Holmes v. Capra

Filing 11

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed a s untimely and neither statutory nor equitable tolling of the statute of limitations applies. 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); Lucidore 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 Memorandum and 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). The Clerk of the Court is directed to mail a copy of this Electronic Order and Attached Written Memorandum and Order to pro se petitioner, enter judgement and close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/8/2018. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BRANDON HOLMES, pro se,
:
:
Petitioner,
:
:
MEMORANDUM AND ORDER
-against:
14-CV-06373 (DLI)(LB)
:
MICHAEL CAPRA,
:
:
Respondent.
:
:
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DORA L. IRIZARRY, Chief United States District Judge:
Petitioner Brandon Holmes (“Petitioner”), proceeding pro se and currently incarcerated at
Sing Sing Correctional Facility in Ossining, New York, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner filed the petition on October 28, 2014, challenging his June 27, 1989
conviction for murder in the second degree in Kings County Supreme Court. By Order issued
October 31, 2014, Petitioner was directed to show cause why the Petition should not be dismissed
as time barred under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214. Petitioner responded on March 31, 2015, attaching a letter dated
November 15, 2014 (“March 31 Letter”). (See Dkt. Entry No. 4.) Without leave from the Court,
Petitioner supplemented his response with letters dated March 28, 2015 (“March 28 Letter”), and
December 22, 2015 (“Dec. 22 Letter”). (See Dkt. Entry Nos. 5-6.) On January 5, 2016, the Court
ordered Respondent to file a response and noting it would consider Petitioner’s additional
arguments.1
Petitioner argues that he is entitled to equitable tolling and is actually innocent of the crime
of conviction. In response, Respondent argues that equitable tolling is inapplicable and that

By Order dated February 24, 2016, this Court stated that it would not consider Petitioner’s other untimely
submissions submitted on January 25, 2016 and February 17, 2016. (See Dkt. Entry Nos. 9, 10.)
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Petitioner’s actual innocence claim is meritless. (See Reply in Opposition (“Opp.”), Dkt. Entry
No. 8.) For the reasons set forth below, the Petition is denied as untimely.
DISCUSSION
AEDPA establishes a one-year statute of limitations for filing a § 2254 petition. 28 U.S.C.
§ 2244(d)(1). The one-year limitations period runs from the “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C.A. § 2244 (d)(1)(A).2 A conviction becomes final when the 90-day period for
seeking a writ of certiorari expires. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). AEDPA
contains a statutory tolling period, which provides that “[t]he 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 toward any period of limitation under this
subsection.” 28 U.S.C. § 2244(d)(2); Acosta v. Artuz, 221 F.3d 117, 119 (2d Cir. 2000). In
addition to the statutory tolling period, AEDPA’s one-year limitations period is subject to the
doctrine of equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010); Jenkins v. Greene,
630 F.3d 298, 302 (2d Cir.2010).
Petitioner’s conviction became final on February 22, 1994 when the United States Supreme
Court denied his petition for a writ of certiorari and prior to the effective date of AEDPA. As a
result, Petitioner had until April 24, 1997, or one year after the effective date of AEDPA, to file
his habeas corpus petition. See Wood v. Milyard, 556 U.S. 463 (2012) (“For a prisoner whose
judgment became final before AEDPA was enacted, the one-year limitations period runs from the
AEDPA’s effective date: April 24, 1996.”); Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).

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Petitioner asserts, in passing, that subsections (B) and (D) of § 2244(d)(1) apply. However, Petitioner does not state
any facts from which the Court can conclude that these subsections are applicable. For instance, Petitioner concedes
that he knew about adolescent brain science research since November 2009, almost five years before he filed his
Petition.

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However, Petitioner did not file his petition until October 28, 2014, more than seventeen years
after the limitations period expired. Thus, the Petition is untimely and barred by 28 U.S.C. §
2244(d), unless Petitioner can demonstrate that the one-year period between April 24, 1996, when
AEDPA took effect, and April 24, 1997, was either statutorily or equitably tolled. See Davis v.
Racette, 99 F. Supp.3d 379, 385 (E.D.N.Y. 2015).
Statutory tolling is not applicable between April 24, 1996 and April 24, 1997 because, as
both parties concede, Petitioner did not have a state post-conviction motion pending. (March 31
Letter at 3, 8; Opp. at 16.) See Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir.2009) (“It is
clear from the statutory language that the possibility of filing an application for post-conviction
relief is not enough to toll the limitations period[.]”). Petitioner claims to have filed a claim in the
New York State Court of Claims in 1996 seeking compensation for the destruction of his trial
transcripts by prison officials. However, because that action did not seek collateral review of the
judgment of the conviction, it is inapposite for purposes of statutory tolling. Additionally, if such
a suit could toll the limitations period, “prisoners could substantially extend the time for filing
federal habeas petitions by pursuing in state courts a variety of applications that do not challenge
the validity of their convictions.” Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001). Instead,
Petitioner filed his motion to vacate the judgment pursuant to New York Criminal Procedure Law
§ 440 on June 29, 1998, over one year after the limitations period expired. (Opp. at 7, 16.) This
filing cannot toll an already expired statute of limitations. See Davis, 99 F. Supp.3d at 386;
Breeden v. Lee, 2010 WL 1930223, at *3 (E.D.N.Y. May 10, 2010); Sorce v. Artuz, 73 F. Supp.2d
292, 297 (E.D.N.Y. 1999).
Petitioner is not entitled to equitable tolling either. A court may equitably toll the
limitations period where the petitioner demonstrates that “he has been pursuing his rights

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diligently” and “that some extraordinary circumstance stood in his way and prevented timely
filing.” Holland, 560 U.S. at 649. Petitioner has not demonstrated an extraordinary circumstance.
His only justification for not filing within the one-year period is that “as late as January 1996
prison officials destroyed [his] trial transcripts.” (March 31 Letter at 3.) The loss or inaccessibility
of legal materials alone is not an extraordinary circumstance. See e.g., Williams v. Heath, 2012
WL 580224, at *3 (E.D.N.Y. Feb. 16, 2012); Rush v. Lempke, 2011 WL 477807, at *7 (E.D.N.Y.
Feb. 2, 2011). Even if it were, Petitioner has not established the necessary causal relationship
between the extraordinary circumstance and the untimely filing. See Jenkins, 630 F.3d at 303.
Petitioner’s remaining arguments solely address the time period after the one-year statute of
limitations expired, and, therefore, are not relevant. Nonetheless, the Court notes that Petitioner
did not act with reasonable diligence or demonstrate an extraordinary circumstance for the many
years he seeks to toll. See Harper v. Ercole, 648 F.3d 132, 134 (2d Cir. 2011) (finding that
petitioner was “required to show reasonable diligence in pursuing his claim throughout the period
he seeks to have tolled.”)
Next, the Court considers Petitioner’s actual innocence claim. A credible showing of actual
innocence may allow a prisoner to pursue his constitutional claims on the merits notwithstanding
the existence of a procedural bar to relief. McQuiggin v. Perkins, ___ U.S. ____, 133 S.Ct. 1924,
1931 (2013); Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012). An actual innocence claim must
be both “credible” and “compelling.” Rivas, 687 F.3d at 541. For the claim to be “credible,” it
must be supported by “‘new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.’”
Id. (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). For the claim to be “compelling,” the

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petitioner must demonstrate that “more likely than not, in light of the new evidence, no reasonable
juror would find him guilty beyond a reasonable doubt[.]” Id.
Petitioner’s claim of actual innocence is premised on scientific research, generally called
“adolescent brain science,” which Petitioner discovered in 2009. (March 31 Letter at 4, 7.) At the
age of sixteen, Petitioner shot an unarmed guard at a grocery store and later was convicted of
second degree murder for the crime. (Opp. at 2, 5.) Since he was an adolescent at the time of the
murder, Petitioner argues that this research proves that he is innocent, did not have the necessary
mental state, or did not intend to commit second degree murder. (March 31 Letter at 5-9; March
28 Letter at 2.)
While “adolescent brain science” research may aid a petitioner in presenting a claim that
is both credible and compelling, such is not the case here. Petitioner’s claim fails because he has
not included any new exculpatory scientific evidence in his submissions.3 Petitioner’s new
evidence consists of one short newspaper article that mentions the research and multiple broad
unsubstantiated statements that, because he was sixteen at the time of the crime, the general body
of research proves his innocence. Notably, Petitioner does not include any of the actual research
in his submissions. This falls far short of the showing necessary to establish that a claim is credible
and compelling. See Rivas, 687 F.3d at 546–47 (finding that the petitioner had “a close case” that
met the Schlup standard where petitioner presented reliable scientific expert testimony specific to
the case, but noting that the Second Circuit “would not expect a lesser showing of actual innocence
to satisfy the Schlup standard.”) “Establishing actual innocence is not easy,” Johnson v. Bellnier,
508 F. App’x 23, 25 (2d Cir. 2013), and merely mentioning the existence of general scientific

This Court has noted previously that “it is an open question in this Circuit whether evidence, to qualify as ‘new’ for
purposes of an actual innocence claim, must have been unavailable at the time of trial, or simply not presented to the
trier of fact at trial.” Williams v. Bradt, 2016 WL 1273228, at *11 (E.D.N.Y. Mar. 30, 2016). The Court need not
resolve this question at this time.
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research and asserting that it must apply to the specific case, is insufficient to meet the
“demanding” actual innocence standard. See McQuiggin, 133 S.Ct. at 1936 (“We stress once again
that the Schlup standard is demanding.”). Based on the limited information in the Petition, the
Court cannot conclude that, had Petitioner presented adolescent brain science research at trial,
“more likely than not ... no reasonable juror would [have found him] guilty beyond a reasonable
doubt.” Rivas, 687 F.3d at 541; Adams v. Wenerowicz, 2013 WL 6692742, at *1 n. 2 (E.D. Pa.
Dec. 19, 2013) (rejecting actual innocence claim where petitioner relied on adolescent brain
development research because “jury could still reasonably find beyond a reasonable doubt that a
particular adolescent offender is guilty of murder.”)
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 is dismissed as untimely and neither statutory nor equitable tolling of the statute of limitations
applies. 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); Lucidore 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 Memorandum and 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
March 8, 2018
/s/
DORA L. IRIZARRY
Chief Judge
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