Duff v. Holder et al
Filing
28
MEMORANDUM AND OPINION. For the reasons set forth herein, the Court concludes that the petition is time-barred, and that petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Therefore, the Court denies the petition for a writ of habeas corpus. 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 this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/20/2014. (Gibaldi, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-250 (JFB)
_____________________
WILLIAM DUFF,
Petitioner,
VERSUS
ERIC HOLDER ET AL.,
Respondents.
___________________
MEMORANDUM AND ORDER
October 20, 2014
___________________
JOSEPH F. BIANCO, District Judge:
Petitioner William Duff (“Duff” or
“petitioner”) petitions this Court for a writ
of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging his January 6, 2004
conviction in the Supreme Court of New
York, County of Suffolk, under Indictment
No. 436-03, on charges of one count of
sexual abuse in the first degree, N.Y. Penal
Law § 130.65, and one count of assault in
the second degree, id. § 120.05. Petitioner
was acquitted of one count of attempted
murder in the second degree, id. §§ 110,
125.25, one count of rape in the first degree,
id. § 130.35, and one count of criminal
mischief in the third degree, id. § 145.04. He
was sentenced, as a second felony offender,
to concurrent seven-year determinate terms
of incarceration, to be followed by five years
of post-release supervision. He also was
certified as a sex offender, and an order of
protection was issued on the victim’s behalf.
among other things, the state court had no
subject matter and/or personal jurisdiction
over him. Respondents United States of
America; United States Attorney General
Eric Holder; the Chairwoman of the New
York State Department of Corrections and
Community Supervision (“NYSDCCS”);
Vincent DeMarco (“DeMarco”), the Sherriff
of the Suffolk County Correctional Facility
(“SCCF”); and Charles Ewald (“Ewald”),
the Warden of SCCF (collectively, the
“County Respondents”) and Tina Stanford
(“Stanford”) 1 (all together, “respondents”)
oppose the petition as untimely and
otherwise without merit. For the reasons set
forth below, the Court dismisses the petition
as time-barred. Specifically, the petition was
filed more than one year following the date
the conviction under attack became final,
and there is no basis for equitable tolling.
Moreover, petitioner’s claims are plainly
Petitioner referred to respondent as “Standford,” but
respondent clarified that her last name is Stanford.
1
In the instant petition, Duff contends that
he is entitled to habeas relief because,
without merit. Accordingly, the Court denies
the petition in its entirety.2
five-year
periods
of
post-release
supervision, certified him as a sex offender,
and issued an order of protection on the
victim’s behalf. (Kucera Aff. ¶ 6.)
I. BACKGROUND
A. Facts
On May 16, 2004, petitioner filed a brief
appealing his conviction with the Appellate
Division of the Supreme Court of the State
of New York, Second Department.
Petitioner argued that (1) the trial court
committed several prejudicial evidentiary
errors; (2) the People had failed to establish
petitioner’s guilt beyond a reasonable doubt,
and the verdict was against the weight of the
evidence; (3) petitioner was denied a fair
trial due to prosecutorial misconduct during
the summation; and (4) petitioner’s sentence
was harsh and excessive. (Direct Appeal
Brief, Resp. Ex. B.) On November 25, 2005,
petitioner filed a pro se supplemental brief,
raising several additional issues. (Direct
Appeal Suppl. Brief, Resp. Ex. D.) The
Appellate Division affirmed the conviction
on May 16, 2006. People v. Duff, 813
N.Y.S.2d 910 (N.Y. App. Div. 2006). On
July 18, 2006, the New York Court of
Appeals denied Duff’s application for leave
to appeal. People v. Duff, 7 N.Y.3d 788
(2006). On November 7, 2006, the Court of
Appeals denied petitioner’s application for
reconsideration. People v. Duff, 7 N.Y.3d
901 (2006). Duff did not file a petition for a
writ of certiorari to the United States
Supreme Court.
The following facts were adduced from
the petition and documents attached thereto,
and the state court trial and appellate record.
On February 19, 2003, a grand jury
indicted Duff on one count of sexual abuse
in the first degree, one count of assault in the
second degree, one count of attempted
murder in the second degree, one count of
rape in the first degree, and one count of
criminal mischief in the third degree,
stemming from a sexual assault on
December 30, 2002. (Indictment, Resp. Ex.
A.)3 A jury convicted petitioner on January
6, 2004, of sexual abuse in the first degree
and assault in the second degree, and Duff
promptly filed a notice of appeal. On
February 11, 2004, the trial court resentenced petitioner to concurrent sevenyear determinate terms of incarceration, with
2
Stanford has moved to dismiss the petition pursuant
to Federal Rule of Civil Procedure 12(b)(6), based on
qualified and Eleventh Amendment immunity, and
for failure to state a claim. The issues she raises relate
to causes of action pursuant to 42 U.S.C. § 1983, but
the instant matter is a petition for a writ of habeas
corpus. Thus, the issues Stanford raises mostly are
irrelevant. In any event, to the extent petitioner is
challenging any conviction and sentence based on
Stanford’s conduct, those challenges are dismissed
for the same reasons discussed infra. Furthermore,
although petitioner does not clearly seek habeas relief
with respect to events occurring after his initial
release from prison on February 5, 2010 (e.g., as a
result of violations of the terms of his post-release
supervision), any such challenges must be raised in a
separate habeas petition after state court remedies are
exhausted, or, if appropriate, through an action
pursuant to 42 U.S.C. § 1983.
On January 5, 2004, before his direct
appeal was perfected, petitioner filed a pro
se motion with the trial court seeking an
order vacating his conviction pursuant to
New York Criminal Procedure Law (“CPL”)
§ 440.10. Petitioner argued that (1) the
prosecution had engaged in misconduct by
eliciting inflammatory evidence at trial and
by withholding the results of scientific
testing conducted on evidence; (2) the trial
court erroneously determined that Duff’s
statements to officers were admissible; and
“Resp. Ex.” refers to the exhibits attached to the
Affirmation of Marcia Kucera from the Suffolk
County District Attorney’s Office.
3
2
(3) Duff had been deprived of his right to a
fair trial because the trial court refused to
remove a juror who was biased against him.
(First 440.10 Motion, Resp. Ex. F.) On
February 4, 2004, the trial court denied the
motion. (February 4, 2004 Decision, Resp.
Ex. H.)
2014, the Court ordered the Attorney
General of the State of New York or the
District Attorney of Suffolk County to
respond to the petition. Respondents filed
their opposition on September 15, 2014.
Petitioner never replied.4
On August 9, 2009, petitioner filed a
second motion pursuant to CPL § 440.10,
presenting twenty-three claims in support of
the vacatur of his conviction, including the
deprivation of his right to testify before the
grand jury, the grand jury’s consideration of
illegal evidence, and ineffective assistance
of counsel. (Second 440.10 Motion, Resp.
Ex. I.) On November 30, 2009, the state
court denied the motion. (November 30,
2009 Decision, Resp. Ex. K.) On September
14, 2011, the Appellate Division denied
petitioner’s application for leave to appeal
that denial. People v. Duff, 2011 N.Y. Slip
Op. 83060(U) (N.Y. App. Div. 2011).
4
According to the docket, on September 16, 2014,
the Clerk’s Office returned a motion for default
judgment that petitioner attempted to file in this
matter, informing petitioner that a motion for default
judgment cannot be filed unless and until the Clerk of
the Court has issued a Certificate of Default.
(September 16, 2014 Letter, Docket No. 26.) On
September 24, 2014, the Clerk’s Office returned an
“addendum” to the motion. (September 24, 2014
Letter, Docket No. 27.) In that addendum (attached to
Docket No. 27), Duff complained that the County
Respondents had requested several extensions of time
in order to delay this Court’s decision on the petition.
Petitioner stated the failure to respond “can only be
classified as a [sic] on-going cover-up ‘which the
indictment was produced and secured by fraud,
perjury or the suppression of evidence or other police
or prosecutorial misconduct taken in bad faith.”
As a threshold matter, the County Respondents’
requests for an extension of time do not entitle
petitioner to entry of a default or a default judgment.
“‘It is established law in the Second Circuit that the
Government’s failure to file a timely response does
not entitle a habeas petitioner to a default.’” Cohen v.
United States, No. 07-CV-7397 (GBD), 2013 WL
5882923, at *8 (S.D.N.Y. Oct. 29, 2013) (quoting
Santos v. Pavant, No. 04-CV-8705, 2005 WL
1431688, at *1 (S.D.N.Y. June 17, 2005)); see
Bermudez v. Reid, 733 F.2d 18, 21–22 (2d Cir. 1984).
As the Second Circuit has noted, “were district courts
to enter default judgments without reaching the
merits of the claim, it would be not the defaulting
party but the public at large that would be made to
suffer, by bearing either the risk of releasing
prisoners that in all likelihood were duly convicted,
or the costly process of retrying them.” Bermudez,
733 F.2d at 21. “As such, the entry of a default
judgment in a habeas petition is not warranted unless
the petitioner can establish ‘a claim or right to relief
by evidence satisfactory to the court.’” Cohen, 2013
WL 5882923, at *9 (quoting Fed. R. Civ. P. 55(e)).
For the reasons set forth infra, petitioner has not
made such a showing with respect to the underlying
petition here. Further, the County Respondents filed
their response on September 15, 2014, within the
On January 21, 2010, the County Court
conducted a risk level assessment hearing
pursuant to New York Correction Law
§ 168-n. The court designated petitioner a
Level Three Sexually Violent Offender.
(Kucera Aff. ¶ 18.) On June 27, 2012, the
Appellate
Division
affirmed
this
determination,
rejecting
petitioner’s
argument that the People had failed to prove
that he had taken advantage of the victim
while she was physically helpless. People v.
Duff, 946 N.Y.S.2d 891 (N.Y. App. Div.
2012). On September 6, 2012, the New York
Court of Appeals denied petitioner’s
application for leave to appeal that decision.
People v. Duff, 19 N.Y.3d 810 (2012).
B. The Instant Petition
Petitioner filed the instant petition for a
writ of habeas corpus on January 8, 2014.
On January 29, 2014, Stanford moved to
dismiss for failure to state a claim. Petitioner
opposed on March 19, 2014. On April 9,
3
and made retroactively applicable to
cases on collateral review; or
II. DISCUSSION
Respondents argue that the petition
should be denied because petitioner failed to
file it 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 the petition is
untimely and that there is no basis for
equitable tolling of the statute of limitations.
(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). 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 petition 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;
(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;
Only subsection (A) could be applicable
to this habeas petition, and, as set forth
below, the petition is untimely under Section
2244(d)(1)(A).5
Pursuant to Section 2244(d)(1)(A), the
statute of limitations began to run on the
date Duff’s conviction became final. The
trial court entered judgment against
petitioner on January 6, 2004, and resentenced him on February 11, 2004.6 As set
forth supra, the Appellate Division affirmed
(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
5
Section 2244(d)(1)(D) cannot apply, because the
asserted grounds for habeas relief are Duff’s race and
the sufficiency of the grand jury indictment.
time frame set by the Court’s August 12, 2014 Order.
The Court discerns nothing in the record to indicate
that the County Respondents sought three extensions
of time in bad faith, instead of a good faith need to
fully investigate petitioner’s claims.
6
The reasons for the re-sentencing are unclear, but
they are irrelevant to the Court’s analysis.
4
the conviction on May 16, 2006; the New
York Court of Appeals denied Duff’s
application for leave to appeal on July 18,
2006; and it denied petitioner’s application
for reconsideration on November 7, 2006.
Thus, the conviction became final on
February 5, 2007, when the ninety-day
period to seek a writ of certiorari from the
United States Supreme Court expired. See,
e.g., Vega v. Bellnier, No. 10-CV-4202
(KAM), 2010 WL 4484377, at *1 (E.D.N.Y.
Nov. 1, 2010) (finding petitioner’s
conviction became final, commencing the
one-year federal habeas limitations period,
ninety days after the New York Court of
Appeals denied, upon reconsideration,
petitioner’s request for leave to appeal); see
also Saunders v. Senkowski, 587 F.3d 543,
547–48 (2d Cir. 2009) (stating that a
petitioner’s limitations period begins
running upon the expiration of the ninetyday period for seeking a writ of certiorari);
Williams v. Artuz, 237 F.3d 147, 150–51 (2d
Cir. 2001) (same). Accordingly, in order to
be timely, petitioner should have filed this
habeas petition in federal court either on or
before February 5, 2008. Instead, he filed
the petition on January 8, 2014, years after
the statute of limitations expired. Therefore,
unless petitioner can show that the statute of
limitations should be tolled, the petition is
untimely under 28 U.S.C. § 2244(d).
§ 440.10 motion. Moreover, that 2009
challenge did not reset the start of the
limitations period, because a post-conviction
proceeding does not start the one-year
period running anew. Smith, 208 F.3d at 16–
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
attack serve to start the limitations period
running anew.”). Section 2244(d)(2) only
excludes the time a post-conviction motion
is under submission from the calculation of
the one-year period of limitation.
2. Equitable Tolling
1. Statutory Tolling
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); Warren v. Garvin, 219 F.3d 111,
113 (2d Cir. 2000). To obtain the benefit of
equitable tolling, a petitioner must show: (1)
“extraordinary circumstances prevented him
from filing his petition on time”; and (2) 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 show affirmatively 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 calculating the one-year limitations
period under AEDPA, 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 toward
any period of limitation.” 28 U.S.C.
§ 2244(d)(2). Here, as respondents note, the
statute of limitations had expired by August
2009, when petitioner filed his second CPL
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. For instance, the primary
challenges to his conviction—that he is
Black and therefore not subject to the
courts’ subject matter or personal
jurisdiction, and that his indictment was
unsigned—are based on facts known or
B. Tolling of the Statute of Limitations
5
otherwise discernible even before the
conviction, and he never raised them on
direct appeal. Moreover, petitioner has not
provided any evidence that he acted with
“reasonable diligence” during the several
years delay between the expiration of the
statute of limitations and his subsequent
post-conviction motions, or that any
“extraordinary circumstances” prevented
him from filing this petition or his state
court petitions in a timely manner. Cf.
Valverde v. Stinson, 224 F.3d 129, 133–34
(2d Cir. 2000) (intentional confiscation of
prisoner’s habeas petition by corrections
officer was extraordinary circumstances).
prosecute petitioner, because it is not a
government but a corporate entity and all of
its transactions are governed by the Uniform
Commercial Code; (3) the Eleventh
Amendment conferred immunity from
prosecution upon petitioner, because all
public officials are foreign citizens; (4) no
state has a right to sue petitioner, because all
prosecutors and other judiciary personnel
are part of the judiciary and thus represent
only the courts and not a state or its
populace; (5) the only criminal prosecution
authorized by law is one conducted against
an enemy alien resident, which does not
apply to petitioner; (6) the indictment was
defective because the individual who signed
it lacked standing to do so, and any attorney
who signed it lacked first-hand knowledge
of the evidence establishing probable cause.
In short, petitioner has not presented any
grounds that warrant equitable tolling. He
also has not made a claim of actual
innocence. See Whitley v. Senkowski, 317
F.3d 223, 225 (2d Cir. 2003) (holding that it
was error to dismiss petition claiming actual
innocence, on statute of limitations grounds,
without further analysis). Even if Duff had
made a claim of actual innocence, nothing in
the petition suggests that an innocence claim
would have any merit. Accordingly, the
petition is dismissed as time-barred.
Petitioner’s frivolous claims are
predicated
on
misinterpretations
of
decisional law and statutory provisions
predating his conviction. First, petitioner
was prosecuted by the Suffolk County
District Attorney’s Office, not the federal
government. Thus, to the extent petitioner’s
claims focus on the federal government’s
authority to prosecute him in federal court,
those claims fail to state a legal basis upon
which habeas relief can be granted. Second,
Dred Scott v. Sandford, 60 U.S. 393 (1856),
was superseded by the Fourteenth
Amendment, which provides that “[a]ll
persons born or naturalized in the United
States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State in which they reside.” In
addition, New York law applies to all
persons found within the state’s borders. See
Bey v. Bailey, No. 09 Civ. 8416, 2010 WL
1531172, at *4 (S.D.N.Y. 2010) (finding
that petitioner’s claim that he could ignore
laws of New York by claiming membership
in “Moorish-American” nation were
meritless and could not be basis for habeas
relief, because that status did not enable him
C. Merits and Post-Release Issues
Although the petition is time-barred, the
Court, in an abundance of caution, shall
briefly address the merits of petitioner’s
arguments. 7 Petitioner argues that a writ
should issue because: (1) as a Black man, he
is not a United States citizen and thus not
subject to the laws of the United States; (2)
the United States lacked the authority to
7
Petitioner did not present these claims on direct or
collateral appeal in state court. However, because the
unexhausted claims are plainly meritless, the Court
denies them on the merits, notwithstanding the failure
to exhaust and lack of good cause for that failure. See
Bonner v. Lee, No. 11-CV-6171 (ENV), 2014 WL
3810115, at *2 (E.D.N.Y. Aug. 1, 2014).
6
to violate state and federal laws without
consequence). Third, venue was proper in
Suffolk County, because the grand jury
found that the offenses underlying the
indictment were conducted in Suffolk
County in violation of state law. Finally,
petitioner’s challenge to the face of the
indictment is unavailing because, as required
by CPL §§ 220.50(8) and (9), the foreman of
the grand jury that indicted petitioner and
the district attorney signed the indictment. In
any event, a challenge to the sufficiency of a
state indictment is not cognizable on habeas
review unless the indictment falls below
constitutional standards. See Davis v.
Mantello, 42 F. App’x 488, 490 (2d Cir.
2002) (“Claims of deficiencies in state grand
jury proceedings are not cognizable in
a habeas corpus proceeding in federal
court.” (citing Lopez v. Riley, 865 F.2d 30,
32
(2d
Cir.
1989))); Norwood
v.
Hanslmaier, No. 93 Civ. 3748(NG), 1997
WL 67669, at *3 (E.D.N.Y. Feb. 11,
1997) (finding that denial of defendant’s
right to testify in grand jury and lack of
foreperson’s signature on indictment did not
raise federal constitutional claims). An
indictment satisfies constitutional standards
if “‘it charges a crime [1] with sufficient
precision to inform the defendant of the
charges he must meet and [2] with enough
detail that he may plead double jeopardy in a
future prosecution based on the same set of
events.’” De Vonish v. Keane, 19 F.3d 107,
108 (2d Cir. 1994) (quoting United States v.
Stavroulakis, 952 F.2d 686, 693 (2d Cir.
1992)). Petitioner does not claim he had no
notice of the charges he had to meet or that
he faced the possibility of double jeopardy
based on the vagueness of the accusatory
instrument. Accordingly, the Court denies
the petition on the independent ground that
the asserted claims are meritless.8
8
III. CONCLUSION
For the foregoing reasons, the Court
concludes that the petition is time-barred,
and that petitioner has demonstrated no basis
for habeas relief under 28 U.S.C. § 2254.
Therefore, the Court denies the petition for a
writ of habeas corpus. 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 this
case.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: October 20, 2014
Central Islip, NY
*
*
*
Petitioner proceeds pro se. The
Respondents are represented by
Spota, District Attorney of the
County, by Anna Oh and Macia
County
Thomas
Suffolk
Kucera,
petitioner details a series of alleged issues involving
his post-release supervision, which began after his
initial release from prison on February 5, 2010. (See
Petition ¶¶ 38–52.) The County Respondents have
not detailed or addressed these issues, and Stanford
proceeds as if any such claims are brought pursuant
to 42 U.S.C. § 1983. In any event, Duff’s argument
that the actions of the state and local authorities are
unlawful because they lacked jurisdiction over him
fails for the reasons stated supra. It also does not
appear that petitioner has exhausted his state court
remedies with respect to these post-release
supervision issues. Thus, to the extent petitioner
wishes to assert such claims on other grounds, he
must do so in a separate petition (after exhausting his
state court remedies) or, if appropriate, through an
action pursuant to 42 U.S.C. § 1983.
In the “Case History” section of the petition,
7
Assistant District Attorneys, Criminal
Courts Building, 200 Center Drive,
Riverhead, NY 11901. Sanford is
represented by Eric Schneiderman, Attorney
General of the State of New York, by Lori
Pack, 300 Motor Parkway Suite 230,
Hauppauge, NY 11788.
8
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