Thornton v. Bradt

Filing 10

MEMORANDUM AND OPINION: For the reasons set forth herein, the petition for a writ of habeas corpus is dismissed as time-barred. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/25/2013.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No12-CV-2219 (JFB)
_____________________

WILLIAM THORNTON,
Petitioner,
VERSUS

MARK BRADT, ACTING SUPERINTENDENT,
Respondent.
___________________
MEMORANDUM AND ORDER
June 25, 2013
___________________

Joseph F. Bianco, District Judge:
William
Thornton
(hereinafter
“Thornton” 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 murder in the second
degree. Thornton challenges his conviction
on the following grounds: (1) trial counsel’s
failure to conduct his own independent
investigation
into
the
facts
and
circumstances of petitioner’s case rendered
counsel ineffective; and (2) petitioner’s
guilty plea was not knowingly, intelligently
and voluntarily entered since his plea was
induced by coercion. Bradt (hereinafter
“respondent”) moves to dismiss the petition
as untimely.
For the reasons set forth below,
respondent’s motion to dismiss is granted

and the petition is dismissed. Specifically,
the conviction under attack became final on
January 16, 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, 2012, over
twenty-seven months after the one-year
period expired, it is untimely. Moreover,
there is no basis for equitable tolling.
Accordingly, the petition is dismissed as
time-barred.1

1

Respondent also argues that the claims are
procedurally default and meritless. However, these
issues are moot in light of the Court’s ruling that the
petition is time-barred and, thus, the Court does not
address them.

agreement, to an indeterminate term of
incarceration of eighteen years to life. (Dec.
17, 2008 Minutes of Sentence (“Sentence
Tr.”) at 11.)

I. BACKGROUND
On November 12, 2008, petitioner pled
guilty to one count of murder in the second
degree, N.Y. Penal Law. § 125.25(3). (Nov.
12, 2008 Minutes of Plea (“Plea Tr.”) at 1112.) At that time, petitioner admitted that
during the course of a robbery on the
evening of December 24, 2007, he caused
the death of Kareem James by shooting
James using the loaded handgun he had
brought with him. (Id. at 8-12.) As part of
his plea agreement, the court promised
petitioner that it would sentence him to an
indeterminate term of imprisonment of
eighteen years to life. (Id. at 2-3.)

Petitioner filed a motion to vacate his
conviction on April 4, 2011. Petitioner
argued that: (1) his trial counsel was
ineffective because he failed to conduct an
investigation once he was appointed to the
case and relied solely on the work of
petitioner’s previous attorney; and (2)
petitioner’s plea was not knowingly,
intelligently, and voluntarily made because
petitioner’s counsel coerced him to plead
guilty by advising petitioner that his only
option was to plead guilty. (See Mem. of L.
in Supp. of Def.’s Mot. to Vacate Judgment,
No. 211A-2008, Apr. 4, 2011, at 11-27.) On
July 12, 2011, the Supreme Court, Suffolk
County denied petitioner’s motion, stating
that petitioner’s affidavit was “completely
self-serving” and finding his arguments
unpersuasive and without merit. See People
v. Thornton, No. 211A-2008, at 1-2 (Sup.
Ct. Suffolk Cnty., July 12, 2011). The
Appellate Division denied leave to appeal on
December 7, 2011.

Before entering his guilty plea, petitioner
stated on the record that he was pleading
guilty to the charge after he had sufficiently
discussed the matter with his attorney;
petitioner also stated that he was satisfied
with his representation.
(Id. at 5.)
Additionally, petitioner stated that no
promises other than those recited on the
record had been made to him. (Id. at 7.)
Petitioner voluntarily waived his right to
appeal after stating that he understood that
the District Attorney required him to waive
that right as a condition of his plea
agreement. (Id. at 8.) Lastly, the court
advised Thornton of his other rights, which
he agreed to waive as well. (Id. at 5-7.)

On May 4, 2012, petitioner filed the
instant application before this Court for a
writ of habeas corpus, arguing the same
claims as in his motion to vacate the
conviction in state court. (Pet. at 9, 14.) On
July 24, 2012, respondent filed a
memorandum of law in opposition to the
petition. Petitioner has not filed a reply
memorandum of law or submitted any
argument as to why the petition should not
be dismissed as untimely. The Court has
fully considered all of the parties’
submissions in rendering its decision.

Defense counsel also noted for the
record that, although he had only recently
replaced petitioner’s previous attorney, he
had two extended conversations with
petitioner in which he discussed the possible
defenses at trial. (Id. at 3.) Counsel advised
the court that, after these conversations,
petitioner had decided to enter a guilty plea.
(Id. at 3-4.)
On December 17, 2008, petitioner was
sentenced, in accordance with his plea
2

II. DISCUSSION
(D) the date on which the factual
predicate of the claim or claims
presented
could
have
been
discovered through the exercise of
due diligence.

Respondent seeks to dismiss the instant
habeas corpus petition because petitioner
failed to file his petition within the
applicable statute of limitations provided by
28 U.S.C. §2244(d)(1). Respondent seeks to
also dismiss because petitioner’s claims are
procedurally default and meritless. For the
reasons set forth below, this Court concludes
that Thornton’s petition is untimely under
Section 2244(d), and that 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, “[a] party
seeking to appeal from a judgment or a
sentence . . . must, within thirty days after
imposition of the sentence . . . file with the
clerk of the criminal court in which such
sentence was imposed . . . a written notice of
appeal . . . .” N.Y. C.P.L. § 460.10(1).
Therefore, when a defendant fails to appeal
a decision to the Appellate Division, the
conviction becomes final thirty days after
the sentence is imposed. See Bethea v.
Girdich, 293 F.3d 577, 578 (2d Cir. 2002);
Perich v. Mazzuca, CV-05-2942, 2007 WL
2455136, at *5 (E.D.N.Y. Aug. 23, 2007).

(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

In the instant case, only subsection (A)
could be applicable to this habeas petition.
As set forth below, the petition is untimely
under Section 2244(d)(1)(A).
3

attack serve to start the limitations period
running anew.”).

Pursuant to Section 2244(d)(1)(A), the
statute of limitations began to run on the
date petitioner’s conviction became final.
On November 12, 2008, petitioner pled
guilty to one count of murder in the second
degree, N.Y. Penal Law. § 125.25(3). On
December 17, 2008, petitioner was
sentenced to an indeterminate term of
incarceration of eighteen years to life.
Given that petitioner waived his right to
appeal as part of his plea agreement, he did
not appeal his conviction. Had he not
waived this right, his time to appeal would
have expired thirty days after his December
17, 2008 sentencing. See N.Y. C.P.L.
§ 460.10(1)(a). Accordingly, petitioner’s
conviction became final on January 16,
2009, and petitioner’s time to file his
petition expired on January 15, 2010.

Thornton had to file his petition by
January 15, 2010 for it to have been timely.
Accordingly, because petitioner did not file
any petitions in state court until fourteen
months after AEDPA’s statute of limitations
had expired, and did not file this petition
until over thirty-nine months after his
conviction became final, the Court
concludes that the petition is untimely.
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
(citation and internal quotation marks
omitted); 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) that
“extraordinary circumstances prevented him
from filing his petition on time”; and (2) that
he “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).

Under AEDPA, the “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 under this subsection.”
28 U.S.C. § 2244(d)(2); see Duncan v.
Walker, 533 U.S. 167 (2001). 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, 208 F.3d at
16-17 & 16 n.2. In this case, petitioner’s
state court motion to vacate does not toll the
statute of limitations because it was filed on
April 4, 2011, over two years and two
months after his conviction became final.
This collateral attack, filed so many months
after his conviction became final, “does not
reset the date from which the one-year
statute of limitations begins to run” Id. at 17;
see also Bell v. Herbert, 476 F. Supp. 2d
235, 244 (W.D.N.Y. 2007) (“A state-court
collateral attack on a conviction cannot toll
an already expired limitations period; nor
does a belatedly filed state-court collateral

In the instant case, petitioner has failed
to
demonstrate
any
extraordinary
circumstances that prevented him from
properly filing his habeas corpus petition in
a timely fashion. At the time of his plea on
November 12, 2008, petitioner knew the
alleged facts upon which he relies to
challenge both the voluntariness of his plea
and trial counsel’s representation of him. He
4

has not provided any evidence that he acted
with “reasonable diligence” during the over
two-year delay between his conviction and
his post-conviction motion or that any
“extraordinary circumstances” prevented
him from filing this petition or his state
court motion to vacate in a timely manner.
C.f. Valverde v. Stinson, 224 F.3d 129, 13334 (2d Cir. 2000) (intentional confiscation
of prisoner’s habeas corpus petition by
corrections officer constitutes extraordinary
circumstances).

III. CONCLUSION
For the reasons discussed above, the
petition for a writ of habeas corpus is
dismissed as time-barred. The Clerk of the
Court shall enter judgment accordingly and
close the case.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

In short, petitioner has not presented any
grounds that warrant equitable tolling.
Petitioner has also not made a claim of
actual innocence. 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).2 Accordingly, the petition is
dismissed as time-barred.

Dated: June 25, 2013
Central Islip, NY
***
Petitioner represented by John S. Campo,
626 Rxr Plaza, 6th Floor, West Tower,
Uniondale, NY 11556. Respondent is
represented by, Thomas J. Spota, District
Attorney of Suffolk County, by Marcia R.
Kucera, 200 Center Drive, Riverhead, NY
11901.

2

Even assuming arguendo that petitioner had made a
claim of actual innocence, nothing in the record
(including the instant petition, petitioner’s plea, and
the rest of the state court record) suggests that any
such claim would have any merit.
5