Banner v. Griffin
ORDER granting 5 Motion to Dismiss for Failure to State a Claim For the reasons set forth herein, respondent's motion to dismiss is granted in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/31/2017. (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
No 16-CV-3675 (JFB)
DAMON C. BANNER,
MEMORANDUM AND ORDER
January 31, 2017
JOSEPH F. BIANCO, District Judge:
On June 24, 2016, Damon Banner (“petitioner” or “Banner”) petitioned this Court for
a writ of habeas corpus, pursuant to 28 U.S.C.
§§ 2241 and 2254, challenging his convictions pursuant to his guilty plea in New York
State Court for attempted second-degree
murder and third-degree arson. (Pet. for Habeas Corpus (“Pet.”), ECF No. 1.) The court
initially sentenced him to a determinate term
of sixteen years’ imprisonment on the attempted murder conviction and a determinate
term of three-and-a-half years’ imprisonment
on the arson conviction, to be served concurrently. On realizing that New York law does
not authorize determinate terms on third-degree arson convictions, the court resentenced
petitioner to an indeterminate term of one to
three years on that conviction, still to be
served concurrently with his sentence for second-degree attempted murder.
In this habeas petition, Banner challenges
his conviction on the following grounds: (1)
the police violated his Fourth Amendment
right to be free from unreasonable searches
and seizures; (2) he was denied a fair suppression hearing because his counsel was ineffective; (3) the trial court lacked jurisdiction to
accept a plea on an offense that was not
charged in the indictment; and (4) he was improperly resentenced in abstentia. He also
incorporates by reference claims he raised in
his application for a writ of error coram nobis
with the New York Supreme Court, Appellate Division. Respondent Thomas Griffin,
Superintendent of the Green Haven Correctional Facility, has moved to dismiss the petition, arguing that it is untimely. For the reasons that follow, this Court grants respondent’s motion to dismiss.
The Court has adduced the following
facts from the petition and the Affidavit in
Support of Respondent’s Motion to Dismiss
the Petition for a Writ of Habeas Corpus.
(ECF No. 5 at i–x (“Resp.’s Aff.”).)
years’ imprisonment, to be served concurrently with his second-degree murder sentence. (Id. ¶ 12.) Petitioner was not present
at the September 28 hearing. (See Pet. at 5.)
On December 5, 2011, a Nassau County
grand jury indicted petitioner on one count of
attempted murder in the first degree, one
count of criminal use of a firearm in the second degree, one count of menacing a police
officer, one count of conspiracy in the fourth
degree, two counts of criminal possession of
a weapon in the second degree, one count of
criminal possession of a weapon in the fourth
degree, three counts of criminal possession of
stolen property in the fifth degree, and thirteen counts of criminal possession of stolen
property in the fifth degree, all in connection
with a shooting and police chase that occurred on November 7, 2011. (Resp.’s Aff.
¶ 8.) Later, on February 15, 2012, the grand
jury indicted him on one count of third-degree arson in connection with the burning of
a rented vehicle on October 26, 2011. (Id.)
On November 11, 2013, petitioner collaterally attacked his conviction by filing a New
York Criminal Procedure Law (“C.P.L.”)
§ 440.10 motion to vacate the judgment of
conviction on the grounds that his guilty plea
was involuntary and his allocution insufficient. (Pet. at 3; Resp.’s Aff. ¶ 13.) The New
York Supreme Court denied the motion on
January 30, 2014. (Resp.’s Aff. ¶ 13.) Petitioner sought leave to appeal this decision,
but the Second Department denied him leave
to appeal on July 3, 2014. (Id.) It also denied
his subsequent motion for reargument on December 11, 2014. (Id.) He did not seek leave
to appeal the decision on his reargument motion to the New York Court of Appeals. (See
The case went to trial, but, during a recess, petitioner accepted a plea offer, pleading guilty to one count of attempted seconddegree murder and one count of third-degree
arson. (Id. ¶¶ 9–10; Pet. at 1.) When he
pleaded guilty, petitioner acknowledged that
he committed the charged offenses (Resp.’s
Aff. ¶ 10; State Court Record, Plea Minutes,
ECF No. 6-29 (“Plea Minutes”), at 6–7), and,
at his sentencing hearing on August 8, 2012,
the court sentenced him to a determinate term
of sixteen years’ imprisonment on the attempted murder conviction and a determinate
term of three-and-a-half years’ imprisonment
on the arson conviction, to be served concurrently. (Resp.’s Aff. ¶ 11.) The court later
realized that determinate terms are not authorized under New York law for arson convictions and, therefore, on September 28,
2012, resentenced petitioner on that conviction to an indeterminate term of one to three
Petitioner also filed a direct appeal of his
conviction with the Second Department, 1 arguing that the guilty plea was defective because he did not admit to the essential element of intent to kill and the court did not
question him about his mental health. (Pet. at
2; Resp.’s Aff. ¶ 14.) Petitioner also filed two
supplemental briefs—once through counsel
and once pro se—arguing that the resentencing was defective because only counsel was
present. (Resp.’s Aff. ¶ 14.) The Second Department rejected the supplemental briefs and
subsequently affirmed his convictions on November 5, 2014. See People v. Banner, 122
A.D.3d 641 (2d Dept. 2014). Petitioner did
not seek leave to appeal this decision to the
New York Court of Appeals. (See Pet. at 2;
Resp.’s Aff. ¶ 15.)
Although unclear from the parties’ moving papers,
the timing of this filing is immaterial to this Court’s
decision on respondent’s motion to dismiss.
2016. (ECF No. 7.) The Court has fully considered the parties’ submissions.
On January 4, 2016, petitioner filed two
collateral attacks on his convictions in the
New York Supreme Court. (Id. ¶ 16; Pet. at
3.) In the first, filed as a motion to vacate the
judgment under C.P.L. § 440.10, petitioner
asserted that the indictment and guilty plea
were defective, he received ineffective assistance of counsel, and the court erred at his
sentencing and resentencing. (Resp.’s Aff.
¶ 17.) The court denied this motion on March
17, 2016, and the Second Department denied
him leave to appeal on July 22, 2016. (Id.)
In the second challenge, filed as a coram
nobis application under C.P.L. § 440.30 before the Second Department, petitioner
claimed he received ineffective assistance of
appellate counsel on direct appeal, arguing
that counsel failed to argue that (1) the plea
was defective because murder in the second
degree is not a lesser included offense of murder in the first degree; (2) the resentencing
was defective because petitioner was absent;
(3) petitioner did not receive a meaningful
opportunity to be heard at his first sentencing;
and (4) the police violated petitioner’s Fourth
Amendment rights during their investigation.
(Id. ¶ 18; Pet. at 3.) Petitioner further contends that appellate counsel was ineffective
for failing to seek leave to appeal to the Court
of Appeals. (Pet. at 4; Resp.’s Aff. ¶ 18.) The
Second department denied petitioner’s coram
nobis application on May 11, 2016. See People v. Banner, 139 AD.3d 869 (2d Dept.
2016). Leave to appeal this denial to the
Court of Appeals was denied on August 5,
2016. See People v. Banner, 28 N.Y.3d 926
1. Timeliness of the Petition
On April 24, 1996, Congress enacted the
Antiterrorism and Effective Death Penalty
Act (“AEDPA”), Pub. L. No 104-132, 110
Stat. 1214, which, among other things,
amended 28 U.S.C. § 2244(d)(1) to provide a
one-year limitations period for filing a petition for a writ of habeas corpus by a person
in state custody pursuant to a state court judgment. The general rule is that the limitations
period will begin to run on “the date on which
the judgment became final by the conclusion
of direct review or the expiration of the time
for seeking such review.”
§ 2244(d)(1)(A). The statute also provides
three exceptions under which the one-year
limitations period will commence on a later
(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
(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
B. Procedural History
Petitioner filed his petition for a writ of
habeas corpus on June 24, 2016. (ECF No.
1.) Respondent filed his motion to dismiss on
August 2, 2016, arguing that the petition is
untimely. (ECF No. 5.) Petitioner filed a reply in opposition to the motion on August 22,
(D) the date on which the factual predicate of the claim or
claims could have been discovered through the exercise
of due diligence.
his habeas petition beginning December 10,
The AEDPA, however, also provides for
tolling of the limitations period when “a
properly filed application for State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Here, the trial
court had denied petitioner’s collateral challenge to his conviction under C.P.L.
§ 440.10, and the Second Department had denied him leave to appeal that decision. On
December 10, 2014, when petitioner’s time
to seek leave to appeal his conviction directly
to the Court of Appeals expired, his motion
for reargument before the Second Department on his collateral challenge was still
pending. Therefore, the limitations period
was tolled until the Second Department ruled
on his that motion on December 11, 2014. As
such, petitioner had until December 11,
2015—one year from the date the tolling period ended—to file his habeas petition.
§§ 2244(d)(1)(B)–(D). With respect to the final exception, the “burden of demonstrating
due diligence rests with petitioner.” Shabazz
v. Filion, 402 F. App’x 629, 630 (2d Cir.
2010). Additionally, evidence is not newly
discovered simply because petitioner did not
possess it until recently. Rather, if the evidence could have been obtained earlier, “the
date when the evidence was actually obtained
has no effect on the AEDPA limitations period.”
Duamutef v. Mazzuca, No.
01CIV2553WHPGWG, 2002 WL 413812, at
*9 (S.D.N.Y. Mar. 15, 2002).
Here, the Appellate Division affirmed petitioner’s conviction on November 5, 2014.
At that point, he had thirty days to seek leave
to appeal from the New York Court of Appeals. See C.P.L. § 460.10(1)(a). That period
expired on December 10, 2014, at which
point his convictions became final. See 28
U.S.C. § 2244(d)(1)(A); see, e.g., Davis v.
Racette, 99 F. Supp. 3d 379, 385 (E.D.N.Y.
2015). Accordingly, under § 2244(d)(1)(A)
of the AEDPA, petitioner had one year to file
His petition, filed over six months after
the deadline, is plainly untimely unless one of
the exceptions enumerated in §§ 2244(d)(1)
applies. 2 An examination of petitioner’s
Petitioner did not file his other collateral challenges
until January 4, 2016, well after the limitations period
expired, and so those challenges do not provide statutory tolling under 28 U.S.C. § 2244(d)(2). Furthermore, petitioner’s argument that he had “one year and
ninety days to pursue any type of collateral attack”
misunderstands the law. Where courts have indicated
that a petitioner had “one year and ninety days” to file
a habeas petition, they have calculated that number
“from the date of denial of [the petitioner’s] appeal to
the New York State Court of Appeals.” Delatorres v.
Lempke, No. 08-CV-0183, 2011 WL 1198565, at *2
(W.D.N.Y. Mar. 29, 2011); see also, e.g., Alke v.
Artus, No. 12-CV-5977 RRM, 2013 WL 4700828, at
*2 n.3 (E.D.N.Y. Sept. 1, 2013); Romero v. Napoli,
No. 08 CIV. 8380(CM)(HBP, 2009 WL 413134, at *1
(S.D.N.Y. Feb. 18, 2009). Thus, this number reflects
both the AEDPA’s one-year limitations period and the
ninety-day period that petitioners have to file a petition
for a writ of certiorari before the U.S. Supreme Court.
See Smith v. Lord, 230 F. Supp. 2d 288, 291 (E.D.N.Y.
2002) (“A prisoner’s judgment of conviction becomes
final under Section 2254 of the AEDPA when the
United States Supreme Court denies the prisoner’s
petition for a writ of certiorari or the time for seeking
such a writ has expired, which is 90 days.”). By contrast, where, as here, a petitioner does not seek relief
from the state’s highest court, the limitations period
begins to run when the time to seek such state relief
expires. See 28 U.S.C. § 2244(d)(1)(A); see, e.g., Davis, 99 F. Supp. 3d at 385 (“As a result of Petitioner’s
failure to timely file a notice of appeal within thirty
days as required by section 460.10 of the New York
CPL, his judgment of conviction became final on
March 28, 1996, when the thirty day period for seeking
v. Castillo, 8 N.Y.3d 959, 961 (2007) (holding that a guilty plea to a charge not included
in the indictment and not constituting a lesser
included offense of any count in the indictment is jurisdictionally defective); United
States v. Agard, 77 F.3d 22, 24 (2d Cir. 1996)
(discussing right to be present at sentencing);
Claudio v. Scully, 982 F.2d 798, 803 (2d Cir.
1992) (holding that a petitioner was denied
effective assistance of appellate counsel).
claims, however, reveals that no such exceptions apply. Petitioner does not argue (nor is
there any basis in the record to support an argument) that there was any legal impediment
barring him from filing his petition, that there
has been any intervening and applicable establishment of a constitutional right to which
he would be retroactively entitled, or that the
factual predicate for his claims was not discoverable through the exercise of due diligence in the year prior to the filing of his habeas claim.
The third and final possible justification
for the belated filing of his petition is that the
factual predicates for his claims were not discoverable with an exercise of reasonable diligence until the year prior to the filing of the
habeas petition. Petitioner does not attempt
to make this argument, and failing to assert
the claim can alone be grounds to find the exception inapplicable. See, e.g., Goodwin v.
Pallito, No. 2:14 CV 110 (WKS), 2015 WL
778613, at *4 (D. Vt. Feb. 24, 2015) (concluding that § 2244(d)(1)(D) would not apply
where petitioner “d[id] not assert that he observed the alleged ineffective conduct only
recently”). In any event, the factual predicate
for all of petitioner’s claims were discoverable before the statute of limitations began to
run on December 14, 2014. Specifically, he
knew of the facts constituting the bases (1)
for his Fourth Amendment claim the day he
was arrested, (2) for his ineffective assistance
of trial counsel claim at the time of the suppression hearing, (3) for his jurisdictional
claims on the day he pleaded guilty, (4) for
his resentencing claims when he was resentenced, and (5) for his ineffective assistance
of appellate counsel claims when counsel
filed his direct appeal and failed to seek leave
to appeal the Second Department’s decision
on direct appeal. All of these instances occurred before December 11, 2014.
Petitioner raises the following claims: (1)
the police lacked probable cause or reasonable suspicion to believe he committed the offenses for which he was arrested; (2) his
counsel was ineffective at the suppression
hearing; (3) the trial court lacked jurisdiction
to accept the plea on a crime not charged in
the indictment and not constituting a lesser
included offense; (4) his resentencing was
improper because he was absent; and (5) appellate counsel was ineffective because he
failed to raise these arguments and failed to
seek leave to appeal to the Court of Appeals.
(See Pet. at 3–5.) None of these arguments,
however, implicates any of the exceptions to
the general rule that the one-year limitations
period runs from the date the judgment becomes final.
First, petitioner does not identify any legal bar that prevented him from seeking habeas relief, and, thus, Section 2241(d)(1)(B)
plainly does not apply. Second, petitioner
does not identify a new constitutional right
that would operate retroactively to provide
him relief. On the contrary, the rights he
claims were violated were established well
before his direct appeal of his conviction to
the Second Department. See United States v.
Fisher, 702 F.2d 372, 375 (2d Cir. 1983)
(probable cause required to justify arrest);
Strickland v. Washington, 466 U.S. 668, 686
(1984) (“[T]he right to counsel is the right to
the effective assistance of counsel.”); People
Accordingly, because petitioner’s claims
were not filed within a year after his judgment of conviction became final and none of
the grounds that could trigger the running of
egregious as to qualify as an “exceptional circumstance” warranting relief. The Second
Circuit has indicated that “a garden variety
claim of excusable neglect . . . does not warrant equitable tolling.” Rivas v. Fischer, 687
F.3d 514, 538 (2d Cir. 2012) (holding that petitioner did not state an “exceptional circumstance” warranting equitable tolling where he
claimed ineffective assistance of counsel as
the reason for the delay); see also Davis v.
Bradt, No. 10-CV-3587, 2010 WL 3943450,
at *2 (E.D.N.Y. Oct. 6, 2010); Thomas v.
Donnelly, No. 10 CIV. 3922 LTS AJP, 2010
WL 4628009, at *4 (S.D.N.Y. Nov. 16,
2010), report and recommendation adopted
as modified, No. 10 CIV. 3922 LTS AJP,
2011 WL 4448948 (S.D.N.Y. Sept. 26,
2011). Petitioner has not met his burden in
showing that his appellate attorney’s actions
rise above the level of “excusable neglect.”
Rivas, 687 F.3d at 538. For instance, he has
not alleged that his attorney “never spoke to
or met [him] . . . made no effort to locate [petitioner] . . . failed to keep [petitioner] reasonably informed about the status of the case [or]
failed to explain the matter to the extent reasonably necessary to permit [petitioner] to
make informed decisions regarding the representation.” Baldayaque v. United States, 338
F.3d 145, 152 (2d Cir. 2003) (holding that petitioner adequately stated attorney incompetence as a ground for equitable tolling) (some
brackets omitted). Instead, he has merely asserted that his attorney was incompetent because he failed to seek leave to appeal the
Second Department’s decision affirming his
conviction on direct appeal to the New York
Court of Appeals. With no additional information, this court cannot conclude from this
simple assertion that an “extraordinary circumstance” exists warranting equitable tolling.
the limitations period at a later date apply, petitioner’s claim is untimely.
2. Equitable 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 v. McGinnis, 208
F.3d 13, 17 (2d Cir. 2000); 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.
Petitioner seeks equitable tolling on the
ground that he has diligently been pursuing
his state court remedies by filing his petition
for a writ of error coram nobis under C.P.L.
440.30 and his C.P.L. 440.10 motion to vacate, both filed on January 4, 2016. (Pet. at
5.) He also claims actual innocence of the
charges to which he pled guilty. (Id.)
Petitioner has not satisfied either prong of
the test for equitable tolling. First, he has not
explicitly identified what caused him to delay
filing his habeas petition until after the expiration of the limitations period on December
11, 2015. Thus, this court is incapable of determining whether “extraordinary circumstances” excused this late filing. Furthermore, to the extent he seeks to equitably toll
the limitations period on the basis of ineffective assistance of appellate counsel, he has
not established that the assistance was so
In any event, petitioner has not shown
that he acted “with reasonable diligence” during the limitations period. Smith, 208 F.3d at
17. Specifically, petitioner does not explain
why he took no action to pursue state remedies from the time his motion for reargument
was denied on December 11, 2014 until the
time he filed his two collateral challenges in
state court on January 4, 2016. Nor does he
explain why he did not file a habeas petition
during this time. Thus, he has failed to prove
that he “acted with reasonable diligence
throughout the period he seeks to toll.”
Smith, 208 F.3d at 17; see also Pace, 544 U.S.
at 418 (burden on petitioner to show entitlement to equitable tolling).
considered in connection with his present
claim that he is actually innocent.”). Thus,
petitioner has not shown that his failure to
comply with the one-year statute of limitations should be excused on the grounds of actual innocence.
Consequently, the Court concludes that
petitioner is not entitled to equitable tolling.
For the reasons stated above, respondents’ motion to dismiss is granted in its entirety.
3. Actual Innocence
JOSEPH F. BIANCO
United States District Judge
Finally, petitioner asserts he is entitled to
an exception to the one-year statute of limitations because he is actually innocent of the
offenses to which he pleaded guilty. It is true
that “a credible showing of actual innocence
may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief.” McQuiggin v. Perkins, 133 S. Ct. 1924,
1931 (2013). To be entitled to relief on the
grounds of actual innocence, however, a petitioner’s claim “must be supported by new
reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that
was not presented at trial.” Rivas, 687 F.3d
at 541. Petitioner’s bald, unsupported assertion of innocence plainly does not qualify,
see, e.g., Gibson v. State of N.Y., No. 15-CV6335 (KAM), 2016 WL 614673, at *3
(E.D.N.Y. Feb. 16, 2016); Smalls v. Lee, No.
12CV2083KMKLMS, 2016 WL 5334986, at
*14 (S.D.N.Y. Sept. 22, 2016), especially
given his admission to the charged crimes at
his sentencing hearing (Resp.’s Aff. ¶ 10;
Plea Minutes at 6–7), see Bower v. Walsh,
703 F. Supp. 2d 204, 228 (E.D.N.Y. 2010)
(“[T]he fact that [a habeas petitioner] admitted perpetrating the crime under oath can be
January 31, 2017
Central Islip, NY
Petitioner is proceeding pro se. Respondent
is represented by Cristin Connell and Monica
Leiter, Assistant District Attorneys, on behalf
of Madeline Singas, District Attorney, Nassau County District Attorney’s Office, 262
Old Country Road, Mineola, NY 11501.
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