Booker v. Graham

Filing 3

MEMORANDUM AND ORDER - This Court DENIES the Petition as untimely, and will not issue any certificate of appealability. Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C § 2253. Furthermore, the issues involved in this case are not debatable among reasonable jurors, a court could not resolve the issues in a different manner, and the questions involved do not deserve encouragement to proceed further. The Clerk of the Court is directed to mark the matter CLOSED. So Ordered by Judge Joanna Seybert on 9/28/10. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------X VIRGIL RUSSELL BOOKER, Petitioner, -againstSUPERINTENDENT H. GRAHAM, Auburn Correctional Facility, Respondent. ----------------------------------X APPEARANCES: For Petitioner: Virgil Russell Booker, Pro Se 04A0613 Auburn Correctional Facility PO Box 618 Auburn, NY 13024 For Respondent: No Appearance MEMORANDUM & ORDER 10-CV-4113(JS)

SEYBERT, District Judge: Petitioner Virgil Russell Booker, appearing pro se,

filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 2, 2010. Petition, admitting Booker that includes the a letter is As a supplement to his ("Supplemental but Letter")

Petition

untimely,

nevertheless

arguing that the case is not time-barred.

For the reasons set

forth below, the Court DISMISSES the Petition as time-barred. DISCUSSION I. Petitioner's Writ is Untimely The one-year statute of limitations under the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

applies to all state convictions that became final after April 24, 1996. See 28 U.S.C. § 2244(d)(1); Lindh v. Murphy, 521 U.S. The AEDPA

320, 117 S. Ct. 2059, 138 L. Ed. 2d 48 (1997). provides in pertinent part: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 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 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).

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In Petitioner's

this

case,

it

is

not final,

completely because he

clear does

when not

conviction

became

provide the date on which the New York State Court of Appeals affirmed the decision of the Supreme Court, Appellate Division, Second Department. However, it is apparent from the

Supplemental Letter that Petitioner learned about the Court of Appeals' decision on May 21, 2008. So, even if the Court

assumes that Petitioner's conviction became final on May 21, 2008, his Petition would be time-barred. II. Equitable Tolling Does Not Apply In This Case. The limitation period may be tolled for equitable

reasons if Petitioner can demonstrate that (i) "extraordinary circumstances prevented him from filing his petition on time," and (ii) he "acted with reasonable diligence throughout the

period he seeks to toll." (2d Cir. 2000).

Smith v. McGinnis, 208 F.3d 13, 17

Here, Booker's Petition was filed at least two years after his conviction became final, and well over one year late. In support of his argument for equitable tolling, he states that he had experienced the death of several family members in 2009. But Petitioner does not argue that (1) these family deaths

prohibited him filing of a timely Petition, (2) "as a matter of fairness" he was "prevented in 3 some extraordinary way from

exercising his rights, or [(3) that he had previously] asserted his rights in the wrong forum." Johnson v. Nyack Hosp., 86 F.3d

8, 12 (2d Cir. 1996) (quoting Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985), cert. denied, 474 U.S. 851, 106 S. Ct. 148, 88 L. Ed. 2d 122 (1985). deaths of his for family members of Moreover, even if the "extraordinary makes no

constituted

circumstances"

purposes

tolling,

Petitioner

representation that he made diligent efforts to file a Petition. In short, Petitioner reason the to has toll not the provided AEDPA this Court of with any

sufficient

statute

limitations. of equitable

Accordingly,

Court

holds

that

the

doctrine

tolling does not apply. CONCLUSION This Court DENIES the Petition as untimely, and will not issue any certificate of appealability. The Court will not Petitioner of a

issue a certificate of appealability in this case. has not made a substantial showing of the

denial

constitutional right.

See 28 U.S.C § 2253.

Furthermore, the

issues involved in this case are not debatable among reasonable jurors, a court could not resolve the issues in a different manner, and the questions involved do not deserve encouragement to proceed further. See Lucidore v. N.Y. State Div. of Parole,

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209 F.3d 107, 112 (2d Cir. 2000). directed to mark the matter CLOSED.

The Clerk of the Court is

SO ORDERED. /s/ JOANNA SEYBERT JOANNA SEYBERT, U.S.D.J. Dated: September 28, 2010 Central Islip, New YorK

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