Orlando v. Nassau County D.A. Office

Filing 3

MEMORANDUM AND ORDER - The Court directs Petitioner to show cause by written affirmation, within thirty (30) days from entry of this Memorandum and Order, why the Petition should not be dismissed as time-barred by the AEDPA's one-year statute of limitations. If Petitioner fails to comply with this Order within the time allowed, the instant Petition shall be dismissed as time-barred under 28 U.S.C. § 2244(d). So Ordered by Judge Joanna Seybert on 9/27/11. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
MARK ORLANDO,
Petitioner,

MEMORANDUM & ORDER
11-CV-3992 (JS)

-againstERIC T. SCHNEIDERMAN,
Respondent.
------------------------------------X
APPEARANCES:
For Petitioner:
Mark Orlando, Pro Se
05A4730
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929
For Respondent:

No appearance

SEYBERT, District Judge:
Petitioner Mark Orlando, appearing pro se, seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.

Pursuant to Rule 4

of the Rules Governing Section 2254 Cases, the Court has conducted
an initial consideration of this Petition and, for the reasons set
forth below, has determined that the Petition appears to be timebarred

by

the

one-year

statute

of

limitations

under

the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
The Court directs Petitioner to show cause within thirty (30) days
of the entry of this Memorandum and Order why the Petition should
not be dismissed as time-barred.
BACKGROUND
Petitioner was convicted in the Supreme Court of the
State of New York, Nassau County, of Murder in the second degree

and he was sentenced to twenty-five years to life imprisonment on
August 18, 2005.

Petition at ¶¶ 1-5.

On April 28, 2009, the

Appellate Division affirmed the conviction, People v. Orlando, 61
A.D.3d 1001, 878 N.Y.S.2d 185 (2d Dep’t 2009), and the New York
Court of Appeals denied leave to appeal the decision of the
Appellate Division on October 29, 2009, People v. Orlando, 13
N.Y.3d 837, 918 N.E.2d 968, 890 N.Y.S.2d 453 (2009).

Petitioner

did not file a writ of certiorari to the United States Supreme
Court.

Petition at ¶ 18.
Petitioner also filed a writ of error corum nobis that

was denied by the Appellate Division on June 7, 2011, People v.
Orlando, 85 A.D.3d 823, 925 N.Y.S.2d 334 (2d Dep’t 2011).

Absent

from the Petition is the date that Petitioner filed his writ of
error corum nobis.
claims to have

Petition at ¶ 11(3).

In addition, Petitioner

another writ of error corum nobis now pending in

the Appellate Division.

Petition at ¶

15.

DISCUSSION
With the passage of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Congress set a one-year statute of
limitations for the filing of a petition for a writ of habeas
corpus by a person in custody pursuant to a state court conviction.
28 U.S.C. § 2244(d)(1).

The one-year period runs from the date on

which one of the following four events occurs, whichever is latest:
(A) the date on which the judgment became
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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)(A)-(D).

Under subsection (A),1 the instant

Petition appears untimely. Petitioner’s conviction became final on
or about January 29, 2010, upon expiration of the 90-day period for
seeking a writ of certiorari. Saunders v. Senkowski, 587 F.3d 543,
549-49 (2d Cir. 2009); Williams v. Artuz, 237 F.3d 147, 150-51 (2d
Cir. 2001).

In order to be timely, this Petition should have been

filed on or before January 29, 2011.

Instead, this Petition dated

August 15, 2011, was filed after the one-year limitations period
had already expired.

Therefore, unless the Petitioner can show

that the one-year statute of limitations period should be tolled,
the Petition is barred by 28 U.S.C. § 2244(d) as untimely.

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Petitioner does not state any facts to conclude that
subsections (B)-(D) are applicable.
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I.

Tolling
A.

Statutory Tolling
In

calculating

the

one-year

statute

of

limitations

period, “the time during which a properly filed application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be counted.”
28 U.S.C. § 2244(d)(2).

The post-conviction proceeding, however,

does not start the one-year period to run anew. Section 2244(d)(2)
merely

excludes

submission

from

the

time

a

post-conviction

the

calculation

of

the

motion

one-year

is

under

period

of

limitation. Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) (per
curiam).

“[A] state-court petition 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, 219-21 (2002).
Here, Petitioner filed two post-conviction motions: (i) a
Petition for an writ of error coram nobis that was denied on June
7, 2011, see People v. Orlando, 85 A.D.3d 823, 925 N.Y.S.2d 334 (2d
Dep’t 2011), and (ii) a still pending writ of error corum nobis.
Petitioner does not provide the date he filed either of the writs
of error corum nobis in state court. See Petition at ¶¶ 11(3), 15.
The Court, therefore, cannot determine how much, if any, tolling is
available based on the writs of error corum nobis.

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B.

Equitable Tolling
The limitations period may also be equitably tolled.

Holland v. Florida, __U.S.__, 130 S. Ct. 2549, 2560 (June 14,
2010); Smith, 208 F.3d at 17 (equitable tolling is available if
petitioner

can

demonstrate

that

“extraordinary

circumstances

prevented him from filing his petition on time,” and that he “acted
with reasonable diligence throughout the period he seeks to toll”).
While Petitioner provides a statement in support of the timeliness
of this Petition, see Petition at ¶ 18, in light of his pro se
status, the Court provides him another opportunity to demonstrate
whether equitable tolling should apply to this Petition.
Petitioner is advised, however, that ignorance of the law
is not sufficient to warrant equitable tolling.

Lizaide v.

Kirkpatrick, No. 09-CV-5038, 2009 WL 4110296, at *2 (E.D.N.Y. Nov.
24, 2009) (citing Worsham v. West, No. 05-CV-0530, 2006 WL 2462626,
at *2 (S.D.N.Y. Aug. 23, 2006) (“Mere ignorance of the law does not
qualify as an extraordinary circumstance warranting equitable
tolling in habeas cases.”)); Francis v. Miller, 198 F. Supp. 2d
232, 235 (E.D.N.Y. 2002) (ignorance of the law and legal procedure
is not so exceptional as to merit equitable tolling); Wilson v.
Bennett, 188 F. Supp. 2d 347, 354 (S.D.N.Y 2002) (“lack of legal
knowledge cannot excuse a delay in filing a petition.”).
CONCLUSION
Accordingly, the Court directs Petitioner to show cause

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by written affirmation,2 within thirty (30) days from entry of this
Memorandum and Order, why the Petition should not be dismissed as
time-barred by the AEDPA’s one-year statute of limitations. Day v.
McDonough, 547 U.S. 198, 209 (2006); Acosta v. Artuz, 221 F.3d 117,
124 (2d Cir. 2000).
In the affirmation, Petitioner must provide the date he
filed each of the writs of error corum nobis filed in state court.
In addition, Petitioner should present any facts which would
support

equitable

tolling

of

the

period

of

limitations,

if

applicable.
No response or answer shall be required at this time from
respondent and all further proceedings shall be stayed for thirty
(30) days or until Petitioner has complied with this Order.

If

Petitioner fails to comply with this Order within the time allowed,
the instant Petition shall be dismissed as time-barred under 28
U.S.C. § 2244(d).
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

September
27 , 2011
Central Islip, New York

2

An affirmation form is attached to this order for Petitioner’s
convenience.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MARK ORLANDO,
Petitioner,

PETITIONER'S
AFFIRMATION
11-CV-3992 (JS)

-againstERIC SCHNEIDERMAN,
Respondent.
-----------------------------------X
MARK

ORLANDO,

appearing

pro

se,

makes

the

following

affirmation under the penalties of perjury: I am the Petitioner in
this action and I respectfully submit this affirmation in response
to the Court's Order dated ______________.

The instant Petition

should not be time-barred by the one-year period of limitation
because:
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__________________________________________________ [YOU MAY ATTACH
ADDITIONAL PAGES, IF NECESSARY].
In view of the foregoing, it is respectfully submitted that
the instant Petition should be permitted to proceed.
DATED:

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_________________________________
Signature & Identification Number
_________________________________
Address
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City, State & Zip Code

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