Gibson v. State of New York
Filing
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ORDER. For the reasons set forth in the attached Memorandum and Order, the petition for a writ of habeas corpus is dismissed as time-barred pursuant to 28 U.S.C. § 2244(d)(1). A certificate of appealability shall not issue as petitioner has no t made a substantial showing of the denial of a constitutional right. The court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully requested to mail to copy of this order to petitioner, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 2/16/2016. (McNulty, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
BENNIE GIBSON,
Petitioner,
NOT FOR PUBLICATION
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 (“RNDC”)
at Rikers Island and proceeding pro se, filed the instant
petition pursuant to 28 U.S.C. § 2254 for a writ of habeas
corpus.
By order dated December 2, 2015, the court granted
petitioner’s request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915, and directed petitioner to show cause why the
petition should not be dismissed as time-barred.
(ECF No. 5,
Order dated 12/2/15.)
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
On January 7, 2016, petitioner filed an affirmation
asserting that the one-year statute of limitations applicable to
his petition should be tolled.
Affirmation (“Aff.”).)
(ECF No. 7, Petitioner’s
Petitioner also argues that he should be
able to pursue his constitutional claims based on a showing of
actual innocence.
(Id.)
On January 19, 2016, petitioner filed
a letter in support of his affirmation.
dated 1/12/16.)
(ECF No. 8, Letter
Upon review of petitioner’s affirmation and
letter in support, it is clear that the instant § 2254 petition
is not timely, and the arguments presented in petitioner’s
affirmation are insufficient to warrant statutory tolling,
equitable tolling, or a finding that plaintiff can make a
credible showing of actual innocence.
Therefore, for the
reasons discussed below, the petition for a writ of habeas
corpus is dismissed as time-barred.
Discussion
With the passage of The Antiterrorism and Effective
Death Penalty Act (“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:
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(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.”).
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.
Although an
appeal dismissed by the Appellate Division may be appealed to
the New York State Court of Appeals, N.Y. Crim. Proc. Law §
3
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))).
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, 2 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.
2 Petitioner lists two dates for his petition, September 16, 2015 and October
24, 2015. The petitioner’s signed affidavit of service states the petition
was placed in the Rikers Island internal mail system on October 24, 2015.
Pursuant to 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).
4
A. 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 the one-year statute of
limitations period to run anew.
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.
Smith v. McGinnis, 208 F.3d 13, 16 (2d
Cir. 2000) (per curiam).
Petitioner’s affirmation asserts that he filed a
motion pursuant to N.Y. Crim. Proc. Law § 440.10 in August or
September 2014, and that the motion was denied in July 2015.
(Aff. at 1.)
As previously noted, petitioner’s 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.
In order to be timely, the instant
petition would have to have been filed in this court on or
before June 7, 2014, but petitioner alleges that he filed his §
440 motion in August or September 2014.
(Id.)
Even allowing
for the earlier filing date of August 2014, petitioner’s § 440
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motion was filed after the one-year limitations period had
already expired.
Therefore, the § 440 motion cannot be counted for
statutory tolling purposes under 2244(d)(2).
See Doe v.
Menefee, 391 F.3d 147, 154 (2d Cir. 2004) (a state collateral
proceeding commenced after the statute of limitations has run
does not reset the limitations period); Smith, 208 F.3d at 16–17
& n.2; Matos v. Superintendent, Washington Correctional
Facility, No. 13 CV 2326, 2014 WL 5587518, at *2 (E.D.N.Y. Nov.
3, 2014).
B. Equitable Tolling
Even if petitioner's action would otherwise be timebarred by the AEDPA, his claim can be heard on the merits if he
is entitled to 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.”
Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011)
(quoting Holland v. Florida, 560 U.S. 631 (2010)); Jenkins v.
Greene, 630 F.3d 298, 302 (2d Cir. 2010).
This Circuit has held
that equitable tolling should be applied only in “rare and
exceptional circumstances.” Walker v. Jastremski, 430 F.3d 560,
564 (2d Cir. 2005) (quoting Smith, 208 F.3d at 17).
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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); see also
Jenkins, 630 F.3d at 303.
Petitioner provides no facts to
warrant equitable tolling, and the court finds none.
C. Actual Innocence
The court must further consider petitioner's assertion
of actual innocence to determine if his claims can be heard on
the merits despite their time-barred status.
See McQuiggin v.
Perkins, -- U.S. --, 133 S.Ct. 1924, 1931 (2013) (“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.”); Schlup v. Delo, 513
U.S. 298 (1995); Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir.
2012); Trisvan v. Ercole, No. 07 CV 4673, 2015 WL 419685, at *1
(E.D.N.Y. Jan. 30, 2015).
In support of his argument of actual innocence,
petitioner asserts that at trial, respondent failed to produce a
map of the area where wire was allegedly cut.
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(Aff. at 2.)
Instead, he alleges that respondent showed a map of an area that
was one mile away from the location of the crime scene.
(Id.)
Petitioner additionally asserts that the Queens County trial
judge was corrupt and that the “NYPD was covering up for a group
of individuals who were working with the NYPD committing crimes
by setting up [petitioner].”
(Id. at 3.)
Petitioner’s
affirmation 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.
513 U.S. at 327.
See Schlup,
Here, beyond his unsupported assertions,
petitioner fails to make a credible showing of actual innocence,
and petitioner is not entitled to tolling of the statute of
limitations to excuse the lateness of his petition.
Conclusion
Accordingly, the petition for a writ of habeas corpus
is dismissed as time-barred pursuant to 28 U.S.C. § 2244(d)(1).
A certificate of appealability shall not issue as petitioner has
not made a substantial showing of the denial of a constitutional
right.
See 28 U.S.C. § 2253 (c)(2); Lucidore v. New York State
Div. of Parole, 209 F.3d 107 (2d Cir. 2000); Lozada v. United
States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds
by United States v. Perez, 129 F.3d 255, 259–60 (2d Cir. 1997).
The court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any
appeal from this order would not be taken in good faith.
8
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The
Clerk of Court is respectfully requested to close this case.
SO ORDERED.
Dated:
February 16, 2016
Brooklyn, New York
_____/s/_____________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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