis, which squarely addresses Nicholas’ arguments and provides multiple, appropriate reasons for

1 For example, Nicholas includes with his objections twenty letters, spanning twenty- two years, from him to counsel and state courts, asking to review witnesses’ grand jury testimony and other records. (Dkt. No. 27 at 18-56.) Despite being put on notice that Nicholas would need to show why equitable tolling is warranted here, (Dkt. No. 5), he submitted these letters for the first time with his objections. 5 denying and dismissing his petition. Accordingly, the R&R is adopted in its entirety.’ Accordingly, it is hereby ORDERED that the Report-Recommendation (Dkt. No. 24) is ADOPTED in its entirety; and it is further ORDERED that Nicholas’ petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further ORDERED that the court DECLINES to issue a certificate of appealability pursuant to

(c); and it is further ORDERED that the Clerk close this case; and it is further ORDERED that the Clerk provide a copy of this Summary Order to the parties. IT IS SO ORDERED. April 15, 2021 |. Albany, New York ‘ S-Disttict Judge

? In any event, even if Nicholas’ objections were specific, and, thus, triggered de novo review, the R&R would be adopted and the petition would be denied and dismissed for the same reasons discussed in the R&R and by defendant Timothy McCarthy in his response to the objections, which need not be rehashed here. (Dkt. No. 24; Dkt. No. 28, Attach. 1.)