Rose v. Lee

Filing 19

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 9 Report and Recommendations: The Court hereby ORDERS that the petition for a writ of habeas corpus is DENIED and DISMISSED; and the Court further ORDERS that no Certificate of A ppealability shall be issued with respect to any of Petitioner's claims; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 2/19/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
NAKIA ROSE,
Petitioner,
vs.

9:13-CV-299
(MAD/ATB)

WILLIAM LEE, Superintendent,
Green Haven Correctional Facility,
Respondent.
____________________________________________
APPEARANCES:

OF COUNSEL:

NAKIA ROSE
09-A-0768
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
120 Broadway
New York, New York 10271
Attorney for Respondent

THOMAS B. LITSKY, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Petitioner, an inmate currently in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”), at the Green Haven Correctional Facility,
filed this petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, as a pro se
litigant. See Dkt. No. 1. In his petition for writ of habeas corpus, Petitioner raises four grounds
for review: (1) Petitioner’s seizure and detention were violations of both the United States
Constitution and the New York State Constitution; (2) Petitioner was denied the effective

assistance of trial counsel under the standards required under both the United States Constitution
and the New York State Constitution; (3) Petitioner was denied due process and equal protection
of law when the trial court, in ruling on Petitioner’s motion to vacate his conviction pursuant to
N.Y. Crim. Pro. Law § 440.10, failed to require a response from the people, and that the judge’s
decision was conclusory, arbitrary and failed to address the merits of the claims; and (4)
Petitioner’s appellate counsel was ineffective because he failed to and was precluded from raising
ineffective assistance of trial counsel. See Dkt. No. 1 at 3–5.
On September 20, 2013, Magistrate Judge Baxter issued a Report and Recommendation,
recommending that Petitioner's writ of habeas corpus be denied and dismissed on the grounds that
the petition was filed outside of the one-year statute of limitations period as required under 28
U.S.C. § 2244(d). See Dkt. No. 9. On October 8, 2013, Petitioner filed his objections to
Magistrate Judge Baxter's Report and Recommendation. See Dkt. No. 12. In his objections,
Petitioner contends that his petition for writ of habeas corpus was not time-barred and argues that
his motion for the assignment of counsel should be not be dismissed because of his alleged
statutory compliance. See id. at 3–7.

II. BACKGROUND
On or about May 25, 2007, Petitioner, along with another individual, Damion Tyrell, was
arrested and charged with the robbery and assault of Michael Brown in Albany, New York. See
Dkt. No. 1 at ¶ 2. On that date, Petitioner and his co-defendant drove from New York City to
Albany, New York in order to collect a drug debt from Brown. See Dkt. No. 7-1 at 4. After
Brown informed Petitioner and Tyrell that he was unable to pay the debt because the money had
been previously stolen, at the instruction of Petitioner, Tyrell shot Brown in the leg and arm/chest
area. See id. at 5. Before fleeing Brown’s home, Petitioner and Tyrell stole over one thousand
2

dollars. See id. Based on the description Brown gave to the police, Petitioner and Tyrell were
eventually arrested and taken into custody by State Troopers Ronald Harris and Leopold Klemke
later that day. See id. at 6–7. On August 17, 2007, an Albany County Grand Jury handed down
an eight-count indictment charging Petitioner with several offenses. See id. On February 6,
2009, the New York State Supreme Court, Albany Country, issued Petitioner a judgment of
conviction. See id. at ¶ 3. Petitioner was convicted after a jury trial of one count of Assault in the
First Degree; two counts of Robbery in the First Degree; one count of Robbery in the Second
Degree; two counts of Criminal Possession of a Weapon in the Second Degree; and one count of
Criminal Possession of Stolen Property in the Fourth Degree. See id. Petitioner was thus
sentenced on February 9, 2009, to a determinate prison term of 25 years, followed by a five-year
period of post-release supervision. See id. at 9. On April 22, 2010, the New York Supreme Court
Appellate Division, Third Department, affirmed Petitioner’s conviction and sentence, and the
New York Court of Appeals denied leave to appeal on January 18, 2011. See id. at 12; People v.
Rose, 72 A.D.3d 1341 (3d Dep’t 2010), lv. denied, 16 N.Y.3d 745 (2011). Since Petitioner did
not seek Supreme Court review, 90 days later, on April 18, 2011, Petitioner’s criminal conviction
became final. On February 29, 2012, 316 days after Petitioner’s conviction became final,
Petitioner filed a motion to vacate his conviction, pursuant to N.Y. Crim. Proc. Law § 440.10.1
The trial court denied Petitioner’s section 440.10 motion to vacate on April 16, 2012, and the

Specifically, Petitioner filed a motion to vacate his conviction pursuant to N.Y. Crim.
Pro. Law § 440.10(1)(h), which states: “At any time after the entry of a judgment, the court in
which it was entered may, upon a motion of the defendant, vacate such a judgment upon the
ground that: [t]he judgment was obtained in violation of a right of the defendant under the
constitution of this state or of the United States . . ..” See N.Y. Crim. Pro. Law § 440.10(1)(h).
Petitioner alleged that his counsel at the trial and pre-trial stages of the proceedings was
ineffective because counsel failed to challenge the sufficiency of the indictment, failed to move
for a judgment to acquit, and failed to object to the prosecutor’s summation. See Dkt. No. 1 at
14–28.
1

3

Appellate Division denied leave to appeal on June 29, 2012. See Dkt. No. 12 at 4. Subsequently,
Petitioner sought leave from the New York Court of Appeals to appeal the Appellate Division’s
denial of his section 440.10 motion, which was dismissed by the Court of Appeals on September
6, 2012. See Dkt. No. 12 at 4. On October 11, 2012, Petitioner filed a coram nobis petition2 in
the Appellate Division, which the court denied on November 16, 2012. See Dkt. No. 9 at 2.
Petitioner sought leave to appeal the Appellate Division’s denial of his coram nobis petition from
the New York Court of Appeals, which the court denied on February 21, 2013. See Dkt. No. 12
at 4–5.
Having viewed all of his state court remedies as being exhausted, Petitioner filed a
petition fo a writ of habeas corpus with this Court on March 12, 2013. See id. at 5.
III. DISCUSSION3

In Petitioner’s motion for error coram nobis filed on October 11, 2011, Petitioner
contends that his “[a]ppellate counsel was ineffective according to every standard for failure to
raise [] viable issue[s].” See Dkt. No. 1 at 41. These issues included: (1) lack of evidence that
Petitioner forcibly stole property; (2) lack of evidence that Petitioner acted as an accomplice; and
(3) ineffectiveness of trial counsel. See id. at 42–45.
2

On July 17, 2014, Petitioner brought to the Court’s attention a possible conflict of
interest between Petitioner and Magistrate Judge Baxter. See Dkt. No. 15. Petitioner
subsequently filed evidence of the potential conflict of interest on August 4, 2014, in compliance
with an order from this Court dated July 21, 2014. See Dkt. No. 17. As indicated in Petitioner’s
submissions, at the time of Petitioner’s jury trial in Albany County Court in front of the
Honorable Stephen W. Herrick, Magistrate Judge Baxter was then serving as the Acting United
States Attorney. See id. From Petitioner’s submissions, there is no indication that Magistrate
Judge Baxter participated in Petitioner’s criminal case in any substantial way. Although
Magistrate Judge Baxter’s name appears on two letters sent from the United States Attorney’s
Office for the Northern District of New York, dated October 20, 2008, and December 2, 2008, the
letters are singed by then Assistant United States Attorney Richard S. Hartunian. See id. at
10–11. The letters simply indicate that the United States Attorney's Office for the Northern
District of New York would not use any testimony given by Michael J. Brown in the trial against
Petitioner in state court in a criminal proceeding against Mr. Brown. See id. The letter in no way
indicates that the United States Attorney's Office was involved in the underlying investigation
and prosecution of Petitioner in state court.
3

4

A.

AEDPA Standard of Review
The enactment of the Antiterrorism and Effective Death Penalty Act (“ADEPA”) brought

about significant new limitations on the power of a federal court to grant habeas relief to a state
prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted
in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006), cert. granted, judgment vacated and cases
remanded on other grounds by, 549 U.S. 1163 (2007), that
a federal court may award habeas corpus relief with respect to a claim
adjudicated on the merits in state court only if the adjudication
resulted in an outcome that: (1) was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States”, or (2) was
“based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”

Id. at 73 (quoting 28 U.S.C. § 2254(d)) (footnote omitted); see also DeBerry v. Portuondo, 403
F.3d 57, 66 (2d Cir. 2005) (quotation omitted); Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir.
2003) (quotation omitted).
In providing guidance concerning the application of this test, the Second Circuit has
observed that
a state court's decision is "contrary to" clearly established federal
law if it contradicts Supreme Court precedent on the application of
a legal rule, or addresses a set of facts "materially
indistinguishable" from a Supreme Court decision but nevertheless
comes to a different conclusion than the Court did. [Williams v.
Taylor, 529 U.S. 362] at 405-406, 120 S. Ct. 1495 [(2000)];
Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001). . . . [A] state

Although the Court does not believe that there is any conflict at issue in the present
matter, the Court will nevertheless conduct a de novo review of all of the issues raised in the
underlying motions, as well as Petitioner’s objections to Magistrate Judge Baxter’s Report and
Recommendation.
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court's decision is an "unreasonable application of " clearly
established federal law if the state court "identifies the correct
governing legal principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts" of the case before
it. Williams, 529 U.S. at 413, 120 S. Ct. 1495.

Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d Cir. 2007); see also Williams v. Artuz, 237 F.3d
147, 152 (2d Cir. 2001) (citing Francis S. v. Stone, 221 F. 3d 100, 108-09 (2d Cir. 2000)).
Significantly, a federal court engaged in habeas review is not charged with determining
whether a state court’s determination was merely incorrect or erroneous, but instead whether such
determination was “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2009); see
also Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001) (citation omitted). Courts have
interpreted “objectively unreasonable” in this context to mean that “some increment of
incorrectness beyond error” is required for the habeas court to grant the application. Earley v.
Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quotation omitted).
As the Second Circuit has further instructed, the necessary predicate for a federal habeas
court's deferential review is that a "petitioner's federal claim has been 'adjudicated on the merits'
by the state court." Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003) (quotation omitted). "If a
state court has not adjudicated the claim 'on the merits,'" the federal habeas court applies the preAEDPA standards, and reviews de novo the state court disposition of the petitioner's federal
claims. Id. (quoting Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001)). "[A] state court
'adjudicates' a petitioner's federal constitutional claims 'on the merits' when it (1) disposes of the
claim 'on the merits,' and (2) reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401,
410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). To determine
whether a state court has disposed of a claim on the merits, a court will consider: "(1) what the
state courts have done in similar cases; (2) whether the history of the case suggests that the state
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court was aware of any ground for not adjudicating the case on the merits; and (3) whether the
state court's opinion suggests reliance upon procedural grounds rather than a determination on the
merits." Aparicio, 269 F.3d at 93 (quoting Sellan, 261 F.3d at 314).
B.

Exhaustion
A petitioner in custody pursuant to a judgment of a state court is entitled to federal habeas

relief only if he has exhausted all available state-court remedies. See 28 U.S.C. § 2254(b)-(c). A
claim has been exhausted if it was fairly presented in the state courts, thereby giving the state the
"opportunity to pass upon and correct" alleged violations of federal rights. Duncan v. Henry, 513
U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509 (1971)). A
petitioner need not have cited "book and verse on the federal Constitution" in his claim in state
court for the claim to have been exhausted. Picard, 404 U.S. at 278 (quotation omitted). Rather,
a petitioner may have fairly presented his claim to the state courts through
(a) reliance on pertinent federal cases employing constitutional
analysis, (b) reliance on state cases employing constitutional
analysis in like fact situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right protected by the
Constitution, and (d) allegations of a pattern of facts that is well
within the mainstream of constitutional litigation.
Daye v. Attorney Gen. of the State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982).
As the Second Circuit has held, "to invoke 'one complete round of the State's established
appellate review process', a criminal defendant must first appeal his or her conviction to the
Appellate Division, and then must seek further review of that conviction by applying to the Court
of Appeals for a certificate granting leave to appeal." Smith v. Duncan, 411 F.3d 340, 345 (2d
Cir. 2005) (quoting Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005)) (internal citation
omitted). Applicants for leave to appeal must submit legal briefs and other documents to the New
York State Court of Appeals, identifying the issues upon which the application is based, and must
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focus upon identifying problems of reviewability and preservation of error. See id. (quotations
omitted).
C.

Procedural Default
Federal habeas review of a state-court conviction is prohibited if a state court rested its

judgment on a state law ground that is "independent of the federal question and adequate to
support the judgment." Coleman, 501 U.S. at 729 (noting that the federal court resolution of the
federal issue would merely be advisory where the state judgment is supported by independent and
legal state grounds) (citations omitted). "This rule applies whether the state law ground is
substantive or procedural." Id. (citation omitted). The independent and adequate state ground is
jurisdictional, thus, if the state court "explicitly invokes a state procedural bar rule as a separate
basis for decision[,]" the federal court is precluded from considering the merits of the federal
claim in a habeas petition. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989).
Instead, the federal court's scope of review is limited to the adequacy of the state law basis
to bar the claim's review. See Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) ("Our task is
not to determine whether [the state] ruling was correct, but to determine its adequacy to preclude
federal habeas review"). The Second Circuit has typically assessed the adequacy of a "state
ground of decision by examining whether the rule upon which the state court relied is firmly
established and regularly followed." Downs v. Lape, 657 F.3d 97, 102 (2d Cir. 2011). However,
in exceptional cases where a state court has engaged in an "exorbitant application of a generally
sound rule," the independent state law grounds will be rendered inadequate to prevent review by
the federal habeas court. Id. "To determine whether [a] case involves an exorbitant
misapplication of a state rule, [a court will] look to see if the state's application serves a legitimate
state interest." Id. "In evaluating the state interest in a procedural rule against the circumstances
8

of a particular case," the Second Circuit has adopted three criteria which serve as guideposts in a
court's evaluation:
(1) whether the alleged procedural violation was actually relied on
in the trial court, and whether perfect compliance with the state
rule would have changed the trial court's decision; (2) whether
state case law indicated that compliance with the rule was
demanded in the specific circumstances presented; and (3) whether
petitioner had substantially complied with the rule given the
realities of trial, and, therefore, whether demanding perfect
compliance with the rule would serve a legitimate governmental
interest. Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003).
Kozlowski v. Hulihan, 511 Fed. Appx. 21, 25 (2d Cir. 2013), cert. denied, 134 S. Ct. 446, 187 L.
Ed. 2d 285 (2013).
D.

Statute of Limitations
One of the most significant changes to a prisoner’s litigation landscape that was brought

about by Congress’ enactment of the AEDPA was the institution of a one-year statute of
limitations applicable to habeas petitions filed after April 24, 1996. See 28 U.S.C. § 2244(d).
The law now provides as follows:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of –
(A) the date on which the judgment 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;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
9

Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(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); Cook v. New York State Div. of Parole, 321 F.3d 274, 279-80 (2d Cir.
2003). As the Supreme Court observed in Duncan v. Walker, 533 U.S. 167 (2001), this statute of
limitations "reduces the potential for delay on the road to finality by restricting the time that a
prospective federal habeas petitioner has in which to seek federal habeas review." Duncan, 533
U.S. at 179; see also Strauss v. Yelich, No. 09-CV-0341, 2010 WL 1972781, *3 (N.D.N.Y. May
17, 2010) (citing Duncan, 533 U.S. at 179).
The AEDPA's statute of limitations contains a tolling provision which can serve to
mitigate the potential harshness of the one-year filing requirement. See 28 U.S.C. § 2244(d)(2).
This provision
balances the interests served by the exhaustion requirement and the
limitation period. Section 2244(d)(2) promotes the exhaustion of
state remedies by protecting a state prisoner's ability later to apply
for federal habeas relief while state remedies are being pursued. At
the same time, the provision limits the harm to the interest in
finality by according tolling effect only to properly filed
application[s] . . . .
Pace v. DiGuglielmo, 544 U.S. 408, 427 (2005) (quoting Duncan, 533 U.S. at 179-80). It is
well-settled, however, that this savings provision only tolls the statute of limitations during the
pendency of a properly-filed state court proceeding; it does not "reset" the one-year limitations
period. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Duell v. Conway, No. 9:07-CV1321, 2010 WL 2695641, *4 (N.D.N.Y. May 6, 2010) (citation omitted).
E.

Application
10

In his objections to Magistrate Judge Baxter’s Report and Recommendation, Petitioner
contends that his petition for a writ of habeas corpus is not time-barred and that he has complied
with the one-year statute of limitations period imposed by the AEDPA. See Dkt. No. 12 at 3.
“[U]nder N.Y. Crim. Pro. Law § 450.90, no appeal to the New York Court of Appeals lies
from an Appellate Division order denying a motion for leave to appeal a trial court’s denial of a
CPL § 440.10 motion.” See Horton v. McCoy, No. 11-CV-0034M, 2012 WL 34071, *2
(W.D.N.Y. Jan. 5, 2012) (citing Marte v. Brown, No. 09-CV-1036(RJS)(KNF), 2009 WL
4405803, at * 3 (S.D.N.Y. Dec. 1, 2009)); see also Hayward v. Connolly, No. 1:08-CV-00055ENV, 2010 WL 3125946, at *4 (E.D.N.Y. Aug. 5, 2010) (“As ‘there is no provision in New York
law for an appeal to the Court of Appeals from an order denying leave to appeal from an order
denying a Section 440.10 motion,’ such a putative appeal to the Court of Appeals [does] not
constitute a properly filed application for post-conviction review which tolls the AEDPA
limitations period”) (citations omitted).
In the present case, Petitioner argues that the time between June 29, 2012, when the
Appellate Division denied his 440.10 motion to vacate his conviction, and September 6, 2012, the
date upon which the Court of Appeals dismissed his application for leave to appeal the Appellate
Divisions denial on September 6, 2012, should be tolled. See Dkt. No. 12 at 4. However, as the
case law makes clear, since there is no proper avenue for an appeal of an appellate court’s denial
of a 440.10 motion, the statutory limitations period began to run again on June 29, 2012.
Until 2002, it was also recognized by the Second Circuit that the statute of limitations
period for a writ of habeas corpus was not tolled while a petitioner sought application from the
New York Court of Appeals to review an Appellate Court denial of a motion for error coram
nobis. See Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) (citing to Geraci v.
11

Senkowski, 211 F.3d 6, 9 (2d Cir. 2000), which “held that petitioner’s motion cease[s] to be
pending on the date on which the Appellate Division denied it, because, as of that date, ‘the door
of the New York Court of Appeals [is] closed and further appellate review [is] unavailable’”).
However, in 2002, “the New York State Legislature granted criminal defendants the ability to
appeal to the New York Court of Appeals”, and thus allowed the statute of limitations period to
be tolled during the time that a defendant sought review from the Court of Appeals regarding an
appellate division’s denial of a motion for error coram nobis. See Blair v. Health, No. 12-CV1001, 2013 U.S. Dist. LEXIS 161078, at *4–5 (S.D.N.Y. Nov. 8, 2013). “The Legislature
remedied the problem by amending CPL 450.90 (L 2002, Ch 498), authorizing appeals (by
permission) to this Court from appellate orders granting or denying coram nobis relief based on
claims of ineffective assistance or wrongful deprivation of appellate counsel.” See People v.
Stultz, 2 N.Y.3d 277, 281 (2004).
In Petitioners motion for error coram nobis, filed on October 11, 2012, among other
arguments raised, Petitioner contends that his appellate counsel was ineffective. See Dkt. No. 1 at
45. In that motion, Petitioner argued that his appellate counsel failed to present arguments
concerning the inflammatory and unsupported remarks made by the prosecutor during his
summation, such as suggesting to the jury that Petitioner was a member of a Jamaican drug gang
and in relying on an affidavit submitted by Andrew Houze. See id. at 47. The New York Court
of Appeals denied Petitioner’s motion for error coram nobis on February 21, 2013. See Dkt. No.
12 at 5. Thus, during the pendency of Petitioner’s motion for error coram nobis — between
October 11, 2012, and February 21, 2013 — the statutory limitations period for his ability to file a
writ for habeas corpus would have been tolled.

12

However, this tolling period would not remedy the Petitioner’s untimely filing of the
petition for writ of habeas corpus to this Court. As previously stated, the statute of limitations
began to run on April 18, 2011, the date on which Petitioner’s conviction became final. See Dkt.
No. 9 at 5. On February 29, 2012, 316 days later, Petitioner filed a motion to vacate his
conviction pursuant to N.Y. Crim. Pro. Law § 440.10. See Dkt. No. 12 at 4. This state court
proceeding tolled the statute of limitations period until June 29, 2012, when the Appellate
Division denied Petitioner’s appeal of the trial court’s denial of his 440.10 motion. See id. On
June 29, 2012, the statute of limitations period began to run again, upon which Petitioner had 49
days remaining, or until August 17, 2012, to either properly file a subsequent state court motion
for relief, or file a petition for habeas corpus with this Court. It was not until October 11, 2012,
that Petitioner filed his error coram nobis application, 55 days after the statute of limitations had
already expired. Although Petitioner is correct in his objections that a properly filed coram nobis
application would have tolled the statute until he received a decision on that application, since the
one-year statute of limitations for a habeas corpus petition had already expired his argument is
without merit. As Magistrate Judge Baxter correctly noted, when the statute of limitations for
federal habeas relief has already expired, filing a new collateral state-court motion does not restart
the statute of limitations period. See Diaz v. Kelly, 515 F.3d 149, 152 (2d Cir. 2008). When
Petitioner filed his petition for writ of habeas corpus with this Court on March 12, 2013, the
petition was 207 days past the one-year statute of limitations period.
Petitioner also contends in his objections to Magistrate Judge Baxter’s Report and
Recommendation that “both the magistrate and the Respondent had failed to subtract the period of
time when Petitioner had filed his original habeas corpus, which was withdrawn without prejudice
on February 7, 2012.” See Dkt. No. 12 at 5. In his objections, Petitioner refers to the language
13

within 28 U.S.C. § 2244(d) by stating that “the limitations period is tolled ‘during the pendency
of 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
limitations.’” See id. In Nuetzel v. Walsh, No. 00-Civ-8776RJHMHD, 2004 WL 964249, *1
(S.D.N.Y. May 5, 2004), in its opinion regarding petitioner’s request to withdraw his petition for
habeas corpus without prejudice, the Court cited to a Second Circuit case which held that
“withdrawal of a petition may cause the petitioner to lose his opportunity to refile even if he
moves quickly before the state courts, because the Supreme Court has held that the premature
filing of a federal habeas petition does not toll the one-year time limit for proper filing.” Id.
(citing Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 534 U.S. 1015 (2001)). Moreover,
the United States Supreme Court has noted that there is “no likely explanation for Congress’
omission of the word 'Federal' in § 2244(d)(2) other than that Congress did not intend properly
filed applications for federal review to toll the limitations period.” Duncan v. Walker, 533 U.S.
167, 173 (2001). Thus, Petitioner’s claim that the statute of limitations period should have been
tolled from the date that he filed his original petition for a writ of habeas corpus is without merit.
F.

Equitable Tolling
In Petitioner’s objections to Magistrate Judge Baxter’s Report and Recommendation, he

has provided no reasons for this Court to find that any periods of equitable tolling should apply.
Under 28 U.S.C. § 2244(d), a petitioner is allowed equitable tolling where it can be shown that
(1) he has been diligently pursuing his rights; and (2) that some extraordinary circumstance
prohibited him from filing his petition in a timely manner. See Holland v. Florida,560 U.S. 631
(2010). Petitioner has failed to put forth any reasons while this Court should equitably toll the
statute of limitations in this case.
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Petitioner has also failed to present any claim of actual innocence in his petition that
would require a review of his grounds for relief. The actual innocence exception requires that
Petitioner present “new evidence” showing that it is “more likely than not that no reasonable juror
would have convicted the petitioner.” See McQuiggin v. Perkins, 133 S. Ct. 1924, 1933 (2013)
(quotation marks omitted). No such evidence has been presented to the Court.
G.

Motion for the Assignment of Counsel
Finally, in his filed objections to Magistrate Judge Baxter’s Report and Recommendation,

Petitioner requests this Court to review his motion for appointment of counsel that had been
previously denied by Magistrate Judge Baxter in a decision dated September 24, 2013. See Dkt.
No. 12 at 6. Petitioner contends that, pursuant to the arguments raised in his objections regarding
the timeliness of his petition, it is necessary for this Court to reconsider whether Petitioner should
be granted the appointment of counsel. See id.
As properly stated in Magistrate Judge Baxter’s Decision and Order, “[t]here is no
constitutional right to representation by counsel in habeas corpus proceedings.” See Dkt. No. 11
at 1 (citing Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (citations omitted). However, a
court may use its discretion in determining whether to appoint counsel where “the interests of
justice so require.” 18 U.S.C. § 3006(a)(2)(B). In deciding whether to exercise such
discretionary power, the court should consider “the petitioner’s likelihood of success on the
merits, the complexity of legal issues raised by the petition, and the petitioner’s ability to
investigate and present the case.” De Los Rios v. United States, No. 86 CR. 279, 1994 WL
502635, *6 (S.D.N.Y. Sept. 14, 1994). The court should also use its discretion to appoint counsel
for a petitioner where an evidentiary hearing is necessary in order to resolve the issues that are

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raised in the habeas corpus petition. See Rule 8(c), Rules Governing § 2254 cases; see also
Green v. Berry, No. 90-Civ-2441, 1991 WL 4690 (S.D.N.Y. Jan. 11, 1991).
Based on this Court’s finding that the petition for writ of habeas corpus was time-barred in
that it was filed 207 days after the statute of limitations period had expired, Petitioner’s motion
for the appointment of counsel is denied as moot.
H.

Certificate of Appealability
The Court notes that 28 U.S.C. § 2253(c)(1) provides in relevant part that, "[u]nless a

circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court
of appeals from — (A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court[.]"4 28 U.S.C. § 2553(c)(1). A court
may only issue a Certificate of Appealability "if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Since Petitioner has failed to make such a showing with regard to any of his claims, the
Court declines to issue a Certificate of Appealability in this matter. See Hohn v. United States,
524 U.S. 236, 239-40 (1998) (quotation omitted). Further, the Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this Memorandum-Decision and Order would not be
taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962); see also Slack v. McDaniel, 529
U.S. 473, 484 (2000).
IV. CONCLUSION
Accordingly, the Court hereby

Rule 22 of the Federal Rules of Appellate Procedure also provides that an appeal may not
proceed in such actions "unless a circuit justice or a circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1).
4

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ORDERS that the petition for a writ of habeas corpus is DENIED and DISMISSED; and
the Court further
ORDERS that no Certificate of Appealability shall be issued with respect to any of
Petitioner's claims; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 19, 2015
Albany, New York

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