Gibson v. State of New York
Filing
5
ORDER granting 4 Motion for Leave to Proceed in forma pauperis. For the reasons set forth in the attached Memorandum and Order, the court directs petitioner to show cause by written affirmation within 60 days from entry of this Order why the peti tion should not be dismissed as time-barred by the AEDPA's one year statute of limitations. In the affirmation, petitioner should clearly state the dates that he filed the Section 440 motions listed in his petition and the dates that said motio ns were denied. If petitioner has a basis to equitably toll the limitations period, he should clearly and concisely state his reasons, including all relevant facts and dates. No response or answer from the respondent shall be required at this time and all further proceedings shall be stayed for 60 days to allow petitioner to comply with this order. If petitioner fails to comply with this order within the time allowed, the instant petition shall be dismissed as time-barred under 28 U.S.C. § 2244(d). The Clerk of Court is respectfully requested to serve a copy of this Memorandum and Order on petitioner and note such service on the docket. Ordered by Judge Kiyo A. Matsumoto on 12/2/2015. (McNulty, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------x
BENNIE GIBSON,
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
15-CV-6335 (KAM)
Petitioner,
-againstSTATE OF NEW YORK, 1
Respondent.
---------------------------------------x
MATSUMOTO, United States District Judge:
Petitioner Bennie Gibson, 2 currently incarcerated at
the Robert N. Davoren Complex on Rikers Island, brings this pro
se petition pursuant to 28 U.S.C. § 2254 for a writ of habeas
corpus.
(ECF No. 1, Petition (“Pet.”).)
Pursuant to Rule 4 of
the Rules Governing Section 2254 Cases, the court has conducted
an initial consideration of this petition and, for the reasons
set forth below, determines that the petition appears to be
time-barred by the one year statute of limitations under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
The court grants petitioner’s request to proceed in forma
pauperis and directs petitioner to show cause within 60 days of
1 The proper respondent in a habeas corpus action is petitioner’s present
custodian.
2 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
the entry of this Memorandum and Order why the petition should
not be dismissed as time-barred.
Discussion
With the passage of the AEDPA 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)(1).
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
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 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); see Lindh v. Murphy, 521 U.S.
320, 327 (1997) (interpreting § 2244 to apply “to the general
run of habeas cases . . . when those cases had been filed after
the date of the Act.”).
2
Petitioner’s application for habeas corpus relief
pursuant to 28 U.S.C. § 2254 appears to be time-barred under the
Act.
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 Dep’t 2013).
The
Appellate Division, Second Department, affirmed the conviction
on May 8, 2013.
See Gibson, 964 N.Y.S.2d at 612.
Although an
appeal dismissed by the Appellate Division may be appealed to
the New York State Court of Appeals, N.Y. Crim. Proc. Law §
470.60, an application for leave to appeal to that court must be
made within thirty days after service of the order of dismissal
on the appellant.
N.Y. Crim. Proc. Law § 460.10(5).
At
paragraph 11(e) of his petition, petitioner states he did not
appeal to the New York State Court of Appeals.
Accordingly, the
judgment of conviction became final on or about Friday, June 7,
2013, when the time for filing an application for leave to
appeal to the Court of Appeals expired.
See Bethea v. Girdich,
293 F.3d 577, 578 (2d Cir. 2002) (affirming that the expiration
of the 30–day limit to file appeal marks the beginning of the
AEDPA limitations period (citing N.Y. Crim. Proc. Law. §
460.10(1)(a))).
3
In order to be timely, the instant petition would have
to have been filed in this court on or before June 7, 2014.
Instead, this petition, dated October 24, 2015, 3 was filed over a
year 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, the petition is
barred by 28 U.S.C. § 2244(d) as untimely.
Statutory Tolling
In calculating a 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 of claim is pending shall not be
counted.”
28 U.S.C. § 2244(d)(2).
However, filing a post-
conviction motion does not start anew the one-year statute of
limitations period.
Rather, the tolling provision under §
2244(d)(2) merely excludes the time a post-conviction motion is
under submission from the calculation of the one-year statute of
limitations.
See Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir.
2000) (per curiam).
Petitioner appears to allege that he filed
at least two motions to vacate his judgment pursuant to N.Y.
Petitioner lists two dates for his petition, September 16, 2015 and October
24, 2015. The petition’s signed affidavit of service states it was placed in
the Rikers Island internal mail system on October 24, 2015. Under the
“prison mailbox” rule, a pro se habeas petition is deemed filed on “the date
of delivery to prison authorities.” Walker v. Jastremski, 430 F.3d 560, 562
& n. 1 (2d Cir. 2005) (citing Dory v. Ryan, 999 F.2d 679, 682 (2d Cir.
1993)); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001).
3
4
Crim. Pro. Law § 440.10.
(Pet. ¶¶ 9, 11.)
However, the dates
petitioner filed said motions and the dates they were denied are
unclear.
The court therefore cannot determine if there is a
basis for statutory tolling.
Equitable Tolling
In order to be eligible for equitable tolling, a
habeas petitioner must establish “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631 (2010); Harper v. Ercole, 648
F.3d 132, 136-38 (2d Cir. 2011).
This Circuit has previously
held that equitable tolling should be applied only in “rare and
exceptional circumstances.”
564 (2d Cir. 2005).
Walker v. Jastremski, 430 F.3d 560,
Equitable tolling “requires the petitioner
to demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and
the lateness of his filing, a demonstration that cannot be made
if the petitioner, acting with reasonable diligence, could have
filed on time notwithstanding the extraordinary circumstances.”
Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
present record, there is no basis for equitable tolling.
On the
5
Conclusion
Accordingly, the court directs petitioner to show
cause by written affirmation, 4 within 60 days from the date 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, 210 (2006) (citing
Acosta v. Artuz, 221 F.3d 117, 124-125 (2d Cir. 2000)) (before
acting on its own initiative to dismiss petition as untimely,
the court must accord the parties fair notice and an opportunity
to present their positions).
In the affirmation, petitioner should clearly state
the dates that he filed the Section 440 motions listed in his
petition and the dates that said motions were denied.
If
petitioner has a basis to equitably toll the limitations period,
he should clearly and concisely state his reasons, including all
relevant facts and dates.
No response or answer from the
respondent shall be required at this time and all further
proceedings shall be stayed for 60 days to allow petitioner to
comply with this order.
If petitioner fails to comply with this
order within the time allowed, the instant petition shall be
dismissed as time-barred under 28 U.S.C. § 2244(d).
4
An affirmation form is attached to this order for petitioner’s convenience.
6
The Clerk of Court is respectfully requested to serve
a copy of this Memorandum and Order on petitioner and note such
service on the docket.
SO ORDERED.
Dated: Brooklyn, New York
December 2, 2015
______/s/___________________
KIYO A. MATUSMOTO
United States District Judge
7
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
BENNIE GIBSON,
Petitioner,
PETITIONER’S AFFIRMATION
15-CV-6335 (KAM)
-againstSTATE OF NEW YORK,
Respondent.
----------------------------------x
STATE OF ____________
COUNTY OF __________
}
} SS:
BENNIE GIBSON, appearing pro se, makes the following
affirmation under the penalties of perjury:
I am the petitioner in this action and I respectfully
submit this affirmation in response to the Court’s order dated
__________.
I filed _____________ (number of § 440) motions.
The first
§ 440 motion was filed on the following date ______________, and
decided on the following date ______________.
The second § 440
motion was filed on the following date ______________, and
decided on the following date ______________.
The instant petition should not be time-barred by the oneyear statute of limitations because:
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________
[YOU MAY ATTACH ADDITIONAL PAGES, IF NECESSARY]
In view of the foregoing, it is respectfully submitted that
the instant petition should be permitted to proceed.
DATED:
______________
____________________________
Signature
_____________________________
Address
_____________________________
_____________________________
City, State & Zip
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?