McRae v. The Attorney General of the State of New York

Filing 5

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)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

TROY McRAE,

Petitioner,

MEMORANDUM AND ORDER

-against17-CV-5328

(KAM)

THE ATTORNEY GENERAL OF

THE STATE OF NEW YORK,

Respondent.
X

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.

Petitioner's motion

for leave to file in forma pauperis is granted.
Background

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) .)

The Supreme

Court of New York, Appellate Division, Second Department,

affirmed the conviction on May 5, 2009.
493.

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.
2.)

(Pet. at

He does not provide any other dates for when these state

court petitions for collateral relief were filed or decided.

A

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
claim.

(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,
and deportation.

(Pet. at 2-3.)
Discussion

I.

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

court judgment.

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
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, 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
diligence.

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."

Holland, 560

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.
2000).

A district court can "raise a petitioner's apparent

failure to comply 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 (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.
1904)).

A court should offer pro se habeas petitioners an

opportunity to amend a flawed petition.

Garcia v.

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)).

II.

Application

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

expired.

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.

Petitioner

has not described any basis for the court to apply Sections
2244(d)(1)(B)-(D), or to equitably toll the statute of
limitations.

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
denied").)

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

allegations.2

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.
SO ORDERED.

/s/
KIYO A. MATSUMOTO

United States District Judge

Dated:

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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