Sabino v. NYS Division of Parole
MEMORANDUM AND ORDER: The court directs Petitioner to show cause by written affirmation, within thirty days from receipt of this Memorandum and Order, why the petition should not bedismissed as time-bar red by the AEDPA's one year statute of limitations. So Ordered by Judge Nicholas G. Garaufis on 10/21/2013. (c/m to pro se) (Attachments: # 1 Petitioner's Affirmation) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstNYS DIVISION OF PAROLE,
NICHOLAS G. GARAUFIS, United States District Judge.
Petitioner Saul Sabino, appearing prose and currently on parole, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner paid the statutory filing fee to commence this
proceeding. The court considers this petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases. For the reasons set forth below, the petition appears to be time-barred by the oneyear statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). The court directs Petitioner to show cause within thirty days of receipt of this
Memorandum and Order why the petition should not be dismissed as time-barred.
On February 22, 2008, Petitioner pled guilty to robbery in the first degree, grand larceny
in the fourth degree, and criminal possession of a weapon in the third degree. (Pet. (Dkt. 1) ~ 5.)
He was sentenced to seven years imprisonment and five years of post-release supervision before
the Supreme Court of the State ofNew York, Kings County.
(MJ He now seeks habeas corpus,
claiming that he did not understand the import of his guilty plea because of mental illness. (Id.
Petitioner states that he filed a motion for an extension of time to appeal under
Criminal Procedure Law§ 460.30, but that the motion was denied. (Id.~ 9.) However, he fails
to provide the date on which he filed the motion and the date on which the motion was denied.
(See Id.~ 9). Petitioner further states that he filed post-conviction ("440") motions on April 14,
2011, and September 9, 2011, seeking to vacate the judgment. (Id.~ 11.) However, the state
court noted that "Defendant has not filed a notice of appeal." (See Id. Attach. A, Nov. 21, 2011,
Decision and Order.) Petitioner's post-conviction motions were denied on November 21, 2011.
(Id.) Petitioner filed for leave to appeal from the denial and this too was denied on April, 30,
2012. (Id., Attach. B, Decision & Order.) Petitioner's motion for reargument was also denied on
September 17, 2012. (M!J Petitioner is currently on parole. (Id. at 1S.) Petitioner filed his
petition for a writ of habeas corpus on June 13, 2013.
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)(l). 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 of the time for seeking such
(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 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
28 U.S.C. § 2244(d)(l)(A)-(D). Under subsection (A), the petition appears untimely. Petitioner
states no facts suggesting that any other subsection applies.
Petitioner's conviction appears to have become final on or about March 24, 2008, upon
expiration of the thirty-day period for filing a direct appeal with the Appellate Division. Bethea
v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002); N.Y. Crim. Proc. L. § 460.IO(l)(a). In order to be
timely, this petition should have been filed on or before March 24, 2009. Instead, this petition
was filed on June 13, 2013, well after the one-year limitations period had already expired.
Therefore, unless the Petitioner can show that the one-year statute of limitations period should be
tolled (should not count as wasted time), the petition is barred by 28 U.S.C. § 2244(d) as
untimely. Petitioner can show that the period should be tolled under the statute based on the date
of his appeal, or he can show that it should be tolled as a matter of equity because of the
extraordinary difficulties he encountered.
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 postconviction proceeding, however, does not reset the one-year period. Section 2244(d)(2) merely
excludes the time a post-conviction motion is under submission from the calculation of the oneyear period of limitation. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). See
also Evans v. Senkowski, 228 F. Supp. 2d 254, 260 (E.D.N.Y. 2002) (explaining that AEDPA's
tolling provision "stops, but does not reset, the clock from ticking on the time in which to file a
habeas petition. It cannot revive a time period that has already expired.") (citing Smith, 208 F.3d
Petitioner filed his New York Civil Procedure Law section 440 motions in 2011, well
after the one year limitations period expired in 2009. Thus, he cannot avail himself of statutory
tolling for the period these section 440 motions were pending before the state courts. However,
it is unclear whether Petitioner's motion for an extension of time to file an appeal could allow for
some tolling of the period of limitations. The reason it is unclear is that Petitioner fails to
provide the date he filed the motion for an extension of time to appeal and the date on which this
motion was denied. In order to decide the issue of statutory tolling, the court will need proof of
these dates from Petitioner.
B. Equitable Tolling
Even if statutory tolling does not render this petition timely-filed, the limitations period
may also be equitably tolled, but only if Petitioner (1) "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) (internal quotation omitted). Equitable tolling is
designed to allow flexibility when a petitioner has been unable to file successfully, despite his
best efforts to do so.
The Second Circuit has established a "high bar to deem circumstances sufficiently
'extraordinary' to warrant equitable tolling." Dillon v. Conway, 642 F.3d 358, 363 (2d Cir.
2011 ). A petitioner must also show that the extraordinary circumstances stopped him from being
able to file his petition on time and how they did so. Valverde v. Stinson, 224 F.3d 129, 134 (2d
Cir. 2000). Ifhe could have filed on time, despite the extraordinary circumstance, then he will
not be able to make this showing. Id. Furthermore, "the proper inquiry is not how unusual the
circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe
an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period." Diaz
v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008). Situations that might justify equitable tolling include
confiscation of a petition, an appeals court failing to inform a petitioner that his appeal was
denied, or a lawyer's failure to file a habeas petition when explicitly directed to do so. Dillon,
642 F.3d at 363 (citations omitted). The Petitioner is responsible for showing that such
circumstances exist. Muller v. Greiner, 139 F. App'x 344, 345 (2d Cir. 2005).
If circumstances truly beyond Petitioner's control explain his late filing, then it is
possible that he will be allowed to file the current petition. To date, Petitioner has not offered
any arguments suggesting that equitable tolling should apply to this petition, and he does not
explain the why he did not file his petition within a year after his conviction became final.
Accordingly, the court directs Petitioner to show cause by written affirmation, within
thirty days from receipt of this Memorandum and Order, why the petition should not be
dismissed as time-barred 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).
For Petitioner's convenience, an affirmation form is attached to this Order. In the
affirmation, Petitioner must present any facts that would support either statutory tolling or
equitable tolling of the period of limitations, if applicable. He should provide dates related to the
state court action so that the court can understand whether he filed within the statutory time limit.
He should also provide information about difficulties that he encountered in filing his petition
that are beyond the normal difficulties associated with working on a petition while one is in
prison, and he should provide information about the steps that he took to try to overcome those
At this time, no response or answer shall be required from Respondent and all further
proceedings shall be stayed for thirty days or until Petitioner has complied with this Order.
If Petitioner fails to comply with this Order within the time allowed, the petition shall be
dismissed as time-barred under 28 U.S.C. § 2244(d). If filed within thirty days, Petitioner's
affirmation shall be reviewed pursuant to Rule 4 of the Habeas Rules and 28 U.S.C. § 2244(d).
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS
United States District Judge
Dated: Brooklyn, New York
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