Gillespie v. Kaplan

Filing 15

MEMORANDUM-DECISION AND ORDER: ORDERED that the Order and Report-Recommendation (Dkt. No. 13 ) is accepted and adopted in its entirety. ORDERED that the Petition (Dkt. No. 1) is DENIED in its entirety and DISMISSED. ORDERED that no certificate of appealability shall be issued. Signed by Senior Judge Norman A. Mordue on 9/30/15. {order served via regular mail on petitioner}(nas)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK gggggggggggggggggggggggggggggggggggggggggggggggggggggggg TALLULAH GILLESPIE, Petitioner, -v- 9:12-CV-1276 (NAM/RFT) SABINA KAPLAN, Respondent. gggggggggggggggggggggggggggggggggggggggggggggggggggggggg APPEARANCES: N Tallullah Gillespie 06-G-1084 Bedford Hills Correctional Facility 247 Harris Road Bedford Hills, NY 10507 Petitioner, pro se A Hon. Eric T. Schneiderman, Attorney General of the State of New York Joanna R. Hershey, Esq., Assistant United States Attorney 120 Broadway New York, New York 120271 Attorney for Respondent Hon. Norman A. Mordue, Senior District Judge: MEMORANDUM-DECISION AND ORDER Petitioner Tallullah Gillespie filed her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 27, 2012. (Dkt. No. 1). In this petition, she argued that an affidavit drafted M by her mother on December 27, 20101 constitutes newly discovered evidence which negates the element of intent, proving that petitioner did not understand the nature of the charge against her when she pled guilty and would not have done so if she had this information. In a ReportRecommendation and Order dated August 24, 2015, United States Magistrate Judge Randolph F. Treece recommended that the Court deny the petition and decline to issue a certificate of 1 Her mother told petitioner the information contained in this affidavit in August 2010. appealability finding that the petition was untimely. (Dkt. No. 13). Judge Treece found that, even considered in the light most favorable to petitioner, under 28 U.S.C. § 2244(d)(1)(A), the petition was brought more than three years after the statute of limitations expired. (Dkt. No. 13 at 6). Judge Treece also considered whether the evidence described by plaintiff could be considered newly discovered evidence such that the limitations period in 2244(d)(1)(D) would apply, but determined that the evidence was not newly discovered as petitioner was aware of the facts upon N which the affidavit was based prior to her guilty plea. (See Dkt. No. 13 at 8). Petitioner objects to this Report-Recommendation and Order. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. The Court has reviewed the record, and finds that Judge Treece accurately recounted the facts and procedural history of the case and employed the proper legal A standards when analyzing the timeliness of the petition. The court notes that there is nothing in petitioner’s objection to suggest that the evidence is indeed “newly discovered” such that the limitations period in 28 U.S.C. § 2244(d)(1)(D) would apply, and that in any event, the petition was not timely. To the extent petitioner’s claim in her objection that the “law library clerks” did not instruct her properly as to the limitations period after she received her mother’s affidavit could be read to suggest that equitable tolling should apply, the Court disagrees. As an initial M matter, the evidence is not “newly discovered,” and therefore, the period of time that would need to be tolled was years before she received this alleged mistaken information from the law library clerks–when the judgment became final by the conclusion of direct review or the expiration of time for seeking such review. Moreover, courts have held that reliance on a jailhouse lawyer, or even on the mistaken advice of a licensed attorney, does not qualify as an extraordinary -2- circumstance warranting equitable tolling. See, e.g., Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000) (pro se status does not merit equitable tolling); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (stating that attorney error alone is “inadequate to create the ‘extraordinary’ circumstances equitable tolling requires”). Consequently, upon de novo review, the Court accepts and adopts the ReportRecommendation in its entirety. A certificate of appealability may only be issued “if the N applicant has made a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Since petitioner has failed to make such a showing herein, the Court declines to issue any certificate of appealability in this matter. See Hohn v. United States, 524 U.S. 236, 239-40 (1998). It is therefore A ORDERED that the Order and Report-Recommendation (Dkt. No. 13) is accepted and adopted in its entirety; and it is further ORDERED that the Petition (Dkt. No. 1) is DENIED in its entirety and DISMISSED; and it is further ORDERED that no certificate of appealability shall be issued; and it is further ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum- M Decision and Order in accordance with the Local Rules of the Northern District of New York. IT IS SO ORDERED. Date: September 30, 2015 -3-

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