Strothers v. Larkin

Filing 3

MEMORANDUM AND ORDER: The Court grants petitioner's 2 request to proceed in forma pauperis and directs petitioner to show cause by written affirmation, within 30 days from entry of this Memorandum and Order, why the petition should not be dismissed as time-barred by the AEDPA's one year statute of limitations. No response or answer shall be required at this time from respondent and all further proceedings shall be stayed for 30 days or until petitioner has compli ed with this Order. If petitioner fails to comply with this Order within the time allowed, the instant petition shall be dismissed as time-barred under 28 U.S.C. § 2244(d). SO ORDERED by Judge Sandra L. Townes, on 4/18/2012. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)

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BROOKLYN 0fFI(;E..

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------J(

1 b LJ12

NOT FOR PUBLICATION

JOSEPH STROTHERS,

MEMORANDUM
AND ORDER

Petitioner,
-against-

12-CV-1746 (SLT)
SUPERINTENDENT LARKIN,
Respondents.

------------------------------------------------------------J(
TOWNES, United States District Judge:
Petitioner Joseph Strothers, appearing pro se and currently incarcerated at Eastern
Correctional Facility, seeks a writ of habeas corpus pursuant to 28 U.S.c. § 2254. Pursuant to Rule
4 of the Rules Governing Section 2254 Cases, the Court has conducted an initial consideration of
this petition and, for the reasons set forth below, detennined that the petition appears to be timebarred by the one year statute oflimitations under the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"). The Court grants petitioner's request to proceed informa pauperis and directs
petitioner to show cause within 30 days of the entry ofthis Memorandum and Order why the petition
should not be dismissed as time-barred.

BACKGROUND
On May 13, 2003, petitioner was convicted, upon a guilty plea, in the Supreme Court of the
G.iA££N5

State of New York,.Kings County, of murder in the second degree and sentenced to nineteen years
to life imprisonment. Petition at ~~ 1-6. Petitioner did not appeal from the judgment of conviction
or seek further review by a higher court or the United States Supreme Court. Id. at ~~ 8-9. On
February 10,2011, petitioner filed a post-conviction motion which was denied on May 10,2011, and
the Appellate Division affinned the state trial court's decision on December 7,2011. Id. at~~ 11-12,
Unmarked Exhibits. The Court received the instant petition on April 5, 2012.

DISCUSSION
With the passage of the AEDP A on April 24, 1996, Congress set a one-year statute of
limitations for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to
a state court conviction. 28 U.S.C. § 2244(d)(1). The one-year period runs from the date on which
one of the following four events occurs, whichever is latest:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration ofthe 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 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.
28 U.S.C. § 2244(d)(1)(A)-(D). Under subsection (A),1 the instant petition appears untimely.
Petitioner's conviction became final on June 12,2003, upon expiration of the 30-day period for filing
a notice of appeal from the judgment of conviction with the Appellate Division. Bethea v. Girdich,
293 F.3d 577, 578 (2d Cir. 2002); N.Y. Crim. Proc. Law § 460.10(1)(a). In order to be timely, this
petition should have been filed on or before June 14,2004. 2 Instead, it was filed on AprilS, 2012,
well after the one year limitations period had expired. Therefore, unless the petitioner can show that
the one-year statute of limitations period should be tolled, the petition is barred by 28 U.S.C. §

1

Petitioner does not state any facts to conclude that subsections (B)-(D) are applicable.

2

Because June 12,2004 fell on a Saturday, petitioner had until Monday, June 14,2004.
2

2244(d) as untimely.
Tolling
A. Statutory Tolling

In calculating the one-year statute of limitations period, "the time during which a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted." 28 U.S.C. § 2244(d)(2). The post-conviction
proceeding, however, does not start the one-year period to run anew. Section 2244(d)(2) merely
excludes the time a post-conviction motion is under submission from the calculation of the one-year
period of limitation. Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) (per curiam). Because
petitioner filed his post-conviction motion on February 10,2011, well after the one year limitations
period expired, he cannot avail himself of statutory tolling.
B. Equitable Tolling
The limitations period may also be equitably tolled, but only if petitioner (1) "has been
pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and
prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (internal quotation
omitted); Smith, 208 F.3d at 17. Mental illness may warrant equitable tolling, but "a habeas
petitioner must demonstrate that [his] particular disability constituted an extraordinary circumstance
severely impairing [his] ability to comply with the filing deadline, despite [his] diligent efforts to do
so." Bolarinwa v. Williams, 596 F .3d 226,232 (2d Cir. 2010) (internal quotation marks and citation
omitted). Petitioner must provide "a particularized description of how [his] condition adversely
affected his capacity to function generally or in relationship to the pursuit of [his] rights." Id.
(internal quotation marks and citation omitted). Here, petitioner does not make any arguments
suggesting that equitable tolling should apply to this petition and he does not explain the delay of
3

over six years from the date his conviction became final before seeking both state and federal review.

CONCLUSION
Accordingly, the Court directs petitioner to show cause by written affirmation/ within 30
days from entry ofthis Memorandum and Order, why the petition should not be dismissed as timebarred by the AEDPA's one year statute of limitations. Day v. McDonough, 547 U.S. 198,209

(2006); Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir. 2000). In the affirmation, petitioner must present
any facts which would support equitable tolling of the period of limitations, if applicable.
No response or answer shall be required at this time from respondent and all further
proceedings shall be stayed for 30 days or until petitioner has complied with this Order. Ifpetitioner
fails to comply with this Order within the time allowed, the instant petition shall be dismissed as
time-barred under 28 U.S.C. § 2244(d).
SO ORDERED.

/S/
( SANDRA L. TOWNES
United States District Judge
Dated: Brooklyn, New York
April I~ ,2012

3

An affirmation form is attached to this order for petitioner's convenience.
4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

__________________________________x
JOSEPH STROTHERS,
Petitioner,

PETITIONER'S
AFFIRMATION

-against12-CV-1746 (SLT)
SUPERINTENDENT LARKIN,
Respondent.

_________________________________x
JOSEPH STROTHERS, appearing pro se, makes the following affirmation under the
penalties of perjury: I am the petitioner in this action and I respectfully submit this affirmation in
response to the Court's Order dated _______. The instant petition should not be time-barred
by the one-year period of limitation because

[YOU MAY ATTACH ADDITIONAL PAGES, IF NECESSARY]
In view of the foregoing, it is respectfully submitted that the instant petition should be
permitted to proceed.
DATED: ___________
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