McRae v. The Attorney General of the State of New York
MEMORANDUM & ORDER, For the reasons set forth below, petitioner is directed tosubmit an amended petition by May 9, 2018. Petitioner's 2 motionfor leave to file in forma pauperis is granted. No response shall be required from respondent at this time and all further proceedings shall be stayed for thirty (30) days or until the petitioner has complied with this Order and submitted an amended petition. If petitioner fails to comply with this Order by May 9, 2018, the instant petition may be dismissed as time-barred. So Ordered by Judge Kiyo A. Matsumoto on 4/9/2018. (c/m to pro se petitioner) (Lee, Tiffeny)
. .. .. 'i i;
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
THE ATTORNEY GENERAL OF
THE STATE OF NEW YORK,
MATSUMOTO, United States District Judge:
On September 5, 2017, pro se petitioner Troy McRae
filed the instant petition for a writ of habeas corpus pursuant
to Title 28, United States Code Section 2254 (''Section 2254") .
For the reasons set forth below, petitioner is directed to
submit an amended petition by May 9, 2018.
for leave to file in forma pauperis is granted.
Petitioner challenges a May 24, 2006 judgment from
Kings County, in which he was convicted of first-degree robbery
after a jury trial and sentenced to 12 years incarceration and 5
years of post-release supervision.
(Pet. at 1; see People v.
McRae, 879 N.Y.S.2d 493 (N.Y. App. Div. 2009) .)
Court of New York, Appellate Division, Second Department,
affirmed the conviction on May 5, 2009.
McRae, 879 N.Y.S.2d at
The New York Court of Appeals denied leave to appeal on
September 10, 2009.
People v. McRae, 13 N.Y.3d 798 (2009) .
Petitioner did not appeal to the United States Supreme Court.
(Pet. at 2.)
Petitioner states that he filed multiple post-
conviction motions in New York state court, including an
unspecified motion that was denied on August 17, 2017.
He does not provide any other dates for when these state
court petitions for collateral relief were filed or decided.
search of electronic databases reveals an October 12, 2010
decision denying his application for a writ of error coram nobis
on the grounds of ineffective assistance of appellate counsel.
People V. McRae, 908 N.Y.S.2d 596 (2010), leave to appeal
denied, 16 N.Y.Sd 744 (Jan. 28, 2011).
Petitioner filed the instant petition by delivering it
to prison officials on August 26, 2017.
The petition asserts
that petitioner seeks to offer ''new evidence" to support his
(Pet. at 1.)
Petitioner does not describe this new
evidence, however, and instead asserts what appears to be an
ineffective assistance of counsel claim,^ stating that both his
1 "As [pletitioner is proceeding pro se, his submission is held
to less stringent standards than those drafted by lawyers. The
Court, therefore, construes his submissions liberally and
interprets them as raising the strongest arguments they
suggest." Serra v, Terrell, No. lO-CV-03044 DLI, 2013 WL
5522850, at *1 (E.D.N.Y. Sept. 30, 2013) (citing Erickson v.
Pardus, 551 U.S. 89, 94 (2007) and Pabon v. Wright, 459 F.3d
241, 248 (2d Cir. 2006)).
initial trial counsel and her replacement failed to explain to
him the possible consequences of a jury verdict in his case -
specifically, the length of the possible sentence, the loss of
the military benefits to which petitioner claims he is entitled,
(Pet. at 2-3.)
The AEDPA Statute of Limitations
In enacting the Antiterrorism and Effective Death
Penalty Act of 1996 (''AEDPA"), Congress 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
See 28 U.S.C. § 2244(d)(1). The AEDPA provides
that the limitation period shall run from the latest of
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
(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
(C) the date on which the constitutional
right asserted was initially recognized by
the Supreme Court, if the right has been
newly 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
28 U.S.C. § 2244(d)(1).
In addition, AEDPA provides that if a
''properly filed" application for State post-conviction or other
collateral review with respect to the judgment of conviction was
"pending" at any time during that one-year period, the time
during which this application was pending does not count toward
the one-year period.
28 U.S.C. § 2244(d)(2).
The AEDPA statute of limitations may also be
"equitably tolled," that is, paused.
Holland v. Florida, 560
U.S. 631, 649 (2010). "Equitable tolling, however, is only
appropriate in 'rare and exceptional circumstances.'" Smaldone
V. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001), cert, denied,
535 U.S. 1017 (2002) (quoting Smith v. McGinnis, 208 F.3d 13, 17
(2d Cir. 2000)). "[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 circumstance
stood in his way and prevented timely filing."
U.S. at 649 (internal quotation marks and citations omitted);
see also Baldayaque v. United States, 338 F.3d 145, 152-53 (2d
Cir. 2003), Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir.
A district court can "raise a petitioner's apparent
failure to comply with the AEDPA statute of limitation on its
Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000).
See also Day v. McDonough, 547 U.S. 198, 209 (2006) (^MD]istrict
courts are permitted, but not obliged, to consider, sua spontef
the timeliness of a state prisoner's habeas petition").
However, ^'unless it is unmistakably clear [that a petition is
untimely] from the facts alleged in the petition, considering
all of the special circumstances enumerated in Section
2244(d)(1), equitable tolling, and any other factors relevant to
the timeliness of the petition . . . the court may not dismiss a
Section 2254 petition for untimeliness without providing
petitioner prior notice and opportunity to be heard." Acosta,
221 F.3d at 125 (citing Snider v. Melindez, 199 F.3d 108, 113
(2d Cir. 1999) and Lugo v. Keane, 15 F.3d 29, 30 (2d Cir.
A court should offer pro se habeas petitioners an
opportunity to amend a flawed petition.
Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 583
(2d Cir. 2016) (stating that unless amending would be futile, ''a
district court should not dismiss a pro se complaint without
granting leave to amend at least once" because of "the limited
legal knowledge and resources available to pro se plaintiffs,
which may hamper their ability to articulate potentially valid
claims in legally cognizable language[,]" and stating that
"these concerns are heightened in the § 2254 context" (internal
quotation marks and citations omitted)).
From the facts alleged in the petition, it appears
that petitioner's application for habeas corpus relief pursuant
to Section 2254 may be untimely.
The Court of Appeals denied
leave to appeal on September 10, 2009.
As petitioner did not
pursue his appeal to the United States Supreme Court, the
judgment of conviction became final ninety days later on
December 9, 2009, when the time to seek a writ of certiorari
Unless one of the circumstances described in Title 28
United States Code Sections 2244(d)(1)(B)-(D) are applicable to
this case, Petitioner had one year from December 9, 2009 - that
is, until December 9, 2010 - to file his petition.
has not described any basis for the court to apply Sections
2244(d)(1)(B)-(D), or to equitably toll the statute of
Furthermore, although the AEDPA statute of
limitations is tolled for periods during which petitioner's
state motions for collateral relief were pending, see 28 U.S.C.
§ 2244(d)(2), petitioner has not provided sufficient detail
about his state post-conviction motions for the court to
determine the appropriate tolling period.
(See Pet. at 2
(stating that petitioner "filed a number of post-conviction
motions . . . based upon ineffective assistance of counsel,
prosecutorial misconduct, [B]rady, etc., and those  were
Because it is not clear what, if any, "'new evidence"
petitioner wishes to proffer in support of his petition, and
because the court requires more information to determine whether
and for how long to toll the statute of limitations in this
case, the court will offer petitioner an opportunity to submit
an amended petition.
In his amended petition, petitioner should
set forth reasons why the AEDPA statute of limitations should
not bar the instant petition.
Petitioner should submit the
dates he filed his post-conviction motions, when they were
decided, and any additional grounds for statutory tolling
pursuant to 28 U.S.C. § 2244(d)(2).
If he believes that 28
U.S.C. § 2244(d)(1)(B), (C), or (D) apply to this case or should
he have a basis to ask the Court to equitably toll the statute
of limitations, he shall present the facts to the Court in his
amended petition and shall append to his amended petition
documentary evidence, if available, supporting his factual
To the extent petitioner seeks to use new evidence
to support his petition, he must describe that evidence, explain
why it supports his petition, and set forth (1) when he
discovered this new evidence, and (2) the reasons why he was
2 Petitioner may have intended to attach exhibits to his
petition, but no exhibits were filed.
(See Pet. at 2 (citing
''Exhibit A & B").) If petitioner files an amended petition, he
should ensure that any exhibits he wishes the court to consider
are attached to the petition.
only able to discover this new evidence in the year prior to
filing his petition.
See 28 U.S.C. 2254(d)(1)(D)
No response shall be required from respondent at this
time and all further proceedings shall be stayed for thirty (30)
days or until the petitioner has complied with this Order and
submitted an amended petition.
If petitioner fails to comply
with this Order by May 9, 2018, the instant petition may be
dismissed as time-barred.
The Clerk of Court is respectfully
directed to serve a copy of this order on pro se petitioner and
to note service on the docket.
KIYO A. MATSUMOTO
United States District Judge
April 9, 2018
Brooklyn, New York
^Although ''credible and compelling claims of actual innocence may
be considered even through an otherwise untimely petition,"
United States v. Clark, 571 F. App'x 67, 68 (2d Cir. 2014)
(citing McQuiggin v. Perkins, 598 U.S. 383 (2013)), petitioner
"does not assert facts, which, if true, would even suggest that
he is actually innocent of the charged offense." Id. (affirming
district court's judgment denying pro se plaintiff's motion to
vacate conviction pursuant to Federal Rule of Civil Procedure
60, and noting that had the motion been construed instead as a
petition filed pursuant to Title 28 United States Code Section
2255, it would nonetheless have been untimely).
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