Nunez v. Miller

Filing 37

ORDER denying 34 Motion to Amend/Correct/Supplement. For the reasons stated in the attached Memorandum and Order, petitioner's Motion to Amend is denied. The Clerk of Court is respectfully directed to mail a copy of the Memorandum and Order to pro se petitioner and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 3/22/2019. (Abugo, Uzezi)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RAUL NUNEZ,

MEMORANDUM AND ORDER
DENYING MOTION TO AMEND

Plaintiff,
-against-

15-cv-1369(KAM)

SUPERINTENDENT CHRISTOPHER MILLER,
Defendant.
------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Presently before the court is petitioner Raul Nunez’s
May 3, 2018 Motion to Amend his Petition for Writ of Habeas
Corpus.

(See ECF No. 34, Motion to Amend; ECF No. 1, Petition

for Writ of Habeas Corpus.)

Respondent opposed the application

to amend the petition on June 11, 2018, (See ECF No. 35,
Opposition to Motion to Amend), and, at the court’s request,
submitted the October 11, 2017 decisions on petitioner’s §

440.20 motion on March 21, 2019.
State Court Record.)

(ECF No. 36, Supplemental

For the reasons stated below, petitioner’s

Motion to Amend is denied.
I.

Background

Petitioner filed his original habeas petition on March
16, 2015.

Respondent filed its opposition to the petition on

August 7, 2015, and petitioner filed his reply on December 15,
1

2015. (See ECF No. 9, Opposition to Habeas Petition; ECF No. 23,
Memorandum in Support of Habeas Petition.)

On October 24, 2016,

petitioner moved for leave to file a supplemental habeas
petition and simultaneously filed the supplemental petition,
after completion of his post-conviction motions for relief: a
motion for writ of coram nobis, and a motion pursuant to
Criminal Procedure Law (“N.Y.C.P.L.”) § 440.10.
24, Motion for Leave.)

(See ECF No.

On December 12, 2016, the court granted

petitioner’s motion for leave to file the supplemental petition,
and on March 13, 2017, respondent filed an opposition to the
supplemental petition. (See ECF No. 24, Opposition to Motion for
Leave.)

By motion dated August 25, 2017, petitioner moved in

state court to set aside his sentence pursuant to N.Y.C.P.L.R. §
440.20, and on September 26, 2017, respondent opposed that
motion.

(See ECF No. 36-1, State Court Record, at 3-24, 4-50.)

On October 11, 2017, the Supreme Court, Queens County, denied
petitioner’s § 440.20 motion.

(Id. at 51-56.)

Petitioner’s

motion for leave to appeal the October 11, 2017 decision to the
Appellate Division was denied on March 15, 2018.

(See ECF No,

34, Motion to Amend at 3.)
II.

Legal Standard

It is well established that pursuant to Rule 15 of the
Federal Rules of Civil Procedure, leave to amend should be
freely given, when justice so requires.
2

See Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).

This rule applies

with equal force to the adjudication of habeas corpus petitions.
Theard v. Artus, No. 09-CV-5702, 2011 WL 4056054, at *1
(E.D.N.Y. Sept. 1, 2011).

Leave to amend is properly denied,

however, when an amendment would be futile.

Jones v. New York

State Div. of Military & Naval Affairs, 166 F.3d 45, 50 (2d Cir.
1999).
III.

Discussion

Petitioner’s Motion to Amend, though considered timely
because it relates back to the original complaint, attempts to
bring a claim that is futile.

Accordingly, petitioner’s Motion to

Amend is denied.
a. Petitioner’s Proposed Amendment Is Time-Barred
Under the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A-D), there is a
one year statute of limitations for state prisoners bringing
habeas corpus petitions in federal court.

The limitations

period begins to 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;
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(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)(A-D).

“[D]irect review, as used

in Section 2244(d)(1)(A), includes direct review by the United
States Supreme Court via writ of certiorari, and . . . the
limitations period for state prisoners therefore begins to run
only after the denial of certiorari or the expiration of time
for seeking certiorari.”
(2d Cir.).

Williams v. Artuz, 237 F.3d 147, 151

A conviction becomes final when the time for direct

appeal expires or the Supreme Court denies certiorari.

The

Id.

time for seeking review in the Supreme Court expires ninety days
after conclusion of direct review in state court.
Court Rule 13(1).

See Supreme

The one-year statute of limitations can be

tolled only for “[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.”
Petitioner’s judgment of conviction became final on
March 31, 2014, ninety days after petitioner was denied leave to
appeal the New York Appellate Division’s affirmation of his
sentence.

See People v. Nunez, 24 N.Y.3d 1087 (2014).

Prior to

petitioner’s Motion to Amend, petitioner completed two post4

conviction motions: a petition for writ of coram nobis and a
Motion to Vacate Judgment pursuant to Criminal Procedure Law
§440.10.

Petitioner’s coram nobis petition was dated October

19, 2015, and was denied on May 18, 2016.
A.D.3d 983 (N.Y. App. Div. 2016).

People v. Nunez, 139

On June 9, 2016, petitioner

applied to the Court of Appeals for leave to appeal the denial
of leave to appeal the adverse determination of his petition for
writ of coram nobis, however, that application was denied on
August 24, 2016.

People v. Nunez, 28 N.Y.3d 934 (N.Y. Ct. App.

2016).
Petitioner’s § 440.10 motion, dated October 19, 2015,
was denied on January 15, 2016.
Order, at 85.)

(See ECF No 29-1, Decision and

Petitioner sought leave to appeal the denial of

the § 440.10 motion to the New York Supreme Court, Appellate
Division on February 2, 2016, and that motion was denied on June
9, 2016.
95.)

(See ECF No. 29-1, Petition for Leave to Appeal, at

By petition dated June 9, 2016, petitioner applied to the

New York Court of Appeals for leave to appeal the June 9, 2016
denial of leave to appeal.

His application “[was] dismissed

because the order sought to be appealed from [was] not
appealable under CPL §450.90(1).

(See ECF No. 29-1, Order

Denying Leave, at 97.)
Petitioner’s conviction became final on March 31, 2014
and, absent any tolling, plaintiff had until March 31, 2015 to
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bring his claims.

Upon independently recalculating the tolling

periods, the court finds that although the state court motions
toll the one-year statute of limitations, they are insufficient
to render petitioner’s proposed amendment timely. 1

Petitioner

filed a N.Y.C.P.L § 440.20 motion on August 25, 2017,
challenging his sentence.
2 (citing ECF No. 19).)

(See ECF No. 34, Motion to Amend, at
By letter dated May 3, 2018, Petitioner

then moved to amend his habeas petition in the instant
proceeding to add a new claim based on his N.Y.C.P.L § 440.20
petition.

(Id.)

However, as the state court motion was

commenced outside the limitations period, including tolling, it
does not render timely petitioner’s derivative motion to amend
in this court.

Accordingly, petitioner’s May 3, 2018 Motion to

Amend is time barred.
b. Petitioner’s Proposed Amendment Relates Back to
the Original petition
As petitioner’s Motion to Amend was filed well after
the statute of limitations had expired and he asserts no
extraordinary circumstances excusing the delay, his Motion to
Amend can only be granted if the claims he seeks to bring in the

Respondent argues that because the June 9, 2016 §440.10 appeal to the Court
of Appeals was procedurally improper under C.P.L § 450.90(1), it does not toll
the limitations period. (See ECF No. 35, Respondent’s Opposition at 1 n.1.)
Regardless of whether the court considers the June 9, 2016 petition to the Court
of Appeals to toll the limitations period, petitioner’s proposed amendment is
time-barred.
1

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amendment relate back to the original petition.

See Fama v.

Comm'r of Corr. Servs., 235 F.3d 804, 816 (2d Cir.2000); Warren
v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000); Fed.R.Civ.P. 15(c).
An amendment relates back to the original petition if it asserts
claims that arise out of the same conduct, transaction or
occurrence as the original pleading.

235 F.3d at 815-816.

Petitioner does not address whether the claims in his proposed
amendment relate back, however, he seeks to amend the petition
with regard to claims brought in his §440.20 petition.
No. 34 at 1.)

(See ECF

The court, therefore, analyzes whether the claims

brought in the §440.20 petition relate back to the original
petition.
Petitioner’s original habeas petition asserts claims
regarding whether plaintiff’s sentences on certain counts should
have been imposed to run consecutively or concurrently, albeit,
not the specific count referenced in his §440.20 petition.
ECF No. 1, Habeas Petition, at 3.)

(See

Regardless, the issue raised

in his §440.20 petition arises out of the same transaction and
occurrence as that raised in his original petition—petitioner’s
sentencing and the specifics of the sentence imposed by the
state court.

Accordingly, “the original complaint gave the

[respondent] fair notice of the newly alleged claims.”

Fama v.

Comm'r of Corr. Servs., 235 F.3d 804, 815 (2d Cir. 2000) (citing
Wilson v. Fairchild Republic Co., 143 F.3d 733, 738 (2d
7

Cir.1998)).

As the question of notice is “the pertinent

inquiry” in determining whether an amendment relates back to the
original petition, the court finds that petitioner’s amendment
relates back, and the petition is therefore timely.

Id.

c. Petitioner’s Claim Is Futile
Although, under Rule 15 of the Federal Rule of Civil
Procedure, courts favor granting leave to amend where an
amendment relates back to the original pleading, leave to amend
should not be granted where the claim is futile.

Jones, 166

F.3d at 50.
Petitioner’s sole complaint in his § 440.20 petition
is that “his sentence is illegal because the weapon possession
sentence should have been imposed to run concurrently to the
other sentences imposed for the other counts he was convicted
of.”

(See ECF 36-1, State Record at 51 (Decision and Order of

the Supreme Court, Queens County, dated October 11, 2017,
analyzing the claims raised in petitioner’s § 440.20 petition
and denying petitioner’s motion to vacate his sentence).)
Respondent, as it does here, opposed the § 440.20 petition,
arguing that this claim failed, because defendant’s weapon
possession sentence was indeed imposed to run concurrently, and
not consecutively, with his other sentences.

(Id.)

It is clear, from a review of the sentencing
transcript from petitioner’s sentencing, and the state court
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record, that the court did not impose the sentence for
petitioner’s Criminal Possession of a Weapon in the Second
Degree charge to run consecutively to plaintiff’s other
sentences. 2

(Id. at 52-53.) The weapons possession sentence was

imposed to run concurrently.

(Id.)

Accordingly, incorporating

the sole claim made in petitioner’s § 440.20 petition provides
no grounds on which habeas relief may be granted.

Petitioner’s

proposed amendment is therefore futile, and petitioner’s Motion
to Amend is denied.
IV.

Conclusion

For the foregoing reasons, petitioner’s Motion to
Amend is denied, and the Clerk of Court is respectfully directed

“Defendant was convicted on March 18, 2011 of two counts of Attempted
Manslaughter in the First Degree C.P.L. §110.00/125.20[2]), one count of
Aggravated Assault Upon a Police Officer (P.L. §120.11), one count of
Criminal Possession of a Weapon in the Second Degree (P.L. §265.03[l][b]),
two counts of Attempted Assault in the First Degree (P.L. §l 10.001120.10
[1]), one count of Assault on a Peace Officer, Police Officer, Fireman or
Emergency Medical Services Profession (P.L. §120.08), one count of Theft of
Services (P.L. §165.15[3]), and one count of Resisting Arrest (P.L. §205.30).
On April 7, 2011, defendant was sentenced to consecutive prison terms of
twenty five years for the Aggravated Assault Upon a Police Officer (P.L.
§120.11), and fifteen years each for one of the counts of Attempted Assault
in the First Degree (P.L. §110.00/120.10[1]) and one of the counts of
Attempted Manslaughter in the First Degree (P.L. §110.00/125.20[2]). The
Court also imposed concurrent prison terms of fifteen years for the second
count of Attempted Manslaughter in the First Degree (P.L. §110.00/125.20[2]),
Criminal Possession of a Weapon in the Second Degree (P.L.§265.03[l][b]),
Attempted Assault in the First Degree (P.L. §110.00/120.10[1]), Assault on a
Peace Officer, Police Officer, Fireman or Emergency Medical Services
Professional (P.L. §120.08), and one year each for theft of services (P.L. §
165.15[3]) and resisting arrest (P.L. § 205.30). Additionally, the Court
imposed a five-year term of post-release supervision.” (ECF No. 36-1, State
Court Record at 52-53 (October 11, 2017 Decision and Order, listing
petitioner’s counts of conviction and sentences) (emphasis added); see also
id. at 45-46 (Petitioner’s Sentencing Transcript, dated April 7, 2011).)
2

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to mail a copy of this Memorandum and Order to pro se petitioner
and note service on the docket.

SO ORDERED.
Dated:

March 22, 2019
Brooklyn, New York
____________/s/_________________
Hon. Kiyo A. Matsumoto
United States District Judge

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