MacKenzie v. Capra

Filing 10

ORDER granting 6 Motion to Dismiss for Failure to State a Claim. SO ORDERED that Respondent's motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is granted, and Petitioner's application for a writ of habeas corpus is dismissed. CM to pro se petitioner. Ordered by Judge Sandra J. Feuerstein on 9/30/2015. (Florio, Lisa)

FILED

IN CLERK'S 01=
US DISTRICT Cou:i~ED N y

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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S~P ~

0 Z015

EDWARD MACKENZIE,

Petitioner,

QRDER

-against-

14-CV-5553 (SJF)

MICHAEL CAPRA,
Respondent.

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FEUERSTEIN, J.
On September II, 2014, Petitioner Edward MacKenzie ("Petitioner" or "MacKenzie")
filed a petition seeking a writ of habeas corpus in this Court challenging the second of three
convictions. This Court must address two (2) threshold issues before it may reach the merits, if
any, of Petitioner's habeas petition: (I) whether Petitioner is "in custody" under the federal
habeas statute, 28 U.S.C. § 2254, even though he has completed the sentence imposed for his
second conviction but remains incarcerated on the consecutive sentence for his third conviction;
and (2) if so, whether Petitioner has timely filed his habeas petition. This Court holds that
Petitioner is "in custody" for purposes of28 U.S.C. § 2254, but that his petition is untimely.
Accordingly, this Court grants Respondent Michael Capra's ("Respondent") motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and Petitioner's habeas petition is
dismissed.

I.

*

LONG ISLAND OFFICE

BACKGROUND
In his habeas application, MacKenzie challenges only the second of his three (3) relevant

convictions. Because all of those convictions pertain to the legal issue of whether he is "in
custody" under the federal habeas statute, however, I discuss all three (3) convictions below.

A.

The First Conviction and Sentence

On March 4, 1983, Petitioner was convicted in the County Court ofNassau County, New
York, of criminal charges and sentenced to an indeterminate prison term of five (5) to fifteen
(15) years (the "First Sentence"). The Appellate Division affirmed on April24, 1984. People v.

MacKenzie, 100 A.D.2d 944 (2d Dept. 1984). After serving the minimum sentence, Petitioner
was released on parole on August II, 1988. [Dkt. Entry ("DE") 6, Resp't's Ex. 6, Sent'g Tr., at
50].
B.

The Second Conviction and Sentence

On October 16, 1989, while on parole from his First Conviction, Petitioner was arrested
and entered a plea of guilty to one (I) count of Criminal Possession of a Controlled Substance in
the Fifth Degree. [DE I, Pet'r's Ex. A(B), Waiver oflndictment (Oct. 16, 1989)]. On
November 27, 1989, Petitioner was sentenced as a prior felony offender in Nassau County court
to an indeterminate prison term of twenty (20) to forty (40) months (the "Second Sentence").
[DE I, Pet'r's Ex. A( C), Sent'g Tr., at 2, 4]. Petitioner did not appeal from that judgment. After
serving thirty-two (32) months of his sentence, Petitioner was released on parole on February 5,
1992. See Resp't's Ex. 6, Sent'g Tr., at 18, 50.

C.

The Third Conviction and Sentence

On August 5, 1992, while on parole from his Second Conviction, Petitioner forced his
way into a car in Nassau County, held the driver of the car hostage, and drove the car into
Manhattan to purchase drugs. See id. at 28-29. Following a jury trial, Petitioner was found

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guilty of Kidnapping in the Second Degree, Robbery in the Third Degree, and Unauthorized Use
of a Vehicle in the First Degree (the "Third Sentence").'
On March 16, 1994, Petitioner was sentenced in Nassau County court as a persistent
felony offender to an indeterminate prison term of twenty-five (25) years to life on each of the
three (3) convictions to be served concurrently with each other but consecutively with the
Second Sentence (the "Third Sentence")? Resp't's Ex. 6, Sent'g Tr., at 22, 49-53. The
Appellate Division later affirmed the trial court judgment. People v. MacKenzie, 242 A.D.2d
739, 739 (2d Dept. 1997).
II.

DISCUSSION
A petitioner in custody pursuant to a state court judgment may apply to a district court for

a writ of habeas corpus on the ground that he is in custody in violation of federal law. 28 U.S.C.
§ 2254. The district court "shall entertain an application for a writ of habeas corpus in behalf of

a person in custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.

1

Petitioner also separately pled guilty in Queens County court to Criminal Possession of a Controlled Substance in
the Fourth Degree for possessing narcotics after he drove the car into Manhattan. See Resp't's Ex. 6, Sent'g Tr., at
29, 50. On May 18, 1993, tbe Queens County court sentenced him to three (3) to six (6) years of imprisonment for
that narcotics possession. See id at 53.
2

During Petitioner's sentencing, the Nassau County court counted Petitioner's conviction in the Queens County
court as a separate conviction. See id. As a result, the Nassau County court deemed Petitioner to have had a total of
four (4) convictions, instead oftbree (3). Id The Nassau County court tben sentenced Petitioner to "an
indeterminate sentence of imprisonment on each of the four [4] convictions for a minimum term of twenty-five (25]
years and a maximum term of life. They are all to be served concurrent with each other but consecutive to the"
sentence for Criminal Possession of a Controlled Substance in tbe Fourth Degree tbat had already been imposed by
the Queens County court. Id As discussed above. however. Petitioner committed that crime (Criminal Possession
of a Controlled Substance in tbe F ourtb Degree) while he was still on parole from his Second Sentence.
Thus, tbe Nassau County court effectively sentenced Petitioner to twenty-five (25) years to life to run
consecutively with his Second Sentence. This fact-that Petitioner's Third Sentence runs consecutively with his
Second Sentence--is significant to the legal issue ofwhetber Petitioner is "in custody" under 28 U.S. C. § 2254, as
discussed further below.

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§ 2254(a) (emphasis added). That application must be timely filed in the district court. See 28

u.s.c. § 2244(d).
In 1968, the United States Supreme Court ("Supreme Court") held that the point in time
at which to consider whether a prisoner is "in custody" under the conviction or sentence he is
seeking to attack in his habeas petition is the date on which his petition is filed. Carafas v.

LaVallee, 391 U.S. 234,238 (1968). On that same day in 1968, the Supreme Court also held that
a petitioner serving consecutive state sentences may seek habeas relief on sentences that he has
not yet begun to serve, because the petitioner is "'in custody' under the aggregate of the
consecutive sentences imposed on [him]." Peyton v. Rowe, 391 U.S. 54,64 (1968). The
Supreme Court explained that the petitioner is deemed to be '"in custody in violation of the
Constitution' if any consecutive sentence [he is] scheduled to serve was imposed as the result of
a deprivation of constitutional rights." !d. at 64-65.
In this case, Petitioner began serving his First Sentence on March 4, 1983 and was
paroled on August II, 1988. Resp't's Ex. 6, Sent'g Tr., at 50. On September I, 1989, while on
parole from his First Sentence, Petitioner committed the crime that led to his Second Sentence.
On November 27, 1989, the Nassau County court sentenced Petitioner to twenty (20) to forty
(40) months of imprisonment on his Second Sentence. Pet'r's Ex. A(C), Sent'g Tr., at 2, 4.
After serving part of that Sentence, Petitioner was paroled on February 5, 1992. See Resp't's Ex.
6, Sent'g Tr., at 50. While on parole, Petitioner committed the crimes that led to his narcotics
conviction in Queens County court and his Third Sentence in Nassau County court. See id. at
28-29, 50. On May 18, 1993, the Queens County court sentenced Petitioner to three (3) to six (6)
years of imprisonment. See id at 53. On May 16, 1994, the Nassau County court pronounced
Petitioner a persistent felony offender and sentenced him to twenty-five (25) years to life on each

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ofhis prior convictions to be served consecutively with his Queens County sentence. See id at
22, 49-53. More than two (2) decades later, on September II, 2014, Petitioner applied for a writ
of habeas corpus attacking his expired Second Sentence while serving his Third Sentence in New
York state prison.
Petitioner has thus been either imprisoned or on parole continuously since March 4, 1983,
and he has been "in custody" on his consecutive state sentences. See Garlotte v. Fordice, 515
U.S. 39,41 (1995) (holding prisoner "in custody" on consecutive sentences because those
sentences are treated as one "continuous stream" of sentences). Specifically, Petitioner was "in
custody" while he was on parole during his First and Second Sentences. See Jones v.

Cunningham, 371 U.S. 236 (1963) (holding prisoner on parole remained "in custody''). He then
committed the crimes resulting in his Second and Third Sentences while still paroled on his First
and Second Sentences, respectively, and accordingly received consecutive sentences. Cf.

Maleng v. Cook, 490 U.S. 488,492 (1989) (holding prisoner was not "in custody" because he
was not serving consecutive state sentences). He subsequently filed his habeas petition attacking
the Second Sentence while he was incarcerated on the Third Sentence. See Carafas v. LaVallee,
391 U.S. 234,238 (1968) (declaring point in time at which to determine whether prisoner is "in
custody" is at time of filing of habeas petition). Petitioner is therefore "in custody" under his
Second Sentence despite the fact that the Second Sentence has already expired. See Garlotte,
515 U.S. at 41. Accordingly, this Court holds that Petitioner is "in custody" under the Second
Sentence for purposes of federal habeas relief pursuant to Section 2254.
In 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or the
"Act") introduced for the first time a statute of limitations for filing habeas petitions. AEDPA,
Pub.L. No. 104-132, 110 Stat. 1214 (effective Apr. 24, 1996). With certain qualifications, that

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limitations period is one (I) year from the date on which the petitioner's conviction becomes
fmal. !d. at§ 101, Pub.L. No. 104-132, § 101, 110 Stat. 1214, 1217 (codified at 28 U.S.C.
§ 2244(d)); see 28 U.S.C. § 2244(d)(l)(A).
The AEDPA, however, is silent regarding the length of time that should be permitted for
filing a habeas petition challenging a conviction that became final before the effective date of the
Act. See Ross v. Artuz, 150 F.3d 97, 100 (2d Cir. 1998). This circuit, along with other circuits,
has held that where a petitioner's conviction became final prior to the AEDPA's effective date,
the petitioner is allowed a one (1) year "grace period" from the Act's effective date to file a
timely habeas petition challenging that conviction or sentence under Section 2254. !d. at 103
(calculating that "the last day for instituting the action is the anniversary date of the start of the
limitations period, or April 24, 1997"). Thus, the deadline for filing a habeas petition attacking a
pre-April 24, 1996 conviction is April 24, 1997.
In this case, Petitioner was sentenced on November 27, 1989. Pet'r's Ex. A( C), Sent'g
Tr., at 2, 4. Because he did not appeal from that judgment of conviction, the conviction became
final thirty (30) days later on December 27, 1989. Petitioner did not file his application for a writ
of habeas corpus until September 11, 2014-more than twenty-four (24) years after his
conviction became final, and long after the one (1) year "grace period" for pre-AEDPA
convictions expired on April24, 1997.3 Petitioner's habeas petition is thus untimely and

3 Petitioner filed several state law collateral motions beginning in 2006. [DE I, Pet'r's Pet. for Writ of Habeas
Corpus ("Pet'r's Br."), at 4-5]. Those post-conviction motions, however, were all filed afier the one (I) year "grace
period" had expired on April24, 1997. The post-conviction motions therefore do not statutorily toll the limitations
period for filing Petitioner's habeas application. See Sorce v. Artuz, 73 F. Supp. 2d 292,297 (E.D.N.Y. 1999)
("Because this [state post-conviction] filing did not take place until afier the running of the one [I] year AEDPA
statute ... , it is of no consequence to the timeliness issue."); 28 U.S.C. § 2244(d)(2) (providing for statutory tolling
under limited circumstances). The deadline for Petitioner's habeas petition thus remains April24, 1997.

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procedurally barred.'
Petitioner argues, however, that his habeas petition is timely under 28 U .S.C.
§ 2244(d)( I )(D) ("Subsection D"). That statutory provision mandates that, under certain
circumstances, the one (I) year limitations period for post-AEDPA convictions may be extended
to run from 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)(l)(D). Petitioner
seeks to apply Subsection D to his pre-AEDPA Second Sentence to render his habeas petition
timely.
This circuit has never held that Subsection D, enacted under the AEDPA, may not apply
to habeas petitions challenging pre-AEDPA convictions. Indeed, as discussed above, the Second
Circuit has held that the one (I) year limitations period of a related subsection, 28 U.S.C.
§ 2244(d)( I )(A), that applies strictly to only post-AEDPA convictions, must also be effectively
applied to pre-AEDPA convictions. See Ross v. Artuz, 150 F.3d 97, 100-01 (2d Cir. 1998); see

also Rodriguez v. Artuz, 990 F. Supp. 275,277 (S.D.N.Y. 1998) (Sotomayor, J.) (reasoning that a
prisoner with a pre-AEDPA conviction cannot be placed "in a better position" than a prisoner
with a post-AEDPA conviction) (emphasis in original). The Second Circuit has also expressly
held that the statutory tolling provision in 28 U.S.C. § 2244(d)(2), applicable on its face to only
post-AEDPA convictions, must be extended to pre-AEDPA convictions as well. See Bennett v.

4
Even ifPetitioner's habeas petition is somehow deemed timely under Ross's interpretation of the AEDPA for preAEDP A convictions, the petition may still be dismissed as being unduly delayed under Rule 9( a) of the Rules
Governing Section 2254 Cases in the United States District Court ("Habeas Rule 9(a)"). See Ross v. Artuz, 150 F.3d
97, 103 (2d Cir. 1998) ("We note that nothing in this opinion retreats from our observation in [Peterson v. Demskie,
107 F.3d 92 (2d Cir. 1997) (modified on other grounds by Ross, 150 F.3d 97 (2d Cir. 1998))) that the fact that a
petition is not time-barred by AEDPA does not, in appropriate factual circumstances, preclude a dismissal of the
petition as unduly delayed pursuant to Habeas Rule 9(a).").
In this case, Petitioner's conviction became final on December 27, 1989, and the one (1) year "grace
period" expired on April24, 1997. Petitioned filed his habeas petition in this Court only much later on September
11, 2014. Because I conclude that Petitioner's application is untimely, I do not express any opinion on whether the
application would also have been dismissed as being unduly delayed under Habeas Rule 9(a).

7

Artuz, !99 F.3d 116, 119 (2d Cir. 1999), aff'd, 53! U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213
(2000) (affirming the order that Section 2244(d)(2) also apply to the one (I) year "grace period"
for pre-AEDPA convictions). That line of reasoning suggests that where circumstances may
render petitions attacking post-AEDPA convictions timely under Subsection D, those same
circumstances must similarly trigger the application of Subsection D to petitions attacking preAEDPA convictions and render those latter petitions timely as well.
Petitioner argues that although no notice of appeal was filed from his Second Sentence,
he instructed his attorney to file an appeal on Petitioner's behalf. Pet'r's Br.

at~~

6, 7, 9. After

Petitioner was imprisoned on the Second Sentence, he ''went to the law library and inquired as to
how long it usually takes for an appeal and was informed that it could take 2-3 years." !d.

at~

14. The Second Sentence was for one-and-two-third(!%) years to three-and-one-third (3'h)
years. Pet'r's Ex. A(C), Sent'g Tr., at 2, 4. Petitioner claims that when he "never heard anything
on his appeal by the time he was released from serving his sentence ... he naturally assumed that
his appeal had been denied." Pet'r's Br.

at~

15. He claims that he learned that no notice of

appeal had been filed on October 10,2013, when "one of the law library clerks pointed out to
him that there was no indication from the record that his attorney ever filed a notice of appeal."
Pet'r's Ex. A, Aff.,

at~

9. Petitioner, who is incarcerated, then mailed his habeas petition

challenging the Second Sentence on September 9, 2014. Pet'r's Br. at 14. In his habeas petition,
he asks this Court to "grant the following relief: That this Writ of Habeas Corpus be granted
unless the lower court reinstates Petitioner's right to appeal within thirty (30] days." Jd. 5
Petitioner has failed to show that he could not have discovered that no appeal was filed
from his Second Sentence anytime between April24, 1997 (the deadline of the one (I) year

5

This Court offers no opinion on the merits ofPetitioner's habeas claim.

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"grace period" for petitions challenging pre-AEDPA convictions) and October 10,2013 (the date
when he allegedly learned that no appeal had ever been filed). "The status of an appeal is a
matter of public record about which inquiry can be made." Rodney v. Breslin, No. 07-CV-4519,
2008 WL 2331455, at *3 (E.D.N.Y. June 3, 2008). A "duly diligent person in [the] petitioner's
circumstances would have inquired and discovered that no appeal had been filed, well before the
[one (1) year] grace period ended." !d.; see Morton v. Ercole, No. 08-CV-252, 2010 WL
890036, at *3 (S.D.N.Y. Mar. 10, 2010) (holding that easy access to law library and public
docket information rendered seven (7) year delay in investigating status of appeal objectively
unreasonable). Therefore, Petitioner cannot avail himself of the provisions of28 U.S.C.
§ 2244(d)(I)(D), and his habeas petition was due by April24, 1997.6 Accordingly, his
application for a writ of habeas corpus is untimely and procedurally barred.

III.

CONCLUSION
For the reasons stated above, Respondent's motion to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure is granted, and Petitioner's application for a writ of habeas
corpus is dismissed.

SO ORDERED.
sf Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: September 30, 2015
Central Islip, New York
6

Although Petitioner has not raised the principle of equitable tolling before this Court, he is nevertheless not entitled
to the protections of that principle. Equitable tolling requires a demonstration of"rare and exceptional
circumstances" to toll the statute oflimitations period. See Hernandez v. New York, No. 99-CV-8657, 2003 WL
22127079, at *3 (S.D.N.Y. Sept. 15, 2003) (quoting Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001)). A
petitioner desiring application of the equitable tolling principle must show that "extraordinary circumstances"
prevented him from filing his petition within the one (I) year limitations period, and that he acted with "reasonable
diligence" during the period that he seeks to toll. ld Here, Petitioner has not demonstrated any diligence to
discover the status of his presumed appeal from his Second Sentence at any time between November 27, 1989 and
April 24, 1997. The equitable tolling doctrine thus does not apply to toll the limitations period for filing Petitioner's
habeas petition.

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