Gibson v. State of New York
Filing
19
ORDER denying 12 Motion to Vacate ; denying 12 Motion to Amend/Correct/Supplement; denying 17 Motion for Extension of Time to File; denying 18 Motion to Amend/Correct/Supplement; denying 18 Motion for Reconsideration. For the reasons set forth in the attached Memorandum and Order, the court denies petitioner's motion for reconsideration of the dismissal of his petition for a writ of habeas corpus. This case shall remain closed. Pursuant to Fed. R. App. P. 22(b) and 28 U.S. C. § 2253(c)(2), a certificate of appealability shall not issue because petitioner has not made a substantial showing of a denial of constitutional right. Petitioner's motion for an extension of time to file a notice of appeal 17 is deni ed as moot. Petitioner has a right to seek a certificate of appealability from the United States Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253(c). The Clerk of Court is respectfully requested to mail a copy of this Memorandum and Order to petitioner and note service on the docket by 5/10/2016. Ordered by Judge Kiyo A. Matsumoto on 5/9/2016. (McNulty, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
BENNIE GIBSON,
NOT FOR PUBLICATION
Petitioner,
MEMORANDUM & ORDER
-against-
15-CV-6335 (KAM)
STATE OF NEW YORK,
Respondent.
-------------------------------------X
MATSUMOTO, United States District Court Judge
On October 28, 2015, petitioner Bennie Gibson, 1
currently incarcerated at the Robert N. Davoren Complex at
Rikers Island and proceeding pro se, filed the instant petition
pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus.
No. 1, Petition (“Pet.”).)
(ECF
By order dated February 16, 2016,
the court denied the petition as time-barred by the one-year
statute of limitations as set forth in the Antiterrorism and
Effective Death Penalty Act (“AEDPA”).
and Order (“2/16/16 Order”).)
(ECF No. 9, Memorandum
On March 2, 2016, petitioner
filed a motion for reconsideration.
(ECF No. 12, Motion for
The court notes that although petitioner is barred from filing any
future complaint unless he demonstrates imminent danger of serious
physical injury, see Gibson v. Weiss, 01-CV-8382 (SJ), that order is
not applicable to the instant § 2254 petition.
1
Reconsideration.)
For the reasons that follow, the motion for
reconsideration is denied.
I.
Background
On March 10, 2010, petitioner was convicted after a
jury trial in the Supreme Court of the State of New York, Queens
County, of criminal mischief in the third degree, petit larceny,
and possession of burglar’s tools.
(See Pet. ¶¶ 1-3); People v.
Gibson, 964 N.Y.S.2d 611 (App. Div. 2d Dept. 2013).
The
Appellate Division, Second Department, affirmed the conviction
on May 8, 2013.
See Gibson, 964 N.Y.S.2d at 612.
The judgment
of conviction became final on or about June 7, 2013, when the
time for filing an application for leave to appeal to the Court
of Appeals expired.
In order to be timely, the instant petition
would have to have been filed in this court on or before June 7,
2014.
Instead, the petition was filed on October 28, 2015.
In finding petitioner’s claim time-barred, the court
recognized that “the time during which a properly filed
application for State post-conviction or other collateral review
with respect to the pertinent judgment of claim is pending shall
not be counted.”
2244(d)(2)).)
(2/16/16 Order at 5 (citing 28 U.S.C. §
In an affirmation filed in support of his
petition, petitioner alleged that he filed a post-conviction
motion pursuant to N.Y. Crim. Proc. Law § 440.10 (the “§ 440.10
motion”) in “August or September 2014,” and that the § 440.10
2
motion was denied in July 2015.
Affirmation dated 1/7/16.)
(ECF No. 7, Petitioner’s
Based on this information, the court
concluded that statutory tolling did not operate to toll the
AEDPA’s statute of limitations because petitioner’s § 440.10
motion was filed in August or September 2014, at least two
months after the one-year limitations period expired on June 7,
2014.
II.
(See 2/16/16 Order at 5-6.)
Legal Standard
In the Eastern District of New York, Local Rule 6.3
requires a party moving for reconsideration to “set[] forth
concisely the matters or controlling decisions which counsel
believes the Court has overlooked.”
A motion for
reconsideration “must demonstrate controlling law or factual
matters put before the court on the underlying motion that the
movant believes the court overlooked and that might reasonably
be expected to alter the court's decision.”
Mallet v. Miller,
438 F. Supp. 2d 276, 277 (S.D.N.Y. 2006) (citing Schrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); In re Houbigant,
Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996) (citing cases).
Thus, “a Local Rule [6.3] motion may not advance new facts,
issues, or arguments not previously presented to the court.”
Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 171 F.R.D. 79,
82 (S.D.N.Y. 1997).
Local Rule 6.3 “is to be narrowly construed
3
and strictly applied so as to avoid repetitive arguments on
issues that have been considered fully by the court.”
Id.
III. Discussion
Petitioner’s motion for reconsideration cites no
controlling law or factual matters the court overlooked that
might reasonably be expected to alter the outcome of the 2/16/16
Order.
Instead, petitioner asserts that his habeas petition
provided “erroneous information” regarding the dates of his §
440.10 motion, and that the one-year limitations period
applicable to his petition should be statutorily tolled based on
the corrected date.
Petitioner now asserts that he filed his § 440.10
motion for post-conviction relief in February or March 2014.
(Motion for Reconsideration at 3.)
However, publicly available
records from the Supreme Court, Queens County establish that
plaintiff filed his § 440.10 motion on June 20, 2014.
(See
Notice of § 440.10 Motion dated 6/20/2014, People v. Bennie
Gibson, Indictment No. 285-09, Docket No. 2008QN044065, N.Y.
Sup. Ct., Queens Cnty.)
The Supreme Court, Queens County denied
the § 440.10 motion on October 2, 2014.
Reconsideration at 4.)
(Motion for
Petitioner’s appeal of the Supreme
Court’s denial of his § 440.10 motion was dismissed by the
Appellate Division, Second Department on November 18, 2014.
(Id.; see also ECF No. 12-1, Decision & Order on Motion
4
dismissing appeal dated 11/18/2014, People v. Bennie Gibson, No.
2014-10205, App. Div. 2d Dept.)
On July 23, 2015, the Appellate
Division, Second Department denied petitioner’s application for
a certificate for leave to appeal the New York Supreme Court’s
decision.
(See Motion for Reconsideration at 4; Decision &
Order on Application dated 7/23/2015, People v. Gibson, No.
2014-11276, App. Div. 2d Dept.)
This court’s February 16, 2016 Order finding that
petitioner’s § 440.10 motion did not statutorily toll the
limitations period was based on petitioner’s representation that
he filed his § 440.10 motion in “August or September 2014”
(i.e., after the AEDPA’s limitations period expired).
Although
petitioner’s motion for reconsideration incorrectly argues he
filed the § 440.10 motion in March or April 2014, the court will
re-consider whether the limitations period was statutorily
tolled based on the correct filing date of the § 440.10 motion,
June 20, 2014.
The AEDPA’s statute of limitations began to run on or
about June 7, 2013, when the time for filing an application for
leave to appeal expired.
later, on June 7, 2014.
June 20, 2014.
The grace period expired one year
Petitioner filed his § 440.10 motion on
The § 440.10 motion did not toll the statute of
limitations because petitioner filed the motion after the June
7, 2014 expiration of the grace period.
5
Thus, the statute of
limitations had already expired (and continued to run) when the
Appellate Division, Second Circuit denied the § 440.10 motion on
July 23, 2015.
Petitioner did not file the instant petition
until October 2015, and provides no reason for his tardy
filings.
Accordingly, Section 2244(d)(2) did not operate to
toll the one-year statute of limitations for petitioner’s habeas
claim.
Petitioner also seeks reconsideration of the court’s
finding that petitioner failed to make a credible showing of
actual innocence.
The February 16, 2016 Order found that
petitioner “presents no new or credible evidence that makes it
more likely than not that no reasonable juror presented with
that evidence would have convicted the petitioner.”
Order at 8.)
(2/16/16
Because Mr. Gibson fails to identify any error of
law, facts that were overlooked by the court, or other
extraordinary circumstances, his motion for reconsideration on
actual innocence grounds is denied.
Conclusion
For the foregoing reasons, the court denies
petitioner’s motion for reconsideration of the dismissal of his
petition for a writ of habeas corpus.
closed.
This case shall remain
Pursuant to Fed. R. App. P. 22(b) and 28 U.S.C. §
2253(c)(2), a certificate of appealability shall not issue
because petitioner has not made a “substantial showing” of a
6
denial of constitutional right.
U.S. 322, 336 (2003).
See Miller-El v. Cockrell, 537
Petitioner’s motion for an extension of
time to file a notice of appeal (ECF No. 17) is denied as moot.
Petitioner has a right to seek a certificate of appealability
from the United States Court of Appeals for the Second Circuit.
See 28 U.S.C. § 2253(c).
SO ORDERED.
Dated:
May 9, 2016
Brooklyn, New York
_____/s/_____________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
7
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?