Peoples v. Colvin

Filing 8

MEMORANDUM AND ORDER: Petitioner is directed to show cause by affirmation, within thirty (30) days from the date of this Order, why the AEDPA statute of limitations should not bar the instant petition. See Day, 547U.S. at 209-1 O; Acosta, 221 F.3d at 125. Should Peoples file an affirmation, he must include any facts and documentary evidence that would support tolling of the statute of limitations. No response shall be required from respondent at this time and all further proceeding s shall be stayed for thi11y (30) days or until Peoples has complied with this Order. If Peoples fails to comply with this Order within the time allowed, the instant petition may be dismissed as time-barred. Ordered by Judge Roslynn R. Mauskopf on 10/25/2017. (Attachments: # 1 Sample Petitioner's Affirmation) (Taronji, Robert)

UN rTED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------)(
LEROY PEOPLES,
Peti ti oner,

MEMORANDUM AND ORDER
l 7-CV- 1272 (RRM)

-againstJOHN COLV IN, Superintendent,
Respondent.

------------------------------------------------------------)(
ROSL YNN R. MAUS KOPF, Uni ted States District Judge.
Peti tioner LeRoy Peoples, who is currently incarcerated at the Five Points Correctional
Faci li ty in Romulus, New York, brin gs this prose petition for a writ of habeas corpus pursuant
to 28 U .S.C. § 2254 ("Section 2254"). Fo r the reasons set forth below, petitioner is directed to
submit an affirmation , within thirty (30) days of the date of this Order, showing cause why the
petition should not be dismissed as time-barred.
BACKGROUND

The petition challenges a May 22, 2000 Queens County conviction for attempted crim inal
possess ion of a controll ed substance in the third degree. (See generally Pet. (Doc. No. I).)
Peoples states that he was sentenced on September 17, 2001 to an indeterminate term of one-andone-half to fo ur-and-one-half years of incarceration. (Id at 1.) 1 He did not fi le a notice of
appeal. (Id. at 2.) On June 24, 20 16, Peoples fi led a motion pursuant to Criminal Procedure Law
§ 440.20 in New York state court in which he sought to vacate the judgment of conviction. (Id.

at 3.) Peoples argued that the trial court erred by failing to determ ine whether he was eligible for
youth ful offender status at the time of his plea, co nviction, or sentence. (Id. at 3.) The motion
was denied on October 12, 20 16. (Id at 39.) The decision explained that " under law ex isting at

1

For ease of reference, the Court refers to the page numbers ge nerated by the Electron ic Case Filing system .

the time, defendant waived his right to seek a court determination of his eligi bility to seek
yo uthful offender status." (Id.)
The instant petition raises the same claim : that the trial court fa iled to determine whether
petitioner was entitled to youthful offender treatment. (Id. at 5.) Peoples also asserts that he still
"owes 2 years 6 months & I 8 days" of hi s sentence on the 2000 conviction, because it is
"'consecutive' to hi s current sentence under Indictment # 20 I 3-2003 I." (Id. at 5, 7.) On that
basis, Peoples argues that hi s petiti on is timely because he fil ed it within one year of the
dec isions in his state post-conviction proceed ings. (Id. at 8, I 3.)
DISCUSSION

The petition appears to be time-barred by the one-year statute of limitations established
by the Antiterrori sm and Effective Death Penalty Act of I 996 ("AEDPA"). The AEDPA
provides, inter alia, that the limitation period shall run from "the date on which the judgment
became fina l by the conclusion of direct review or the expiration of the time fo r seeking such
review." 28 U.S.C. § 2244(d)( l )(A). However, the AEDPA statute of limitations may be
equitably toll ed. Smith v. McGinnis, 208 F.3d I 3, I 7 (2d Cir.) (per curiam), cert. denied, 53 I
U. S. 840 (2000). " Equitable tolling, howeve r, is only appropriate in ' rare and exceptional
circumstances. "' Smaldone v. Senkowski, 273 F.3d I 33, I 38 (2d Cir. 200 I), cert. denied, 535
U.S. I OJ 7 (2002) (quoting Smith, 208 F.3d at I 7). A petitioner "must demonstrate that he acted
with ·reasonable diligence' during the period he wishes to have tolled, but that despite his
efforts, extraordinary circum stances ' beyond hi s control ' prevented successful filing during that
time.'· Id.; see also Baldayaque v. United States, 338 F.3d 145, I 52-53 (2d Cir. 2003); Valverde
v. S1inson, 224 F.3d 129, 133 (2d Cir. 2000).

2

A district court can " raise a petitioner' s apparent fa ilure to compl y with the AEDPA
statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). See
also Day v. McDonough, 547 U.S. 198, 209 (2 006) ("[D]istrict courts are permi tted, but not

obliged, to consider, sua sponte , the timeliness of a state prisoner's habeas petition"). However,
.. unl ess it is unmi stakably clear from the facts all eged in the petition, considering all of the
special circumstances enumerated in Section 2244(d)( I), equitable tolling, and any other factors
relevant to the timeliness of the petition, that the petition is untimely, the court may not dismi ss a
Section 2254 petition for untimeliness without providing petitioner prior notice and opportun ity
to be heard:· Acosta, 22 1 F.3d at 125 (citing Snider

v.

Melindez, 199 F.3d I 08, 113 (2d Cir.

1999); Lugo v. Keane, 15 F.3d 29, 30 (2d Cir. 1994)).
In thi s case, the facts alleged in the petiti on suggest that petitioner's application for
habeas corpus relief pursuant to 28 U.S.C. § 2254 is time-barred. Petitioner was sentenced on
September 17, 200 1. (Pet. at 1.) As he did not appeal, the convicti on became final 30 days later,
on October 17, 200 I, when the time for filing a noti ce of appeal to the Appellate Division
expired. SeeN .Y. Crim. Proc. Law§ 460.IO(l)(a). Thus, Peoples had unti l October 17, 2002 to
fil e hi s petition. See 28 U. S.C. § 2244(d)( I )(A). However, Peoples filed the instant petition on
March 3, 20 17. (See generally Pet. )
In turn , it does not appear that Peoples can benefit from equitab le tolling, as he did not
fil e hi s state court applications for post-conviction relief until long after the expiration of the
limitations period. (See Pet. at 28.) A motion fo r post-conviction relief fi led after the limitations
period has expired will not re-set the statute of limitations for bringing a peti tion fo r a writ of
habeas corpus. Smith , 208 F.3d at 17.

3

At this stage, Peoples has presented no grounds for equitable to lling. Accordingly,
petitioner is directed to show cause by affirmation, within thirty (30) days fro m the date of this
Order, why the AEDPA statute of limitations should not bar the instant petition. 2 See Day, 547
U.S. at 209-1O; Acosta, 22 1 F.3d at 125 . Should Peoples fil e an affirmation, he must include
any facts and documentary evidence that would support tolling of the statute of limitations.
No response shall be required from respondent at this time and all further proceedings
shall be stayed for thi11y (30) days or until Peoples has compli ed with this Order. If Peoples fai ls
to comp ly with this Order within the time all owed, the instant petition may be dismissed as timebarred.
SO ORDERED.

'Ros {ynn R. :Maus Royf

Dated: Brooklyn, New York
{!)cf K , 20 11

ROSL YNN R. MAUSKOPF
Un ited States District Judge

2

An affirmation form is attached to this Order for Peoples' convenience.

4