Johnson v. Connolly

Filing 6

ORDER GRANTING 2 Motion for Leave to Proceed in forma pauperis for purposes of this Order only and DISMISSING PETITION FOR WRIT OF HABEAS CORPUS - For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, the petition for a writ of habeas c orpus pursuant to 28 U.S.C. § 2254 is dismissed as untimely under 28 U.S.C. § 2244(d)(1). Petitioner is denied a certificate of appealability, as he has failed to make a "substantial showing of the denial of a constitutional right.&qu ot; 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. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C.  7; 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, 44445 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Summary Order to pro se petitioner and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 4/29/2013. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DARRIN JOHNSON, pro se,
:
:
Petitioner,
:
:
-against:
:
WILLIAM J. CONNOLLY, Superintendent :
of Fishkill Correctional Facility,
:
:
Respondent.
:
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DORA L. IRIZARRY, U.S. District Judge:

SUMMARY ORDER
12-CV-4096 (DLI)

By petition dated August 8, 2012, petitioner Darrin Johnson (“Petitioner”), incarcerated
at Fishkill Correctional Facility, commenced this action pursuant to 28 U.S.C. § 2254
challenging his 2004 Kings County conviction. (Petition (“Pet.”), Doc. Entry No. 1.) By Order
dated October 22, 2012, Petitioner was directed to show cause by affirmation why his petition
should not be dismissed as time-barred, pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA” or “Act”), 28 U.S.C. § 2244(d)(1). (See Doc Entry No 4.)
Pursuant to the Court’s instruction, Petitioner submitted a timely affirmation dated November 27,
2012. (See Petitioner’s Affirmation (“Pet. Aff.”), Doc. Entry No. 5.) For the reasons set forth
below, after review of Petitioner’s written affirmation, the petition is dismissed as untimely
under 28 U.S.C. § 2244(d).
DISCUSSION
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

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they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006)

(emphasis omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or “Act”) signed
into law on April 24, 1996, created a one-year statute of limitations for petitioners to file for a
writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Petitioner’s instant application for habeas corpus
relief pursuant to 28 U.S.C. § 2254 is time-barred under the Act. Petitioner alleges that he was
convicted on February 2, 2004. (Pet. at 1.) The Appellate Division, Second Department,
affirmed the conviction on July 28, 2009. See People v. Johnson, 64 A.D. 3d 792 (2d Dept.
2009). On January 27, 2010, the New York State Court of Appeals denied Petitioner leave to
appeal. See People v. Johnson, 13 N.Y. 3d 939 (2010). A petitioner’s judgment of conviction
becomes final 90 days from the date the New York State Court of Appeals denies leave to appeal
– i.e., after the period in which a litigant can petition for a writ of certiorari from the United States
Supreme Court. Williams v. Artuz, 237 F. 3d 147, 150-51 (2d Cir. 2001). Therefore, Petitioner’s

conviction became final on or about April 27, 2010, and this petition should have been filed on
or before April 27, 2011. The instant petition was filed with this Court on August 8, 2012 and is
thus barred by 28 U.S.C. § 2244(d), unless tolling is applicable.
A.

Statutory Tolling
In calculating a 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 of claim is pending shall not be counted.” 28 U.S.C. § 2244(d)(2).
On April 12, 2010, Petitioner filed a state habeas corpus petition, which was denied on
April 21, 2010, before his conviction became final. (Pet. at 2.) On December 23, 2010, nearly
eight months after Petitioner’s conviction became final, Petitioner filed a post-conviction motion

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pursuant to New York Criminal Procedure Law § 440.20 (“440 Motion”), which was denied on
February 14, 2011.

(Id. at 4, 6.)

On August 12, 2011, the Appellate Division, Second

Department denied petitioner leave to appeal. (Id. at 7.)
Petitioner argues the one-year statute of limitations period should run from August 12,
2011, when the Appellate Division, Second Department denied him leave to appeal, because
Petitioner “was giving the lower court the opportunity to correct its own error which concerned
the constitutional infirmities regarding the legality of his sentence.” (Pet. Aff. at 2.) However,
filing a post-conviction motion does not start the one-year statute of limitations period to run
anew.

Rather, the tolling provision under § 2244(d)(2) merely excludes the time a post-

conviction motion is under submission from the calculation of the one-year statute of limitations.
Smith v. McGinnis, 208 F. 3d 13, 16 (2d Cir. 2000) (per curiam). Thus, the 232-day pendency of
Petitioner’s 440 motion does not render his instant petition timely.
B.

Equitable Tolling
In order to be eligible for equitable tolling, a habeas petitioner must establish, “(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Dillon v. Conway, 642 F. 3d 358, 362 (2d Cir. 2011) (quoting
Holland v. Florida, 130 S. Ct. 2549, 2560-62 (2010)); Jenkins v. Greene, 630 F. 3d 298, 302 (2d
Cir. 2010). This Circuit previously has held that equitable tolling should be applied only in “rare
and exceptional circumstances.” Walker v. Jastremski, 430 F. 3d 560, 564 (2d Cir. 2005).
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,

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224 F. 3d 129, 134 (2d Cir. 2000); see also Jenkins, 630 F. 3d at 303. Petitioner does not offer
any reasons why equitable tolling should apply.

(See generally Pet. Aff.)

Accordingly,

Petitioner has failed to set forth any basis for this Court to equitably toll the AEDPA one-year
statute of limitations.

CONCLUSION
For the reasons set forth above, the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is dismissed as untimely under 28 U.S.C. § 2244(d)(1). 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. New York 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).

SO ORDERED.
Dated: Brooklyn, New York
April 29, 2013
/s/
DORA L. IRIZARRY
United States District Judge

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