Brewer v. Lee

Filing 12

MEMORANDUM AND ORDER: For the reasons set forth in the attached Order, Brewer's instant habeas petition is dismissed as time-barred. Since petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of ap pealability shall not issue. See 28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 11213 (2d Cir. 2000). The court certifies pursuant to 28 U.S.C. ' 1915(a) that any appeal from a judgme nt denying the instant petition would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of Court is directed to enter judgment and close this case. The Clerk of Court is further directed to send a copy of this Memorandum and Order to petitioner and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 3/26/2019. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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STANLEY BREWER,
Petitioner,

MEMORANDUM AND ORDER
16-CV-4051 (RRM)

- against SUPERINTENDENT WILLIAM LEE,
Respondent.
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ROSLYNN R. MAUSKOPF, United States District Judge.

Pro se petitioner Stanley Brewer seeks a writ of habeas corpus under 28 U.S.C. § 2254.
(Pet. (Doc. No. 1).) Earlier, this Court ordered Brewer to show cause why his petition should not
be dismissed for his no longer being in custody pursuant to the conviction he seeks to challenge,
or otherwise dismissed as time-barred. (Mem. & Order (Doc. No. 9).) Brewer responded that he
is still in custody pursuant to the conviction he seeks to challenge and that the statute of
limitations should be tolled. (Pet’r Reply (Doc. No. 10).) For the reasons set forth below, the
petition is dismissed as time-barred.
BACKGROUND
These facts are taken from Brewer’s petition and reply and are assumed to be true for the
purposes of this Order. On October 16, 2003, Brewer pleaded guilty to three counts of burglary
in the second degree in Kings County Supreme Court. (Pet. at 1.) He was sentenced on October
30, 2003, to concurrent terms of five years of imprisonment, followed by five years of postrelease supervision. (Pet. at 43–44, ¶¶ 2–3). He did not appeal his conviction, but in 2006 and
2013, he filed post-conviction motions. (Pet’r Reply ¶¶ 6–14.) Brewer absconded from work
release on January 8, 2006, while serving his sentence for his 2003 conviction and was arrested

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11 days later and charged with multiple offenses, including 23 counts of burglary. (Id. ¶¶ 2–3.)
Following conviction, he was sentenced on August 2, 2007, as a second violent felony offender
to a determinate term of 15 years. (Id. ¶¶ 3–5.) Brewer argues that under New York law, the
remaining 716 days of his sentence for his 2003 conviction is consecutive to his 2007 sentence. 1
(Id. ¶ 5.)
Brewer’s conviction became final on December 1, 2003, 30 days after his sentencing.
(Mem. & Order at 5.) Therefore, he had until December 1, 2004, to file a habeas petition or to
trigger tolling by filing a state post-conviction motion. (Id.)
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a
one-year period of limitations for the filing of an application for a writ of habeas corpus by a
person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The relevant
subsection here provides that the limitations period shall run from “the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 2
This one-year period is subject to both statutory and equitable tolling. Under 28 U.S.C.
§ 2244(d)(2), “The 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 shall not be
counted toward any period of limitation under this subsection.” As the Second Circuit explains,

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Since Brewer’s 2003 sentence was extant at the time this petition was filed and runs consecutive to his current
2007 sentence, and because Brewer may not be released from custody until it is served, the Court assumes, without
deciding, that Brewer is “in custody” pursuant to his 2003 conviction for the purposes of 28 U.S.C. § 2254(a). See
Garlotte v. Fordice, 515 U.S. 39, 41 (1995) (holding that a petitioner in state custody may challenge the first of
multiple, consecutive sentences imposed – even where the first sentence has already been served – because the
multiplicity of sentences represents “a continuous stream” of custody under 28 U.S.C. § 2254(a)).

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“proper calculation of Section 2244(d)(2)’s tolling provision excludes time during which
properly filed state relief applications are pending but does not reset the date from which the oneyear statute of limitations begins to run.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). In
other words, a pending state relief application can pause the clock, but that application must
itself be filed within the one-year limitations period. For equitable tolling to apply, the petitioner
“must show that extraordinary circumstances prevented him from filing his petition on time,”
and he “must have acted with reasonable diligence throughout the period he seeks to toll.”
Smith, 208 F.3d at 17.
I. Timeliness Under 28 U.S.C. § 2244(d)(1)(A)
Under 28 U.S.C. § 2244(d)(1)(A), the one-year limitations period for a § 2254 petition
runs from “the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
In this case, Brewer’s conviction became final on December 1, 2003, when the 30-day
period to file a direct appeal of his conviction expired. N.Y. Crim. Proc. Law § 460.10(1);
Atkins v. Gonyea, No. 12-CV-9186 (JGK), 2014 WL 199513, at *1 (S.D.N.Y. Jan. 17, 2014);
Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (per curiam). Thus, Brewer had until
December 1, 2004, to file his habeas corpus petition. This petition, however, was submitted to
prison authorities for mailing on July 11, 2016, over 11 years after the limitations period had
expired. This petition is therefore time-barred under 28 U.S.C. § 2244(d)(1)(A).
Section 2244(d)(2), however, provides that the one-year statute of limitations, including
is tolled while “a properly filed application for State post-conviction or other collateral review

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Based on the facts alleged in Brewer’s petition and reply, subsections (B)–(D) do not apply.

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with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); Bennett v.
Artuz, 199 F.3d 116, 118–19 (2d Cir. 1999). “[A] state-court petition is ‘pending’ from the time
it is first filed until finally disposed of and further appellate review is unavailable under the
particular state’s procedures.” Bennett, 199 F.3d at 120. “The post-conviction proceeding,
however, does not start the one-year period to run anew.” Thomas v. Martuscello, No. 13-CV893, 2013 WL 782902 (DLI) (LB), at *2 (E.D.N.Y. Feb. 28, 2013). Rather, “[t]he statute merely
excludes the time a post-conviction motion is under submission from the calculation of the oneyear period of limitation.” Id. (citing Smith v. McGinnis, 208 F.3d 13, 16–17 (2d Cir. 2000)).
That is, a post-conviction motion does not restart the limitations period.
Here, petitioner filed two post-conviction “440 motions,” but neither was filed within the
one-year limitations period. Brewer’s first 440 motion was filed in Novermber 2006 and decided
on August 3, 2007. (Reply at 3-4). Brewer’s second 440 motion was filed in September 2013
and decided on January 23, 2015. (Reply at 4). Brewer sought leave to appeal the denial of the
latter 440 motion on March 31, 2015, and his application was denied on July 8, 2015. (Reply at
5). Since neither post-conviction motion was filed within that period, the period had fully
elapsed, and subsequent petitions do not toll the lapsed limitations period. Thus, Brewer’s 440
motions do not salvage his claim in this Court.
A.

Equitable Tolling

The one-year statute of limitations under AEDPA may also be tolled for equitable
reasons. Holland v. Florida, 130 S. Ct. 2549, 2561–62 (2010). “[A] petitioner is entitled to
equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstances stood in his way and prevented timely filing.” Id. at 2562
(internal quotation marks omitted). “The term ‘extraordinary’ does not refer to the uniqueness of
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the petitioner’s circumstances, ‘but rather how severe an obstacle it is for the prisoner
endeavoring to comply with AEDPA’s limitations period.’” Bolarinwa v. Williams, 593 F.3d
226, 231–32 (2d Cir. 2010) (quoting Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)).
Petitioner argues that he is entitled to equitable tolling because he has exercised “due
diligence” since he was convicted of his 2006 crimes. (Reply at 8–13 (listing his appeal, postconviction motions, and 2013 Freedom of Information Law request).) He posits that his
challenges to both convictions are “intertwined” and that his efforts to challenge his 2007
conviction should be considered “due diligence” in pursuing his rights as to his 2003 conviction.
The Court is not persuaded. Regardless of whether Brewer sufficiently pursued his rights
with respect to his 2003 conviction, the record is clear that he made no effort to challenge that
conviction between 2003 and November 2006, nor does Brewer allege any circumstances that
prevented his timely filing. Thus, the Court finds no equitable basis to toll the one-year
limitations period prescribed by AEDPA.
B.

Actual Innocence

Finally, Brewer implies that he should be excused from AEDPA’s one-year statute of
limitations because he is actually innocent of the crime for which he was convicted. (Reply at 6–
8). As the Supreme Court confirmed in McQuiggin v. Perkins, 569 U.S. 383 (2013), actual
innocence, if established, warrants an “equitable exception” to the statutory time bar. Id. at 392
(emphasis in original). To pass through the “actual innocence” gateway, a petitioner must make
the same showing of actual innocence required to overcome a procedural bar to habeas review
under the miscarriage of justice prong. Id. at 386. The standard is “‘demanding’ and seldom
met.” Id. at 386 (citing House v. Bell, 547 U.S. 518, 538 (2006)). A claim of actual innocence
“must be both ‘credible’ and ‘compelling.’” Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012)
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(quoting House, 547 U.S. at 521, 538). “For the claim to be ‘credible,’ it must be supported by
‘new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.’” Id. (quoting Schlup v.
Delo, 513 U.S. 298, 324 (1995)). “For the claim to be ‘compelling,’ the petitioner must
demonstrate that ‘more likely than not, in light of the new evidence, no reasonable juror would
find him guilty beyond a reasonable doubt – or to remove the double negative, that more likely
than not any reasonable juror would have reasonable doubt.’” Id. (quoting House, 547 U.S. at
538); see also McQuiggin, 131 S.Ct. at 1931.
In this case, Brewer suggests that he is actually innocent because the State trial court
judge who rendered the 2015 decision denying his 2013 440 motion “plainly misapprehended
and ignored the . . . document [that Brewer submitted from] the Department of Transportation”
which indicated that there has never been a “traffic light or stop sign” at an intersection in
Brooklyn, showing that Brewer was improperly stopped for failing to stop at that intersection.
(Pet. at 6). He argues in his November 29, 2017 Reply to the order to show cause that “petitioner
can invoke the actual innocence gateway . . . because no reasonable juror would have found
petitioner guilty of Running a Red Light or Stop Sign that does not exist, beyond a reasonable
doubt.” It is unclear how this information could render him actually innocent of the multiple
burglaries of which he was convicted in 2003; Brewer seems to be arguing that he is actually
innocent of failing to stop at the intersection, and therefore should not have been stopped or
arrested, not that he is actually innocent of the crimes of which he was convicted. It is the latter
that is needed in order to invoke the actual innocence gateway. Brewer provides no facts to
support his actual innocence claim beyond concluding that the state court’s decision rejecting his
false arrest argument was incorrect. Even if the Court were to stretch the information about the
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intersection enough to consider it “critical physical evidence,” it was not the type of evidence
that would be “presented at trial,” and it is hardly “compelling” – i.e., more likely than not to
raise reasonable doubt in a reasonable juror. Moreover, this challenge to the basis for the stop
and the police officer’s alleged misconduct is not “new reliable evidence.” Petitioner and his trial
lawyer discussed this issue before he pleaded guilty. Thus, the Court finds no credible and
compelling basis for a claim of actual innocence.
CONCLUSION
For the reasons set forth above, Brewer’s instant habeas petition is dismissed as timebarred. Since petitioner has not made a substantial showing of the denial of a constitutional
right, a certificate of appealability shall not issue. See 28 U.S.C. ' 2253(c)(2); see also Lucidore
v. New York State Div. of Parole, 209 F.3d 107, 112–13 (2d Cir. 2000). The court certifies
pursuant to 28 U.S.C. ' 1915(a) that any appeal from a judgment denying the instant petition
would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk
of Court is directed to enter judgment and close this case.
The Clerk of Court is further directed to send a copy of this Memorandum and Order to
petitioner and note the mailing on the docket.
SO ORDERED.
Dated: Brooklyn, New York
March 26, 2019

Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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