Singh v. DOCS
Filing
14
ORDER granting 9 Motion to Dismiss. IT IS HEREBY ORDERED that, because the petition was filed after the statute of limitations period expired, it is dismissed as time-barred. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/7/2014. (Lamb, Conor)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-1158 (JFB)
_____________________
PARMJIT SINGH,
Petitioner,
VERSUS
DEPARTMENT OF CORRECTIONAL SERVICES,
Respondent.
___________________
MEMORANDUM AND ORDER
January 7, 2014
___________________
Joseph F. Bianco, District Judge:
Parmjit Singh (“petitioner”) petitions this
Court for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, to vacate his conviction for
manslaughter in the second degree and
hindering prosecution in the first degree.
Petitioner challenges his conviction on the
following grounds: (1) that the statute of
limitations had run on his manslaughter
charge; (2) that he received ineffective
assistance of counsel; (3) that his due process
rights were violated when his attorney and
the court did not provide an interpreter; (4)
that Suffolk County was an improper venue;
and (5) that petitioner’s plea was the product
of coercion. Respondent Department of
Correctional Services (“respondent” or
“DOCS”) moves to dismiss the petition as
untimely.
For the reasons set forth below,
respondent’s motion to dismiss is granted and
the petition is dismissed. In short, the
conviction under attack became final on July
21, 2010. Under the Antiterrorism and
Effective Death Penalty Act of 1996
(“AEDPA”), a petition must be filed no later
than one year following the date a conviction
becomes final. However, under AEDPA, this
limitations period is tolled during the
pendency of a properly filed application in
state court for post-conviction relief. Here,
the application for post-conviction relief
occurred before the conviction was final but
remained pending afterward. Exercising an
abundance of caution and considering the
limitations period tolled until March 28,
2011, the latest possible date that the denial
of his application for post-conviction relief
was final, this petition is untimely because it
was not filed within one year of that date.
of an interpreter in court. The motion was
denied on April 28, 2010, and on November
17, 2010, the Appellate Division denied
petitioner leave to appeal the decision of the
Supreme Court. Petitioner’s subsequent
application for leave to appeal the Appellate
Division’s denial was denied on March 28,
2011.
Moreover, there is no basis for equitable
tolling, and no basis for an actual innocence
claim. Accordingly, the petition is dismissed
as time-barred.
I. BACKGROUND
On January 15, 2008, petitioner pled
guilty to manslaughter in the second degree
and hindering prosecution in the first degree
in the County Court, Suffolk County. He was
sentenced on February 13, 2008, to two
concurrent terms of two and one-third to
seven years of incarceration.1
More than one year later, petitioner filed
a second motion to vacate his judgment of
conviction. That motion, dated July 11,
2012, presented three different arguments:
that his attorney coerced him into pleading
guilty, that his counsel was ineffective for
failing to advise him of the immigration
consequences of his plea, and that he was
improperly
convicted
of
hindering
prosecution. The Supreme Court denied that
motion on December 10, 2012, and the
Appellate Division denied leave to appeal on
February 5, 2013.
Petitioner’s attorney filed a brief with the
Appellate Division, Second Department,
pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there were no nonfrivolous issues that could be raised on
petitioner’s behalf. The Appellate Division
agreed with petitioner’s counsel and affirmed
the conviction on June 15, 2010. See People
v. Singh, 902 N.Y.S.2d 393 (N.Y. App. Div.
2010). Petitioner was granted permission to
file a pro se brief, but he never filed one, and
he did not seek leave to appeal to the Court of
Appeals. Petitioner was served with a copy
of the Appellate Division’s order and a
Notice of Entry on June 21, 2010.
Petitioner filed the present petition on
February 19, 2013. On March 11, 2013, the
Court ordered respondent to file a limited
answer within thirty days addressing whether
the petition was timely. On April 10, 2013,
respondent filed the present motion to
dismiss. Petitioner requested two extensions
of time to file a brief in opposition, on May
15 and June 10, 2013, and the Court granted
both requests. On July 3, 2013, the Court
ordered petitioner to respond to the motion by
August 1, 2013, but petitioner has never
responded.
On February 17, 2010, prior to the
affirmance of his conviction, petitioner filed
a motion to vacate his judgment of conviction
in the Suffolk County Supreme Court. That
motion raised three of the same arguments as
the current petition: that the charges against
him had been barred by the statute of
limitations, that Suffolk County was an
improper venue, and that his counsel was
ineffective for failing to ensure the presence
II. DISCUSSION
Respondent seeks to dismiss the instant
habeas corpus petition because petitioner
failed to file his petition within the applicable
1
For the dates and events described in this section of
the Memorandum and Order, the Court relies on the
Affirmation submitted by counsel for respondent, in
compliance with the Court’s order dated March 11,
2013. Petitioner has not filed any responsive pleading
nor presented any reason for the Court to question the
accuracy of counsel for respondent’s Affirmation.
2
filed application for State post-conviction or
other collateral review with respect to the
pertinent judgment or claim is pending shall
not be counted toward any period of
limitation . . . .” 28 U.S.C. § 2244(d)(2). The
Second Circuit has held that “[a] state-court
application or motion for collateral relief is
‘pending’ from the time it is first filed until
finally disposed of and further appellate
review is unavailable under the particular
state’s procedures.” Bennett v. Artuz, 199
F.3d 116, 120 (2d Cir. 1999); see also Carey
v. Saffold, 536 U.S. 214, 217, 220-21 (2002);
Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000); Gant v. Goord, 430 F. Supp. 2d 135,
138 (W.D.N.Y. 2006).
statute of limitations provided by 28 U.S.C.
§2244(d)(1). For the reasons set forth below,
this Court concludes that the petition is
untimely under Section 2244(d), and that
there is no basis for equitable tolling of the
statute of limitations.
A. Statute of Limitations
The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) imposes a
one-year statute of limitations on state
prisoners seeking habeas corpus review in
federal court. 28 U.S.C. § 2244(d)(1). The
statute begins to run from the latest of:
(A) the date on which the
[petitioner’s]
judgment
[of
conviction] became final by the
conclusion of direct review or the
expiration of the time for seeking
such review;
In the instant case, only subsection (A)
could be applicable to this habeas petition.
As set forth below, the petition is untimely
under Section 2244(d)(1)(A).
Pursuant to Section 2244(d)(1)(A), the
statute of limitations began to run on the date
petitioner’s conviction became final.
Petitioner was convicted on January 15,
2008, and sentenced on February 13, 2008.
More than two years later, petitioner was
served with a Notice of Entry informing him
that his conviction had been affirmed by the
Appellate Division. The date of service of
the Notice of Entry was June 21, 2010.
Petitioner’s time to appeal expired thirty days
later, on July 21, 2010, and on that date his
conviction became final. See Vasquez v.
Martuscello, No. 11-CV-2263 (JFB), 2011
WL 6740556, at *3 (E.D.N.Y. Dec. 22, 2011)
(citing N.Y.C.P.L. § 460.10(5) and noting
that “the conviction becomes final thirty days
after the service of Notice of Entry.”).
(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 statute of limitations would thus
begin to run July 21, 2010, unless it was
tolled by either of petitioner’s two postconviction motions. Under AEDPA, the
“time during which a properly filed
28 U.S.C. § 2244(d)(1)(A-D). Pursuant to
AEDPA, “[t]he time during which a properly
3
Again, granting petitioner the latest possible
limitations date of March 28, 2012, the
second motion to vacate occurred outside of
the one-year limitations period and cannot
reset it. See Smith, 208 F.3d at 16–17 & n. 2;
see also Bell v. Herbert, 476 F. Supp. 2d 235,
244 (W.D.N.Y. 2007) (“A state-court
collateral attack on a conviction cannot toll
an already expired limitations period; nor
does a belatedly filed state-court collateral
attack serve to start the limitations period
running anew.”).
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be
counted toward any period of limitation.” 28
U.S.C. § 2244(d)(2).
Respondent concedes that petitioner’s
first motion to vacate tolls the statute of
limitations from the date that petitioner’s
conviction became final (July 21, 2010) until
the Appellate Division denied him leave to
appeal the Supreme Court’s denial of his
motion to vacate (November 17, 2010).
Therefore, the statute of limitations began to
run on November 17, 2010, and petitioner
would have had to file the instant petition
within one year of that date.
At the very latest, Singh had to file his
petition by March 28, 2012 for it to have been
timely. Accordingly, because he filed on
February 19, 2013, the Court concludes that
the petition is untimely.
Petitioner did make one additional appeal
with respect to his motion to vacate, and it
was not denied until March 28, 2011.
Respondent argues that this final appeal did
not toll the statute of limitations because it
sought leave to appeal a non-appealable
order: namely, the Appellate Division’s
denial of leave to appeal the decision of the
Supreme Court.
There is support for
respondent’s view, see People v. Williams,
342 N.Y.S.2d 75 (N.Y. App. Div. 1973), but
out of an abundance of caution, this Court
will assume that the statute of limitations
period was tolled until March 28, 2011. Even
granting that assumption to petitioner, the
instant petition is untimely because it was not
filed by March 28, 2012. Instead, it was filed
nearly one year later, on February 19, 2013.
B. Equitable Tolling of the Statute of
Limitations
Although the instant petition is untimely,
in “rare and exceptional” circumstances, the
one-year statute of limitations is subject to
equitable tolling. See Smith, 208 F.3d at 17
(citation and internal quotation marks
omitted); see also Warren v. Garvin, 219
F.3d 111, 113 (2d Cir. 2000). In order to
obtain the benefit of equitable tolling, a
petitioner must show: (1) that “extraordinary
circumstances prevented him from filing his
petition on time”; and (2) that he “acted with
reasonable diligence throughout the period he
seeks to toll.” Smith, 208 F.3d at 17 (citation
omitted). The petitioner bears the burden to
affirmatively show that he is entitled to
equitable tolling. See Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005); Muller v. Greiner,
139 F. App’x 344, 345 (2d Cir. 2005).
The Court’s conclusion that this petition
is time-barred is in no way affected by
petitioner’s second motion to vacate, which
petitioner did not file until July 11, 2012. A
state collateral proceeding commenced after
the one-year limitations period has already
expired does not reset the start of the
limitations period. See Smith v. McGinnis,
208 F.3d 13, 16–17 & n. 2 (2d Cir. 2000).
In the instant case, petitioner has failed to
demonstrate any extraordinary circumstances
that prevented him from properly filing his
habeas corpus petition in a timely fashion.
No such circumstances are described in his
4
petition, and petitioner has failed to raise any.
He has not submitted a brief in opposition to
the present motion to dismiss, even after the
Court granted him two extensions to do so.2
For the same reason, there is no evidence that
petitioner acted with reasonable diligence
during the period he seeks to toll, which this
Court assumes is the period after March 28,
2011. It was more than one year later, in July
of 2012, when petitioner filed his ill-fated
second motion to vacate, and there has been
no showing that petitioner acted diligently
with respect to this petition during that time
period. Thus, petitioner has not made either
showing required to justify equitable tolling,
and no aspect of his petition suggests that
equitable tolling is appropriate in this case.
III. CONCLUSION
For the foregoing reasons, the petition for
a writ of habeas corpus is dismissed as timebarred. Because Petitioner has failed to make
a substantial showing of a denial of a
constitutional right, no certificate of
appealability shall issue. See 28 U.S.C.
§ 2253(c)(2). The Clerk of the Court shall
enter judgment accordingly and close the
case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Petitioner has also not made a claim of
actual innocence. See Whitley v. Senkowski,
317 F.3d 223, 225 (2d Cir. 2003) (holding
that it was in error to dismiss a petition
claiming actual innocence, on statute of
limitations grounds, without further
analysis). Even if he had made a claim of
actual innocence, nothing in the petition
suggests that an innocence claim would have
any merit. Accordingly, the petition is
dismissed as time-barred.
Dated: January 7, 2014
Central Islip, NY
***
Petitioner is proceeding pro se. Respondent
is represented by Thomas C. Costello,
Suffolk County District Attorney’s Office,
200 Center Drive, Riverhead, NY 11901.
2
Assuming arguendo that petitioner argued that he did
not speak English (based on a similar claim in his
petition), his difficulty with English was not an
“extraordinary circumstance” that warrants equitable
tolling. See Vasquez, 2011 WL 6740556, at *4
(collecting cases).
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?