Holmes v. Cunningham

Filing 20

MEMORANDUM AND ORDER: Accordingly, the Court dismisses Holmes's petition for a writ of habeas corpus as untimely. Since Holmes has failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The Clerk of the Court is directed to enter judgment and to close the case. Ordered by Chief Judge Carol Bagley Amon on 7/29/2014. c/m to pro se Pltf (fwd for judgment) (Fernandez, Erica)

FILED

IN CLERK'S OFFICE

U.S. DISTRICTcrnic!T E.D.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JUL 3 0 2014

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BROOKLYN OFFICE

DA YID HOLMES,

Petitioner,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
13-CV-0550 (CBA)

- against ROBERT CUNNINGHAM, Superintendent at
Woodbourne Correctional Facility,
Respondent.

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AMON, Chief United States District Judge.
On January 22, 2013, David Holmes petitioned this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, seeking to vacate his 1977 state conviction. As discussed in
greater detail below, the Court dismisses Holmes's habeas petition as time-barred.

BACKGROUND
On November 17, 1977, Holmes pleaded guilty to robbery in the second degree, N.Y.
Penal Law§ 160.10, and admitted that he "went up on the [victim] with the gun ... [and] stuck
her up." (Plea Tr. at 5-6.) Holmes did not appeal this conviction and was subsequently released
from prison. (Pet. at 2-3.) Then, in 1983, Holmes was convicted of Burglary in the First Degree
and Burglary in the Second Degree, N.Y. Penal Law §§ 140.25, 140.30. After being released
Holmes was again convicted, in 2002, of Burglary in the Second Degree, N.Y. Penal Law §
140.25. (Pet. at 2.) After the 2002 conviction, Holmes was sentenced as a persistent violent
offender to 16 years to life and presently remains incarcerated on that charge. (Pet. at 2-3.)
Holmes did not appeal the 1977 judgment of conviction.

(Pet. at 3.) However, he

challenged his conviction in at least two CPL § 440 motions, the first in 2006 and the second in
2011. (Fleischmann Deel. E)(s. C, L.) Holmes was denied relief under both of his § 440

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motions. On January 22, 2013, Holmes filed the instant habeas petition with the Court. He
argues (I) that he received ineffective assistance of counsel because his attorney failed to
ascertain under which subdivision of robbery in the second degree Holmes was pleading, (2) that
his plea deal was defective and (3) that he is actually innocent of robbery in the second degree
and is only guilty of robbery in the third degree. 1
DISCUSSION

Respondent argues that Holmes's petition should be dismissed as time barred. Under the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner seeking
federal habeas relief must file his petition within one year of 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,
ifthe 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.
28 U.S.C. § 2244(d)(l). Regardless of which of these triggering events is used to calculate the
limitations period, Holmes's claim is untimely.

I.

Time Barred
Holmes was sentenced on December 15, 1977. He failed to file a direct appeal and his

conviction became final 30 days later, on January 15, 1978. See, Jarman v. New York, 234 F.
Supp. 2d 213, 214 (E.D.N.Y. 2002). AEDPA became effective on April 24, 1996. Ross v.
Artuz, 150 F.3d 97, 98 (2d Cir. 1998). A petitioner whose conviction became final prior to
AEDPA's effective date had one year from AEDPA's effective date to file a petition for habeas
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Although Holmes appears to be asserting a free standing claim of actual innocence, this Court liberally construe
Holmes to also be arguing that his petition is not time barred because he is asserting a claim of acrual innocence.

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relief. See Ross, 150 F.3d at 98-99. Therefore, Holmes's claim became time barred on April 24,
1997, unless Holmes can show that the statute of limitations period should be tolled-a
demonstration that he fails to make.
A. Statutory and Equitable Tolling

Holmes is not entitled to either statutory or equitable tolling. A petitioner is entitled to
statutory tolling for "[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending."
28 U.S.C. § 2244(d)(2).

Where, as here, the clock has already expired at the time that the

petitioner filed his motion, filing the motion has no tolling effects. Sorce v. Artuz, 73 F. Supp.
2d 292, 294 (E.D.N.Y. 1999); Trapp v. Spencer, 479 F.3d 53, 58-59 (!st Cir. 2007); see also
Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) (holding that the filing of a post-conviction
motion does not start the one-year limitations period anew but simply stops the clock while the
motion remains undecided). The AEDPA statute of limitations ran on April 24, 1997. Holmes's
two § 440 motions filed in 2006 and 2011, well after his time to file a federal habeas expired, fail
to toll the statutory period.
Equitable tolling applies when the petitioner can show"(!) 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, 130 S. Ct. 2549, 2562 (2010). The Second Circuit "set[s] a
high bar to deem circumstances sufficiently 'extraordinary' to warrant equitable tolling." Dillon
v. Conway, 642 F.3d 358, 363 (2d Cir. 2011).

Moreover, "[w]hether a circumstance is

extraordinary depends not on 'how unusual the circumstance alleged to warrant tolling is among
the universe of prisoners, but rather how severe an obstacle it is for the petitioner endeavoring to
comply with AEDPA's limitations period."' Rivas v. Fischer, 687 F.3d 514, 538 (2d Cir. 2012)

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(quoting Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)). The petitioner must "'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."' Jenkins v. Greene, 630 F.3d 298, 303 (2d Cir. 2010) (quoting VaJverde v.
Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). Here, Holmes fails to meet this bar as his three
claims-that his counsel was ineffective, that his plea was defective, and that he was actually
innocent-were known to him in 1977, and he fails to note any factor which prevented him from
bringing any of these claims in the 36 years since his initial guilty plea.
B. Actual Innocence
Holmes fares no better m attempting to use actual innocence to overcome the
untimeliness of his petition. Holmes argues that because he was initially indicted under N.Y.
PenaJ Law § 160.15(1 ), which requires that he cause "serious physical injury" to his victim, it
was improper for the Supreme Court to find him guilty of robbery in the second degree under a
"displays a weapon" theory. Holmes also appears to argue that he is actually innocent because
he was indicted on first degree robbery and New York law does not consider second degree
robbery to be a lesser included offense of first degree robbery. These arguments fail to support a
claim of actual innocence.
A petitioner cannot succeed on an actual innocence claim "unless he persuades the
district court that, in light of the new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt." McQuiggin v. Perkins, 133 S. Ct. 1924, 1928
(2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). To succeed on a claim of actual

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innocence, a petitioner must demonstrate "factual innocence, not mere legal insufficiency."
Bousley v. United States, 523 U.S. 614, 615 (1998).
In his plea allocution, Holmes admitted to committing robbery in the second degree,
stating that he robbed the victim with a shotgun. UnderN.Y. Penal Law§ 160.10(2)(b) a person
is guilty of robbery in the second degree if during the course of forcibly stealing property he
displays what appears to be a firearm. Holmes admits that he "cannot and does not deny that he
committed a robbery" (Pet. at 11) and at his plea hearing explicitly stated that he approached the
victim with a gun (Plea Tr. at 5-6). Holmes failed to produce any evidence that might introduce
reasonable doubt or that in any way calls into question the veracity of his statements at his plea
hearing.
To the extent that Holmes argues he is actually innocent because he pleaded guilty to
second degree robbery, which was not a lesser included offense to the indicted crime of first
degree robbery, this argument cannot form a basis for habeas relief and does not support a claim
of actual innocence.

See Lebron v. Sanders, No. 02-CV-6327, 2008 WL 793590, at *10

(S.D.N.Y. Mar. 25, 2008) (holding that because petitioner's claim that he plead to a crime that
was not a lesser included offense of the indicted offense was a claim that "challenges the
application of a state law of criminal procedure, it cannot form a basis for habeas relief.")
Because Holmes's own admissions satisfied the elements of robbery in the second degree, he
fails to show actual innocence.
CONCLUSION
Accordingly, the Court dismisses Holmes's petition for a writ of habeas corpus as
untimely. Since Holmes has failed to make a "substantial showing of the denial ofa

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constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The
Clerk of the Court is directed to enter judgment and to close the case.
SO ORDERED.

Dated: Brooklyn, New York
,2014
July ~

s/Carol Bagley Amon

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-Carol Bagl~y A{/lon
Chief United States District Judge

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