Pitts v. Hynes et al

Filing 7

ORDER granting [] Motion for Leave to Proceed in forma pauperis and ORDER TO SHOW CAUSE WHY THE INSTANT PETITION SHOULD NOT BE DISMISSED AS TIME BARRED: For the reasons stated in the attached Memorandum and Order, petitioner is directed to show cau se by affirmation, within thirty (30) days from the date of this Order, why the AEDPA statute of limitations should not bar the instant petition. No response shall be required from respondents at this time and all further proceedings shall be stay ed for thirty (30) days or until the petitioner has complied with this Order. If petitioner fails to comply with this Order within the time allowed, the instant petition may be dismissed as time-barred. Because the petitioner has failed to make a s ubstantial showing of the denial of a constitutional right, any appeal from this Order would not be taken in good faith and a certificate of appealability shall not issue. The Clerk of Court is directed to send a copy of this Memorandum and Order to petitioner, and to note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 8/5/2013. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
STEVEN PITTS,
MEMORANDUM AND ORDER
13-CV-3934 (RRM)

Petitioner,
- against DISTRICT ATTORNEY CHARLES J. HYNES
and PRESIDING JUSTICE MICHAEL J.
BREENAN,
Respondents.
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ROSLYNN R. MAUSKOPF, United States District Judge.

On June 25, 2013, pro se petitioner Steven Pitts filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern
District of New York. The petition was transferred to this Court on July 12, 2013. Petitioner’s
request to proceed in forma pauperis is granted. For the reasons set forth below, petitioner is
directed to submit an affirmation, within thirty (30) days of the date of this Order, showing cause
why the petition should not be dismissed as time-barred
BACKGROUND
Petitioner pled guilty to second degree assault on October 20, 2009 and was sentenced on
June 2, 2010 in the New York Supreme Court, Kings County. (Pet. ¶ 2.) The Supreme Court of
New York, Appellate Division, Second Department, affirmed the conviction on June 7, 2011.
People v. Pitts, 925 N.Y.S.2d 365, 85 A.D.3d 823, 2011 WL 2298726 (N.Y. App. Div. 2011).
His application for leave to appeal to the New York Court of Appeals was denied on September
27, 2011. People v. Pitts, 17 N.Y.3d 861, 932 N.Y.S.2d 26, 956 N.E.2d 807 (2011). Petitioner
did not appeal to the United States Supreme Court. Petitioner states that he filed a petition for a

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writ of error coram nobis on January 26, 2012, which was denied by the New York Appellate
Division on June 6, 2012. (Pet. ¶ 11(c).)
In the section of the petition related to timeliness, petitioner asserts that he “had no
appointed counsel for contin[u]ous appeal.” (Pet. ¶ 18.) The instant petition is accompanied by
an application requesting the appointment of pro bono counsel.
DISCUSSION
I.

The AEDPA Statute of Limitations

In enacting the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Congress established a one-year period of limitations for the filing of an application for a writ of
habeas corpus by a person in custody pursuant to a State court judgment. See 28 U.S.C. §
2244(d)(1). The AEDPA provides that the limitation period shall run from 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, 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.
28 U.S.C. § 2244(d)(1). If a “properly filed” application for State post-conviction or
other collateral review with respect to the judgment of conviction was “pending” at any time
during that one-year period, the time during which this application was pending does not count
toward the one-year period. 28 U.S.C. § 2244(d)(2).
The AEDPA statute of limitations may be equitably tolled. Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000) (per curiam), cert. denied, 531 U.S. 840 (2000). “Equitable tolling,
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however, is only appropriate in ‘rare and exceptional circumstances.’” Smaldone v. Senkowski,
273 F.3d 133, 138 (2d Cir. 2001), cert. denied, 535 U.S. 1017 (2002) (quoting Smith, 208 F.3d at
17). A petitioner “must demonstrate that he acted with ‘reasonable diligence’ during the period
he wishes to have tolled, but that despite his efforts, extraordinary circumstances ‘beyond his
control’ prevented successful filing during that time.” Id.; see also Baldayaque v. United States,
338 F.3d 145, 152-53 (2d Cir. 2003), Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000).
A district court can “raise a petitioner’s apparent failure to comply with the AEDPA
statute of limitation on its own motion.” Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). See
also Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted, but not
obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition”). However,
“unless it is unmistakably clear from the facts alleged in the petition, considering all of the
special circumstances enumerated in Section 2244(d)(1), equitable tolling, and any other factors
relevant to the timeliness of the petition, that the petition is untimely, the court may not dismiss a
Section 2254 petition for untimeliness without providing petitioner prior notice and opportunity
to be heard.” Acosta, 221 F.3d at 125 (citing Snider v. Melindez, 199 F.3d 108, 113 (2d Cir.
1999) and Lugo v. Keane, 15 F.3d 29, 30 (2d Cir. 1994)).
II.

Application of the Law to this Case

The facts alleged in the petition are insufficient to determine whether petitioner’s
application for habeas corpus relief pursuant to 28 U.S.C. § 2254 was filed within the statute of
limitations. The Court of Appeals denied leave to appeal on September 27, 2011. As petitioner
did not pursue his appeal to the United States Supreme Court, the judgment of conviction
became final ninety days later on December 26, 2011, when the time to seek a writ of certiorari

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expired. If 28 U.S.C. § 2244(d)(1)(B)-(D) are inapplicable to this case, petitioner had one year
from that date, until December 26, 2012, to file his petition.
Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled from January 26, 2012 to
June 6, 2012 while his state petition for post-conviction relief was pending. Between the time
the conviction became final on December 26, 2011 and petitioner filed his motion for postconviction relief on January 26, 2012, 31 days of the limitations period had elapsed. After the
petition for collateral relief was denied on June 6, 2012, petitioner allowed a further 384 days to
elapse before he filed the instant petition on June 25, 2013. Accordingly, the petition is untimely
filed.
Petitioner may benefit from equitable tolling if he can demonstrate “that he acted with
‘reasonable diligence’ during the period he wishes to have tolled, but that despite his efforts,
extraordinary circumstances ‘beyond his control’ prevented successful filing during that time.”
Smaldone, 273 F.3d at 138. Petitioner asserts that he lacked access to counsel throughout the
post-conviction period and had to continue the process pro se, but he has not demonstrated any
extraordinary circumstance that would have prevented him from filing his petition within the
limitations period. The Second Circuit has held that equitable tolling is not appropriate
“whenever a petitioner must face the daunting procedural obstacles to obtaining habeas review
without the assistance of counsel.” Jenkins v. Greene, 630 F.3d 298, 305 (2d Cir. 2010); see also
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends to
the first appeal of right, and no further.”) and McCleskey v. Zant, 499 U.S. 467, 495 (1991)
(noting that the Supreme Court’s precedents do not “imply that there is a constitutional right to
counsel in federal habeas corpus”).

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CONCLUSION
Accordingly, petitioner is directed to show cause by affirmation, within thirty (30) days
from the date of this Order, why the AEDPA statute of limitations should not bar the instant
petition.1 See Day, 547 U.S. at 209-10; Acosta, 221 F.3d at 125. If he believes that 28 U.S.C.
§ 2244(d)(1)(B), (C), or (D) apply to this case or should he have a basis to ask the Court to
equitably toll the statute of limitations, he shall present the facts to the Court in his affirmation
and shall append to his affirmation documentary evidence, if available, supporting his
allegations.
No response shall be required from respondents at this time and all further proceedings
shall be stayed for thirty (30) days or until the petitioner has complied with this Order. If
petitioner fails to comply with this Order within the time allowed, the instant petition may be
dismissed as time-barred. Because the petitioner has failed to make a substantial showing of the
denial of a constitutional right, any appeal from this Order would not be taken in good faith and a
certificate of appealability shall not issue.
The Clerk of Court is directed to send a copy of this Memorandum and Order to
petitioner, and to note the mailing on the docket.

SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
August 5, 2013

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_________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
STEVEN PITTS,
PETITIONER’S AFFIRMATION
13-CV-3934 (RRM)

Petitioner,
- against DISTRICT ATTORNEY CHARLES J. HYNES
and PRESIDING JUSTICE MICHAEL J.
BREENAN,
Respondents.
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STATE OF NEW YORK
}
} ss:
COUNTY OF __________ }

I, STEVEN PITTS, make the following affirmation under the penalties of perjury:
1.

I am the petitioner in this action and I respectfully submit this affirmation in

response to the Court’s order dated _____________, 2013. The instant petition should not be
time-barred by the AEDPA’s one-year statute of limitations because
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2.

In view of the foregoing, it is respectfully submitted that the instant petition

should be permitted to proceed.
Dated: ______________

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Signature
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Address
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City, State & ZIP

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