Vazquez v. Richmond County Supreme Court

Filing 12

MEMORANDUM AND ORDER: The Court dismisses as time-barred the § 2254 petition. Because petitioner has not made a substantial showing of the denial of constitutional right, the Court declines to issue a certificate of appealability. See 28 U.S.C . § 2253. Pursuant to 28 U.S.C. § 1915(a), the Court certifies that petitioner would not take any appeal in good faith and that this Court therefore denies in forma pauperis for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Court respectfully directs the Clerk of Court to enter judgment accordingly and to close the case. Ordered by Judge Carol Bagley Amon on 1/24/2018. (fwd for judgment) (Fernandez, Erica)

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
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JOSE VAZQUEZ,

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Petitioner,

2 4 2018

BROOKLYN OFRCE

-against-

NOT FOR PUBLICATION
MEMORANDUM & ORDER

SUPERINTENDENT, MARCY

I6-CV-2499(CBA)

CORRECTIONAL FACILITY,

Respondent.
-X

AMON,United States District Judge:

Petitioner Jose Vazquez, appearing pro se, seeks a writ of habeas corpus pursuant to 28

U.S.C. § 2254. By Memorandum and Order dated December 29, 2016 (the "December Order"),

the Court granted petitioner's request to proceed in forma pauperis. The Court also directed
petitioner to show cause why it should not dismiss the petition as time-barred in light of the oneyear statute of limitations set by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA").

On February 7, 2017, petitioner filed an Affirmation in response to the Court's December
Order. (D.E.#9("Affirmation").) Petitioner's Affirmation is not a model of clarity, but he appear

to argue for equitable tolling because he was transferred to several facilities during the first 16
years of his incarceration, because he was subjected to excessive force and was deprived of medical
attention at an unspecified point during his incarceration, and because he has "accumulated 15

parole violations." (Affirmation at 1-5, 8, 12.) It is unclear whether petitioner challenges his
return to custody based on his numerous parole violations or his conviction and sentence.
Nonetheless, because petitioner's Affirmation does not provide a basis for tolling AEDPA's statute
of limitations, the Court dismisses the petition as time-barred.

BACKGROUND

Upon petitioner's guilty plea, he was sentenced on January 3, 1974, to 15 years to life

imprisonment in the Supreme Court ofthe State of New York,Richmond County, for murder and

attempted robbery. (D.E. #1 ("Petition") at 2, 34.) On May 13, 1975, the Appellate Division
affirmed the conviction. People v. Vazquez. 48 A.D. 2d 770, 770(2d Dep't 1975). Petitioner did
not seek further review by the State of New York Court of Appeals or the United States Supreme
Court. (Petition at 2, 34.)
DISCUSSION

AEDPA sets a one-year statute oflimitations 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 ofthe Constitution or laws of
the United States is removed,ifthe 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 ofthe claim or claims
presented could have been discovered through the exercise of
due diligence.

28 U.S.C. § 2244(d)(l)(AHD). Under § 2244(d)(1)(A), the instant petition is untimely.^ A
conviction becomes final after the 90-day period for seeking a writ of certiorari has expired.
Williams v. Artuz. 237 F.3d 147, 150-51 (2d Cir. 2001). Prisoners like Vazquez, "whose

convictions became final prior to the AEDPA's effective date of April 24,1996, ha[d] a one-year

grace period in which to file their habeas corpus petitions, or until April 24, 1997." Smith v.
McGinnis. 208 F.3d 13, 15 (2d Cir. 2000)(per curiam). Petitioner did not provide the date he

delivered the instant petition to prison authorities for mailing; however, the Court received the

petition on May 20, 2016, and the envelope indicates that it was mailed from Marcy Correctional
Facility on May 17,2016, more than 19 years after the grace period expired in this case. Therefore,
the limitations period set forth in 28 U.S.C. § 2244(d) has run imless tolling applies. Petitioner
fails to show that he is entitled to statutory or equitable tolling.
A. Statutory Tolling

AEDPA "has a tolling provision that applies to both the statute oflimitations and the one-

year grace period." Smith. 208 F.3d at 15. "Section 2244(d)(2) states: 'The time during which a
properly filed application for State post-conviction or other collateral review with respect to the
pertinentjudgment or claim is pending shall not be counted toward any period of limitation under
this subsection.'" Id (quoting 28 U.S.C. § 2244(d)(2)).

In November 2007, petitioner filed a motion to vacate his conviction in the state trial court,
which was denied on February 15, 2008. (See Petition at 34.) On October 23, 2014, petitioner
also filed a motion under N.Y. Crim. Proc. Law § 440.20 ("440 motion"), which was denied by

the trial court on February 25, 2015. The Appellate Division denied petitioner leave to appeal on

'
Petitioner does not state any facts to demonstrate that §§ 2244(d)(1)(B)to 2244(d)(1)(D) are applicable.
3

August 20,2015. (Id. at 34-36.) On December 22,2015,the New York Court of Appeals denied
leave to appeal the denial ofthe 440 motion. (IdL at 78.)
In the December Order, the Court found that it could not count, for purpose of statutory

tolling, the time during which petitioner's post-conviction motions were considered, because the
motions had not been filed before the grace period expired on April 24, 1997, and because they
did not restart the statute of limitations. See, e.g.. Evans v. Senkowski. 228 F.Supp.2d 254, 260

(E.D.N.Y. 2002). Petitioner's Affirmation does not set forth any facts showing that petitioner is
entitled to statutory tolling.
B. Equitable Tolling

In addition to statutory tolling, the limitations period under the AEDPA in some cases may

be equitably tolled. Petition is'"entitled to equitable tolling' only if he shows'(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, 649 (2010) (quoting Pace v.
DiGuglielmo. 544 U.S. 408,418(2005)). The Second Circuit has established that there is a "high
bar to deem circumstances sufficiently 'extraordinary' to warrant equitable tolling." See Dillon v.
Conwav. 642 F.3d 358, 363 (2d Cir. 2011). 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). The
petitioner has the burden to show such circumstances. Muller v. Greiner. 139 F. App'x 344, 345
(2d Cir. 2005)(citing Hizbullahankhamon v. Walker. 255 F.3d 65,75(2d Cir. 2001)).

Petitioner fails to setforth any faets that would entitle him to equitable tolling. Petitioner's

allegation that he was frequently transferred to various facilities does not rise to an extraordinary
circumstance, because prisoners are often transferred between facilities.

Worsham v West.

No. 05-CV-530(DAB), 2006 WL 2462626, at *2(S.D.N.Y. Aug. 23, 2006)("Courts usually do
not consider a transfer between facilities that may limit a prisoner's access to legal materials to be

an extraordinary circumstance."); Montalvo v. Strack. No. 99-CV-5087(JGK),2000 WL 718439,

at *2 (S.D.N.Y. June 5, 2000) (finding prison transfers did not constitute "extraordinary
circumstances"). Petitioner's conclusory allegation that he was subjected to excessive force and
denied medical treatment—without details such as dates or a description of how such events

impeded his ability timely to file the petition—does not provide a basis for equitable tolling.
CONCLUSION

The Court dismisses as time-barred the § 2254 petition. Because petitioner has not made

a substantial showing of the denial of constitutional right, the Court declines to issue a certificate

of appealability.

28 U.S.C. § 2253. Pursuant to 28 U.S.C. § 1915(a), the Court certifies that

petitioner would not take any appeal in good faith and that this Court therefore denies in forma
pauperis for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962). The Court respectfully directs the Clerk of Court to enter judgment accordingly and to
close the case.
SO ORDERED.

Dated: January^'', 2018
Brooklyn, New York

s/Carol Bagley Amon
!)afol Bagley Amo
United States Dis