Davis v. Bradt
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the petition for a writ of habeas corpus is dismissed as time-barred. Petitioner is denied a certificate of appealability, as he has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Luc iadore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and, therefore, in forma pauperis status i s denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se petitioner and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 8/28/2013. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CLIFTON DAVIS, pro se,
M. BRADT, WARDEN,
MEMORANDUM AND ORDER
DORA L. IRIZARRY, U.S. District Judge:
On August 2, 2010, Clifton Davis (“Petitioner”) filed the instant pro se 1 petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1996 conviction in New York
State Supreme Court, Kings County. The Court conducted an initial consideration of the petition,
determined that it may be time-barred by the one year statute of limitations under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or “Act”), and directed
Petitioner to show cause why the petition should not be dismissed as time-barred. (Docket Entry
No. 2.) For the reasons set forth below, upon review of Petitioner’s written affirmation, the Court
finds that Petitioner has failed to demonstrate that the petition is timely or that he is entitled to
tolling of the statute of limitations. Therefore, the petition is dismissed as time-barred.
The Court is mindful that “a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). The Court construes pro se pleadings “to raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006) (emphasis
28 U.S.C. § 2244(d)
The AEDPA, signed into law on April 24, 1996, provides that a one-year period of
limitation “shall apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The AEDPA provides that
the limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
The judgment of conviction being challenged by this petition was entered in New York
State Supreme Court, Kings County, on June 13, 1996; the New York State Supreme Court,
Appellate Division, Second Department, affirmed the conviction on June 15, 1998, People v.
Davis, 251 A.D.2d 511 (2d Dep’t 1998); and the New York State Court of Appeals denied
Petitioner leave to appeal on October 27, 1998. People v. Davis, 92 N.Y.2d 949 (1998).
Petitioner did not petition the U.S. Supreme Court for a writ of certiorari. (Affirmation of Clifton
Davis (“Davis Affirmation”) ¶ 4, Docket Entry No. 5.) Under these facts, pursuant to Section
2244(d)(1)(A), Petitioner’s conviction became final on January 25, 1999, 90 days from the date
the New York State Court of Appeals denied Petitioner leave to appeal. See Williams v. Artuz,
237 F.3d 147, 150-51 (2d Cir. 2001).
Therefore, the instant petition should have been filed in
this Court on or before January 25, 2000. Instead, it was filed more than ten and one-half years
later on August 2, 2010.
Petitioner contends that he should have the tolling benefit of Section 2244(d)(1)(D)
because he did not discover the factual predicate of his habeas claim until May 2009. (Davis
Affirmation ¶¶ 16-17, 23, 26.) In evaluating whether Section 2244(d)(1)(D) applies, Courts must
“determine when a duly diligent person in petitioner’s circumstances would have discovered” the
underlying basis for which he seeks habeas relief. Wims v. United States, 225 F.3d 186, 190 (2d
Cir. 2000). In other words, the relevant inquiry is whether the facts supporting the underlying
claim could have been discovered, “regardless of whether petitioner actually discovers the
relevant facts at a later date.” Id. at 186 (emphasis added). Petitioner bears the burden to show
that he exercised due diligence in discovering the factual predicate of his claim. Shabazz v.
Filion, 402 F. App’x 629, 630 (2d Cir. Dec. 6, 2010).
Here, Petitioner seeks habeas relief on the basis that his “1980 New York County
conviction for attempted third-degree criminal possession of a weapon was improperly used to
adjudicate him as a persistent violent felony offender.” 2 (Davis Affirmation ¶ 6.) According to
Petitioner, he “did not discover the facts supporting his claim until May, 2009,” when:
Specifically, Petitioner contends that his 1980 conviction:
could not be used to adjudicate him [as] a second violent felony offender because
the New York county court had not informed [him], when he plead guilty, that
“he knew the Constitutional rights he was waiving at the time he took the plea.”
The minutes of petitioner’s guilty plea at his 1980 New York county conviction
showed that the court had not informed him that, by pleading guilty, he was
following the full round of state appeals, and after a fortuitous conversation with
an assigned legal clerk, concerning the illegality of the imposed recidivist term of
imprisonment, petitioner undertook a series of post-judgment applications,
including the June 1, 2009 state court motion, contending that the County Court
illegally imposed a recidivist sentence, who was however, estopped from imposing
such a term . . . .
(Davis Affirmation ¶¶ 23, 26.)
As a preliminary matter, Petitioner’s assertion that he recently learned of the legal
viability of his claim from a law clerk is insufficient to reset the beginning date of the limitations
period under Section 2244(d)(1)(D). See, e.g., Patel v. Martuscello, 2011 WL 703943, at *3
(E.D.N.Y. Feb. 16, 2011) (“While it may be true that petitioner was not aware of the legal basis
for such claims until a later date, § 2244(d)(1)(D) deals only with the discovery of predicate facts,
not their legal significance.”); Singleton v. Cunningham, 2011 WL 2293232, at *6 (E.D.N.Y. June
6, 2011) (“[T]o the extent that petitioner claims a violation of his Sixth Amendment rights due to
ineffective counsel and failure to raise this issue, the factual predicate for that claim arose at the
time of his trial.”).
Furthermore, although Petitioner contends that he recently learned that transcripts of the
sentencing and plea allocution hearings were still available (Davis Affirmation ¶ 7), that
argument, too, is unavailing because Petitioner was already on notice of the facts supporting his
claim years before he filed this petition. See Giles v. Smith, 2010 WL 4159468, at *5 (S.D.N.Y.
Oct. 8, 2010) (holding that limitations period begins to run “from the date a petitioner is on notice
of the facts which would support a claim, not from the date on which the petitioner has in his
possession evidence to support his claim” (quoting Lucidore v. New York State Div. of Parole,
1999 WL 566362, at *5 (S.D.N.Y. Aug. 3, 1999), aff’d, 209 F.3d 107 (2d Cir. 2000)). Indeed, by
waiving his rights against self-incrimination, to testify, and to present witnesses
on his own behalf. (Davis Affirmation ¶¶ 8-9.)
no later than January 25, 1999, the date Petitioner’s judgment of conviction became final,
Petitioner knew, or should have known, the factual predicates of his claim, namely, that: (1) he,
in fact, was adjudicated as persistent violent felony offender based on his 1980 conviction; and
(2) his trial and appellate counsel did not challenge the recidivist term of imprisonment.
Accordingly, Petitioner has failed to provide facts sufficient to commence the statute of
limitations at a later date under 28 U.S.C. § 2244(d)(1)(D).
In calculating a one-year statute of limitations period, “[t]he time during which a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment of claim is pending shall not be counted . . . .” 28 U.S.C. § 2244(d)(2). “[The] proper
calculation of Section 2244(d)(2)’s tolling provision excludes time during which properly filed
state relief applications are pending but does not reset the date from which the one-year statute of
limitations begins to run.” Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000).
In its October 6, 2010 Memorandum and Order, the Court noted as follows:
On the record before the court, it does not appear that petitioner can benefit from
statutory tolling under 28 U.S.C. § 2244(d)(2). Petitioner alleges that he filed
three post-conviction motions. On May 28, 1999, petitioner filed a motion
pursuant to N.Y. Crim. Pro. Law 440.10 which was denied on August 24, 1999.
(Petition at 4 ¶ 11(a)(3)(8).) On June 20, 2008, petitioner filed a writ of error
coram nobis which was denied on November 12, 2008. (Petition at 5 ¶
11(c)(3)(8)). On February 20, 2009, the New York State Court of Appeals denied
petitioner leave to appeal the denial of the writ of error coram nobis. On May 27,
2009, petitioner filed a motion pursuant to N.Y. Crim. Pro. Law 440.20 which
was denied on March 26, 2010. (Petition at 4–5 ¶ 11(b)(3)(8)).
Petitioner’s second 440 motion and his writ of error coram nobis cannot be
counted for tolling purposes under 2244(d)(2) because they were filed after the
one-year statute of limitation period had expired. Moreover, even excluding the
time that petitioner’s first 440 motion was pending from May 1999 until August
1999, the instant petition still was filed at least ten years late.
Davis v. Bradt, 2010 WL 3943450, at *2-3 (E.D.N.Y. Oct. 6, 2010).
In his affirmation, Petitioner cites the same three post-conviction motions that were
previously identified in his habeas petition and considered by this Court. (Davis Affirmation ¶¶
5, 6, 17.)
Accordingly, for the reasons previously stated in this Court’s October 6, 2010
Memorandum and Order, Section 2244(d)(2) does not provide a basis upon which Petitioner may
timely pursue his habeas petition.
Even though Petitioner’s claims are time-barred under the AEDPA statute of limitations,
he may still avail himself of the doctrine of equitable tolling if he can demonstrate “‘(1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way,’ and prevented timely filing.’” Holland v. Florida, --- U.S. ---, 130 S. Ct. 2549, 2562
(2010). Equitable tolling “requires the petitioner to demonstrate a causal 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 petitioner, acting with reasonable diligence,
could have filed on time notwithstanding the extraordinary circumstances.” Valverde v. Stinson,
224 F.3d 129, 134 (2d Cir. 2000).
Equitable tolling is not warranted here because Petitioner fails to demonstrate that he has
been pursuing his rights diligently. Most notably, the affirmation fails to identify any action taken
by Petitioner to pursue his rights between August 24, 1999, the date Petitioner’s first postconviction motion was denied, and June 20, 2008, the date Petitioner’s second post-conviction
motion was filed.
Additionally, Petitioner fails to demonstrate that extraordinary circumstances stood in his
way and prevented timely filing. According to Petitioner,
the ‘extra-ordinary circumstances’ at issue involve his attorney’s failure to satisfy
professional standards of care. Here, despite the obvious error in imposing a
recidivist sentence based upon a previous adjudication by the state court, appellate
counsel’s omission of this glaring error, may not be disparaged . . . .
(Davis Affirmation ¶ 19.)
However, Petitioner fails to demonstrate a “causal relationship”
between his counsel’s failure to raise this particular claim on direct appeal and Petitioner’s failure
to timely file his habeas petition. See, e.g., Baldayaque v. United States, 338 F.3d 145, 150 (2d
Cir. 2003); Thomas v. Donnelly, 2010 WL 4628009, at *4 (S.D.N.Y. Nov. 16, 2010) (holding that
because petitioner “ha[d] utterly failed to demonstrate how his appellate counsel’s failure to raise
the sentencing claim on direct appeal interfered with his ability to timely file his federal habeas
petition, [he was] not entitled to equitable tolling of the AEDPA limitations period”); Gordon v.
Cunningham, 2008 WL 5099950 at *4 (S.D.N.Y. Dec. 2, 2008) (concluding that even if
petitioner’s ineffective assistance of counsel claim were meritorious, “it does not give rise to an
equitable toll because there is no causal relationship between the trial counsel’s conduct and the
failure to timely file the petition”).
For these reasons, Petitioner is not entitled to equitable tolling of the AEDPA limitations
For the reasons stated above, the petition for a writ of habeas corpus is dismissed as timebarred. Petitioner is denied a certificate of appealability, as he has failed to make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Fed. R. App. P.
22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Luciadore v. N.Y. State Div. of Parole,
209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is
denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Dated: Brooklyn, New York
August 28, 2013
DORA L. IRIZARRY
United States District Judge
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