Vasquez v. Martuscello
Filing
9
ORDER granting 6 Motion to Dismiss. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED the respondent's motion to dismiss is granted and the petition for a writ of habeas corpus is dismissed as time-barred. SO ORDERED. Ordered by Judge Joseph F. Bianco on 12/22/2011. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No11-CV-02263 (JFB)
_____________________
HERMAN VASQUEZ,
Petitioner,
VERSUS
D. MARTUSCELLO, SUPERINTENDENT OF COXSACKIE CORRECTIONAL. FACILITY
Respondent.
___________________
MEMORANDUM AND ORDER
December 22, 2011
___________________
Joseph F. Bianco, District Judge:
Herman Vasquez (hereinafter “Vasquez”
or “petitioner”) petitions this Court for a
writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, to vacate his conviction for one
count of criminal sexual act in the first
degree. Vasquez challenges his conviction
on the following grounds: (1) denial of
effective assistance of trial counsel; and (2)
his plea was not knowing and intelligent. D.
Martuscello (hereinafter “respondent”)
moves to dismiss the petition as untimely.
For the reasons set forth below, the
respondent’s motion to dismiss is granted
and the petition is dismissed. Specifically,
the conviction under attack became final on
June 7, 2009. Under the Antiterrorism and
Effective Death Penalty Act of 1996
(“AEDPA”), a petition must be filed no later
than one year following the date a
conviction becomes final. As the present
petition was filed on May 4, 2011, almost
eleven months after the one-year period
expired, it is untimely. Moreover, there is
no basis for equitable tolling, and no basis
for an actual innocence claim. Accordingly,
the petition is dismissed as time-barred.
I. BACKGROUND
On April 9, 2007, petitioner withdrew
his plea of not guilty and entered a plea of
guilty for the crime of criminal sexual act in
the first degree.1 (April 9, 2007 Minutes of
1
Originally, the defendant was charged with
multiple counts, on three different docket numbers,
including at least three B felonies which each carried
a minimum term of imprisonment of five years and a
maximum of twenty-six years. (Plea Tr. at 4-5.) It
was the People’s intention that should the case go
Plea (“Plea Tr.”) at 7, 11.) At that time,
petitioner admitted that on November 22,
2006, at 55 Bedford Street in Westbury,
New York, he inserted his penis into the
anus of a victim who, at the time, was less
than 11 years old. (Id. at 10.) An official
Spanish Interpreter was present for the
proceedings. (Id. at 2.)
agreement, to eighteen years’ imprisonment
and five years’ post-release supervision.
(July 12, 2008 Minutes of Sentencing
(“Sentencing Tr.”) at 3-4.)
On or about July 16, 2007, petitioner
moved to vacate his judgment on the ground
that he was denied effective assistance of
counsel. (Motion to Vacate, July 16, 2007.)
By Order dated September 19, 2007, the
County Court, County of Nassau, denied
petitioner’s motion. People v. Vasquez, SCI
No. 818N/07 (County Court, Nassau County
September 19, 2007).
Before entering his plea of guilty,
petitioner’s attorney clearly stated on the
record that her client was pleading guilty to
the charge with the understanding that the
court would impose a sentence of eighteen
years’ imprisonment followed by five years’
post-release supervision. (Id. at 6.) His
attorney also indicated that she had advised
petitioner that he faced possible deportation
after he served his sentence and that a new
statute had been passed that may subject him
to civil confinement at the conclusion of his
sentence. (Id.) Petitioner also indicated
that, except for the court,2 no one made any
promises to him. (Id. at 8.) Additionally,
the court advised Vasquez of his rights and
Vasquez agreed to waive said rights. (Id. at
2-4, 10-11.)
Petitioner
directly
appealed
his
conviction to the New York Supreme Court,
Appellate Division, Second Department,
which affirmed his conviction on April 7,
2009. People v. Vasquez, 61 A.D.3d 309,
875 N.Y.S.2d 901 (N.Y. App. Div. 2009).
Petitioner did not appeal the Second
Department’s decision.
Petitioner was
served with Notice of Entry of the Second
Department’s Order on May 8, 2009.
(Notice of Entry, May 8, 2009).
Petitioner filed his second motion to
vacate the judgment on or about July 24,
2010. (Notice of Motion to Vacate dated
July 24, 2010.) The Nassau County Court
denied petitioner’s motion on September 2,
2010. People v. Vasquez, Motion Cal. C650, SCI No. 818N/2007 (County Court,
Nassau County, Sept. 2, 2010).
The
Appellate Division subsequently denied
petitioner’s application for leave to appeal
the Nassau County Court’s September 2,
2010 Order on November 30, 2010. People
v. Vasquez, Ind. No. 818/07 (N.Y. App. Div.
Nov. 30, 2010).
On July 12, 2007, petitioner was
sentenced, in accordance with his plea
through to the Grand Jury, at least three of the counts
would have been upgraded to A-II felonies, each of
which would carry a minimum term of imprisonment
of ten years to life and a maximum of twenty-five
years to life. (Id. at 5-6.) According to the plea
agreement, in satisfaction of all docket numbers,
petitioner would plead guilty to the single crime of
criminal sexual act in this first degree. (Id. 4-5.) The
plea agreement was contingent on petitioner pleading
guilty and waiving his right to appeal both the plea
and the sentence of the court. (Id. at 5.)
2
Before defendant changed his plea from not guilty
to guilty, the court told the defendant that if after
reading the presentence report it was necessary to
sentence petitioner to a term longer than eighteen
years’ imprisonment with five years’ post-release
supervision, the court would allow him to withdraw
his plea. (Plea Tr. at 8.)
On May 4, 2011, pro se petitioner filed
the instant application before this Court for a
writ of habeas corpus. In his petition,
petitioner claims that his counsel was
2
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;
ineffective because: (1) his counsel
misinformed him of his deportation status
due to improperly understanding the court
report; (2) his counsel never tried to find
evidence of his innocence; and (3) the
counsel who appeared on his behalf was not
his attorney. (Id. at 4-5.) Petitioner also
contends that his plea was not knowing or
intelligent due to the fact that he was drunk
at the time of the alleged criminal activity.
(Id. at 5.) On August 25, 2011, respondent
filed a motion to dismiss the petition. On
September 22, 2011, petitioner filed a reply
to respondent’s motion. The Court has fully
considered all submissions of the parties.
(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.
II. DISCUSSION
Respondent seeks to dismiss the instant
habeas corpus petition because petitioner
failed to file his petition for habeas corpus
within the applicable statute of limitations
provided by 28 U.S.C. §2244(d)(1). For the
reasons set forth below, this Court concludes
that Vasquez’s’s petition is untimely under
Section 2244(d), and there is no basis for
equitable tolling of the statute of limitations.
28 U.S.C. § 2244(d)(1)(A-D). Pursuant to
AEDPA, “[t]he time during which a
properly filed application for State postconviction or other collateral review with
respect to the pertinent judgment or claim is
pending shall not be counted toward any
period of limitation.”
28 U.S.C. §
2244(d)(2). The Second Circuit has held
that “[a] state court application or motion for
collateral relief 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 v.
Artuz, 199 F.3d 116, 120 (2d Cir. 1999); see
also Carey v. Saffold, 536 U.S. 214, 217,
220-21 (2002); Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000); Gant v. Goord, 430 F.
Supp. 2d 135, 138 (W.D.N.Y. 2006).
A. Statute of Limitations
The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) imposes a
one-year statute of limitations on state
prisoners seeking habeas corpus review in
federal court. 28 U.S.C. § 2244(d)(1). The
statute begins to run from the latest of:
(A) the date on which the
[petitioner’s]
judgment
[of
conviction] became final by the
conclusion of direct review or the
expiration of the time for seeking
such review;
Pursuant to New York law, within thirty
days of service of the order sought to be
appealed, an appellant must make an
application for a certificate granting leave to
appeal to the New York Court of Appeals.
N.Y.C.P.L. § 460.10(5). Therefore, when a
defendant fails to appeal a decision of the
(B) the date on which the
impediment to filing an application
3
New York Supreme Court, Appellate
Division, the conviction becomes final thirty
days after the service of Notice of Entry.
See Padilla v. Keane, No. 03 Civ. 357(VM),
2003 WL 22462004, at * 1 (S.D.N.Y. Oct.
29, 2003) (appeal to the court of appeals
from an order of an intermediate appellate
court must be taken within 30 days) (citing
M.P. v. Perlman, 269 F. Supp. 2d 36, 38
(E.D.N.Y. June. 10, 2003)).
7, 2009, and petitioner’s time to file his
petition expired on June 7, 2010.4
Under AEDPA, the “time during which
a properly filed application for State postconviction or other collateral review with
4
Respondent takes the position that petitioner’s
conviction became final on September 5, 2009, not
June 7, 2009. Specifically, respondent states that,
after petitioner’s time to seek leave to appeal to the
New York Court of Appeals expired, the conviction
was not final until 90 days later, on September 5,
2009, when his time to file for certiorari with the
United States Supreme Court had expired. (Resp.
Memo of Law, 4-5.) However, given that petitioner
failed to seek leave to appeal to the highest state
court, the United States Supreme Court could not
review his case. See Gorman v. Washington Univ.,
316 U.S. 98, 100-01 (1942) (dismissing writ of
certiorari where discretionary review was not sought
from “the last state tribunal . . . to which the cause
could be brought for review which is the highest
court of a State in which a decision could be had
within the meaning of the jurisdictional statute”)
(quotations and citations omitted). Under such
circumstances, the 90-day period to seek certiorari
from the United States Supreme Court is not counted.
See, e.g., Riddle v. Kemna, 523 F.3d 850, 855 (8th
Cir. 2008) (“This court holds that, because the United
States Supreme Court could not have reviewed
[petitioner’s] direct appeal, ‘the expiration of time for
seeking direct review’ does not include the 90-day
period for filing for certiorari.”) (quoting Hemmerle
v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007));
accord Pugh v. Smith, 465 F.3d 1295, 1299-1300
(11th Cir. 2006); Roberts v. Cockrell, 319 F.3d 690,
694 (5th Cir. 2003); Wesley v. Snedeker, 159 Fed.
App’x 872, 873-74 (10th Cir. 2005); Feenin v.
Myers, 110 Fed. App’x 669, 671 (6th Cir. 2004); see
also Tuggle v. Guarini, No. SA CV 08-82-MMM(E),
2009 WL 192890, at *1 (C.D. Cal. Jan. 21, 2009)
(“Because Petitioner did not appeal to the California
Court of Appeal, much less seek review in the
California Supreme Court, there never existed any
period of time during which he could have petitioned
the United States Supreme Court for certiorari.
Accordingly, the finality of Petitioner’s conviction
did not await the expiration of this non-existent
period of time.”) In any event, as discussed in
respondent’s brief and infra, the petition would still
be untimely even if the petitioner is given the benefit
of this additional 90-day period and his conviction
became final on September 5, 2009.
In the instant case, because subsections
(B) through (D) of Section 2244(d)(1) are
inapplicable, the statute of limitations began
to run on the date petitioner’s conviction
became final, pursuant to Section
2244(d)(1)(A).3
On April 9, 2007, petitioner pled guilty
to one count of Criminal Sexual Assault in
the First Degree and was sentenced on July
12, 2007 to eighteen years’ imprisonment
and five years’ post-release supervision.
The
Second
Department
affirmed
petitioner’s conviction on April 7, 2009.
Notice of Entry of the New York Supreme
Court, Appellate Division’s Order was
served on May 8, 2009. Thus, petitioner had
until June 7, 2009 to seek leave to appeal the
Second Department’s decision. However,
petitioner failed to seek leave to appeal to
the Court of Appeals.
Accordingly,
petitioner’s conviction became final on June
3
Although petitioner makes a conclusory statement
that he is entitled to delay under 28 U.S.C. §
2244(d)(1)(D), he fails to provide any basis for the
application of that provision. In particular, there is
no evidence of a newly discovered factual predicate.
To the contrary, all of petitioner’s alleged claims –
including that he did not understand his attorney’s
advice, that his attorney did not investigate his case,
and that he was drunk when he sexually abused the
victim – were all known to him at the time of his plea
and throughout the limitations period. Thus, there is
no basis for the application of Section 2244(d)(1)(D).
4
period to file had expired, the Court
concludes that this petition is untimely.5
respect to the pertinent judgment or claim is
pending shall not be counted toward any
period of limitation under this subsection.”
28 U.S.C. § 2244(d)(2); see Duncan v.
Walker, 533 U.S. 167 (2001). However, a
state court application that is decided well
before the statute of limitations begins to run
does not toll the statute of limitations. See
Lozada v. Cripps, No. 09 Civ. 8897
(DAB)(THK), 2010 WL 7113583, at *5
(S.D.N.Y. Dec. 17, 2010), report and
recommendation adopted by, No. 09 Civ.
8897 (DAB), 2011 WL 3251576 (S.D.N.Y.
July 28, 2011) (§ 440.10 motion, § 330.30
motion, and state writ of habeas corpus filed
in state court did not toll the AEDPA statute
of limitations because they were decided
before the statute of limitations began to
run).
Moreover, a state collateral
proceeding commenced after the one-year
limitations period has already expired does
not reset the start of the limitations period.
See Smith v. McGinnis, 208 F.3d 13, 16-17
& n.2 (2d Cir. 2000). In this case, neither
of petitioner’s motions to vacate tolls the
statute of limitations.
Petitioner’s first
motion to vacate does not toll the statute of
limitations because the County Court denied
the motion on September 17, 2007, almost
two years before the one year statute of
limitations began to run. See Lozada, 2010
WL 7113583, at *5.
Additionally,
petitioner’s second motion to vacate was
filed on July 24, 2010, more than a month
after petitioner’s conviction became final
and, therefore, did not “reset the start of the
limitations period.” See Smith, 208 F.3d at
16-17 & n.2.
B. Equitable Tolling of the Statute of
Limitations
Although the instant petition is untimely,
in “rare and exceptional” circumstances, the
one-year statute of limitations is subject to
equitable tolling. See Smith, 208 F.3d at 17;
see also Warren v. Garvin, 219 F.3d 111,
113 (2d Cir. 2000). In order to obtain the
benefit of equitable tolling, a petitioner must
make two showings: (1) he must
demonstrate
that
“extraordinary
circumstances prevented him from filing his
petition on time;” and (2) he must have
“acted with reasonable diligence throughout
the period he seeks to toll.” Smith, 208 F.3d
at 17 (citation omitted). The petitioner bears
the burden to affirmatively show that he is
entitled to equitable tolling. See Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005);
Muller v. Greiner, 139 F. App’x 344, 345
(2d Cir. 2005).
In the instant case, petitioner has failed
to
demonstrate
that
“extraordinary
circumstances” prevented him from properly
filing his habeas corpus petition in a timely
5
Even if petitioner is given the benefit of the 90-day
period for seeking certiorari to the Supreme Court,
his petition is still untimely. In particular, with the
additional 90-day period, petitioner’s conviction
became final on September 5, 2009, and he had one
year thereafter to seek habeas relief. The time
limitation would have been tolled from July 24, 2010,
when he filed his motion to vacate judgment, until
November 30, 2010, when the Appellate Division
denied leave to appeal the adverse decision on that
motion. As of July 24, 2010, petitioner had 43 days
remaining in which he could timely file his habeas
petition. Thus, he needed to file such petition by
January 12, 2011, which is 43 days from November
30, 2010. Petitioner filed the petition on May 2,
2011, which is almost 4 months after the expiration
of his one-year period.
Thus, even under a
calculation that includes the 90-day certiorari period,
the petition is clearly untimely.
Therefore, in order for Vasquez’s
petition to be timely it must have been filed
before June 7, 2010. Accordingly, because
petitioner did not file his petition until May
4, 2011, almost one year after the time
5
serving statement that the litigant is ignorant
of the law is not grounds for equitable
tolling of a statute of limitations”).
fashion. Petitioner acknowledges that his
petition is untimely, but alleges that his
defect should be ignored because petitioner
does not speak English and because he has
been unable to receive proper assistance
with his petition while incarcerated.
In short, petitioner has not presented any
grounds that warrant equitable tolling. Nor
has petitioner made a showing of actual
innocence.6 See Whitley v. Senkowski, 317
F.3d 223, 225 (2d Cir. 2003) (holding that it
was in error to dismiss a petition claiming
actual innocence, on statute of limitations
grounds,
without
further
analysis).
Accordingly, the petition is dismissed as
time-barred.
A prisoner’s inability to speak English
and obtain legal assistance is not an
“extraordinary circumstance” that warrants
equitable tolling. See Tan v. Bennett, No.
00CIV6413 (GEL), 2001 WL 823869, at *2
(S.D.N.Y. July 20, 2001) (“[d]istrict judges
in this Court and elsewhere have
unanimously held that lack of English
proficiency is insufficient to justify the
equitable tolling of the one-year limitations
period”) (collecting cases); accord Martinez
v. Kuhlmann, No. 99 Civ. 1094 (MBM),
2000 WL 622626, at *3 (S.D.N.Y. May 15,
2000) (not permitting equitable tolling on
the basis of petitioner’s inability to speak
English and difficulty obtaining legal
assistance in the prison because “[t]o permit
equitable tolling in all cases involving such
problems would frustrate the statute’s
objectives, because many inmates could
make the same claims.”); see also Romero v.
Ercole, No. 08-CV-4983 (RRM), 2009 WL
1181260, at *5 (E.D.N.Y. Apr. 30, 2009)
(holding that “neither [petitioner’s] lack of
legal assistance nor his own lack of legal
knowledge provides a basis for equitably
tolling the statute of limitations”); Ayala v.
Miller, No. 03-CV-3289 (JG), 2004 WL
2126966, at *2 (E.D.N.Y. Sept. 24, 2004)
(“Neither a prisoner’s pro se status, nor his
lack of legal expertise, provides a basis for
equitable tolling of AEDPA’s statute of
limitations.” (citations omitted)); Wilson v.
Bennett, 188 F. Supp. 2d 347, 354 (S.D.N.Y.
2002) (“[L]ack of legal knowledge cannot
excuse a delay in filing a petition.”); Brown
v. Superintendent, Elmira Corr. Facility,
No. 97-Civ. 3303 (MBM), 1998 WL 75686,
at *4 (S.D.N.Y. Feb. 23, 1998) (“[A] self-
6
It should be noted that, although it was not set forth
in Vasquez’s initial petition, Vasquez asserts in his
reply that the court should grant a hearing on the
claim of actual innocence despite the untimeliness of
the petition. (Pet. Reply at ¶ 5.) Petitioner alleges
that he was intoxicated at the time of the crime and
therefore some of the elements of his crime were
negated. (Id.) As a threshold matter, petitioner did
not properly raise the issue of actual innocence in his
initial petition, and he was not reasonably diligent in
pursuing this claim, which was known to him at the
time of his plea. In any event, in order to establish
actual innocence, “petitioner must demonstrate that,
in light of all the evidence, it is more likely than not
that no reasonable juror would have convicted him.”
Fountain v. United States, 357 F.3d 250, 255 (2d Cir.
2004) (quoting Bousley v. United States, 523 U.S.
614, 623 (1998)). Furthermore, in the context of a
habeas petition following a guilty plea, “‘actual
innocence’ means factual innocence, not mere legal
insufficiency.” Id. (quoting Bousley, 523 U.S. at 623)
(emphasis added). Under this standard, petitioner has
failed to provide any credible, non-conclusory,
evidence of actual innocence. In short, petitioner has
failed to establish that his time-barred petition should
be heard based upon a credible claim of actual
innocence.
6
III. CONCLUSION
For the reasons discussed above, the
petition for a writ of habeas corpus is
dismissed as time-barred.
Because
petitioner has failed to make a substantial
showing of a denial of a constitutional right,
no certificate of appealability shall issue.
See 28 U.S.C. § 2253(c)(2). The Clerk of
the Court shall enter judgment accordingly
and close the case.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: December 22, 2011
Central Islip, NY
***
Petitioner is proceeding pro se. Respondent
is represented by, Sarah S. Rabinowitz, Esq.
of the Nassau County District Attorney's
Office, 262 Old Country Road, Mineola, NY
11501.
7
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