Stein v. Stallone
Filing
49
DECISION AND ORDER: It is ORDERED that the petition (Dkt. No. 1 ) is DENIED AND DISMISSED IN ITS ENTIRETY; and it is further ORDERED that no Certificate of Appealability ("COA") shall issue because petitioner has failed to make a "sub stantial showing of the denial of a constitutional right" as 28 U.S.C.§ 2253(c)(2) requires; and it is further ORDERED that any further request for a Certificate of Appealability must be addressed to the Court of Appeals (Fed. R. App. P. 22 (b)); and it is further ORDERED that the Clerk shall serve a copy of this Decision and Order on the parties, and serve an updated docket sheet upon petitioner, in accordance with the Local Rules. Signed by Judge Brenda K. Sannes on 10/29/2019. (Copy served via regular mail)(meb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHRISTOPHER STEIN,
Petitioner,
v.
9:17-CV-0670
(BKS)
DAVID STALLONE,
Respondent.
APPEARANCES:
OF COUNSEL:
CHRISTOPHER STEIN
05-B-1667
Petitioner, pro se
Groveland Correctional Facility
7000 Sonyea Road
Sonyea, NY 14556
LETITIA JAMES
Attorneys for Respondent
New York State Attorney General
120 Broadway
New York, NY 10271
LISA E. FLEISCHMANN, ESQ.
Ass’t Attorney General
BRENDA K. SANNES
United States District Judge
DECISION and ORDER
I.
INTRODUCTION
On June 21, 2017, Petitioner Christopher Stein, proceeding pro se, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition (“Pet.”); Dkt. No.
1-1, Petitioner’s Exhibits (“Pet. Ex.”). In a Decision and Order filed on July 11, 2017, the
Court directed petitioner to file a written affirmation, explaining why the statute of limitations
should not bar the petition. Dkt. No. 8, Decision and Order at 6-7, f iled July 11, 2017.
On August 21, 2017, petitioner filed an affirmation, with exhibits. Dkt. No. 11,
Affirmation (“Aff.”); Dkt. No. 11-1, Petitioner’s Affirmation Exhibits (“Aff. Ex.”). In a Decision
and Order filed on September 26, 2017, the Court ordered respondent to file an answer to
the petition and provide the Court with the relevant records within ninety days. Dkt. No. 12,
Decision and Order at 2, filed Sept. 26, 2017. Respondent filed his answer, supporting
memorandum, and state court records on December 29, 2017. Dkt. No. 17, Respondent’s
Answer; Dkt. No. 17-1, Respondent’s Memorandum of Law in Opposition to the Petition for a
Writ of Habeas Corpus (“R. Mem.”); Dkt. 18, State Court Record Volume I (“SCR I”); Dkt. 181, State Court Record Volume II (“SCR II”).1 Petitioner filed a reply/traverse to respondent’s
Answer on March 19, 2018. Dkt. No. 28, Petitioner’s Reply (“Reply”).
For the reasons that follow, petitioner’s habeas petition is denied and dismissed.
II.
BACKGROUND
A.
Guilty Plea and Sentencing in 2005.
On March 17, 2005, Petitioner pled guilty to one charge of first-degree rape, in
accordance with a written Plea Memorandum, in satisfaction of an eleven-count indictment.
SCR I at 4-5, 320. At the plea hearing, petitioner admitted to the following facts: that on or
about October 26, 2014, he forced the victim from her apartment at knife point; that he took
her to his apartment for the purpose of raping her; that he did, in fact, force her to have
sexual intercourse with him; that in order to compel her to have sexual intercourse with him,
he threatened her with the knife; and that there was nothing consensual about the behavior.
SCR I at 10-12. While the People reserved the right to recommend the maximum sentence
1
For clarity, citations to petitioner’s exhibits and the state court records provided by respondent will refer to
the pagination generated by CM/ECF, the Court’s electronic filing system.
2
of twenty-five years, the Court stated that it would not impose a sentence exceeding eighteen
years, which carried a term of post-release supervision of five years. SCR I at 3-5. In the
Plea Memorandum, petitioner waived the right to appeal and the right to bring any postjudgment motions. SCR I at 260.
Petitioner was sentenced on May 27, 2005, to eighteen years incarceration and five
years of post-release supervision. Id. 34-35, 320. The court also entered a permanent order
of protection barring petitioner form having contact of any kind, including third-party contact,
with the victim and her family. Id.
B.
Petitioner’s Correspondence and Filings Between 2006 and 2015.
1.
Correspondence with Counsel in 2006 Regarding a Notice of
Appeal.
Petitioner did not file a timely notice of appeal. He states that he requested that
defense counsel, Richard Wallace, file a notice of appeal at sentencing. Aff. at 2; Aff. Ex. B
at 31. Petitioner subsequently wrote to Mr. Wallace asking about the notice of appeal. Aff.
at 2. In a May 15, 2006, letter, petitioner stated: “I am starting work on my appeal and I need
a copy of my notice of appeal or date of filing . . . .” Aff. Ex. B at 5. He followed up in a letter
dated July 22, 2006, asking “[d]id you also file the papers for appeal. If so, please forward
that information also.” Id. at 10. In a November 11, 2006, letter to Mr. Wallace, petitioner
mentioned that he “want[ed] to line everything up in a row prior to starting action, on appeal.”
Id. at 19. Mr. Wallace did not answer petitioner’s questions regarding a notice of appeal,
although he responded to other queries. Id. at 7, 18, 22.
2.
Correspondence with State Courts in 2006 and 2007 Regarding a
Notice of Appeal.
3
Petitioner wrote to the New York Supreme Court, Appellate Division, Third Department
on June 19, 2006, for information regarding the notice of appeal. Aff. Ex. D at 40. On July
11, 2006, the Third Department responded that it had no record that a notice of appeal was
filed in his case. Id. Petitioner subsequently sought to file a direct appeal. On November 2,
2006, Petitioner filed a “Motion for Transcripts and Records, not part of the Record,” Aff. at
7, attempting to obtain the transcripts from the Tompkins County Court proceedings “so he
might possibly look into his appeal,” id.2 He also filed for poor person’s relief to appeal his
conviction. Aff. Ex. D at 36. The trial judge denied the motion on November 28, 2006,
because petitioner had not filed a notice of appeal and his motion should have been brought
in the Third Department. Aff. at 7; Aff. Ex. D at 37. Petitioner’s motion to renew and reargue
was denied on February 22, 2007. Aff. at 7; Aff. Ex. D at 38-39. Petitioner sought to appeal
the trial judge’s decision to the Third Department, Aff. Ex. D at 41, but was informed by letter
dated February 28, 2007, from the Third Department that a timely notice of appeal was
required and that none had been filed in his case, id. at 42.
3.
Petitioner’s Correspondence with Counsel Regarding His Case File.
Petitioner also corresponded with Mr. Wallace during this period regarding his criminal
case file. His May 15, 2006, letter to counsel stated that he “need[ed] to ask f or copies of
[his] file,” Aff. Ex. B at 5; see also Aff. at 6, because “while at Attica Correctional Facility all
[his] paperwork was destroyed,” Aff. Ex. B at 5. On June 19, 2006, petitioner instructed Mr.
2
Petitioner eventually attempted to obtain a copy of the transcript of his arraignment from the Tompkins
County Court and the court reporter. On June 6, 2011, he sent a letter to the Chief Clerk of the Tompkins County
Court requesting the transcript. Aff. Ex. H at 53. Three years later, on August 5, 2014, he again wrote to the court
clerk asking the cost of obtaining the transcripts. Id. at 54. He also wrote to the court reporter on September 29,
2014, inquiring about the cost of the transcripts. Id. at 55. Thereafter, petitioner sent letters to both the Clerk of the
Third Department and the Chief Clerk of the Tompkins County Court, on March 5, 2015, and April 22, 2015,
respectively, to complain about the lack of response from the court reporter. Id. at 56-58.
4
Wallace to “immediately forward the entire file . . . .” Id. at 6. Counsel responded on July 11,
2006, that petitioner had “asked [him] to get [his] file to Attorney Thomas Kheel and transmit
to him the entire file.” Id. at 7. Mr. Wallace enclosed a copy of the release petitioner signed
and receipt for the file signed by Mr. Kheel. Id.3
Petitioner wrote to Mr. Wallace again on July 22, 2006, “asking again for copies of
[his] files so [he] may prepare [his] defense in this civil suit and also for [his] future appeal.”
Ex. B at 10. In addition, petitioner wrote several letters to Mr. Kheel seeking his file. Id. at 89,12-13, 15. On October 16, 2006, petitioner sent another letter to trial counsel dem anding
that counsel send him the file. Id. at 14. That same day, Mr. Kheel returned petitioner’s file
to petitioner’s attorney. Id. at 16. Mr. Wallace responded on October 24, 2006, that he had
just gotten the file back and was forwarding it to petitioner. Id. at 18; see also id. at 22.
Even after receiving his file, petitioner, apparently believing that some of it was
missing, continued to write to both attorneys. Aff. Ex. B at 19-20, 22. In a November 11,
2006, letter, petitioner told Mr. W allace that “[t]here is something going on with the number of
pages . . . .” Id. at 19. Petitioner also wrote to Mr. Kheel on November 11, 2006, who
responded on November 17, 2006, that he suspected, but could not prov e, that the file he
received was incomplete. Id. at 20. On November 29, 2006, Mr. Wallace informed petitioner
3
Mr. Kheel was the attorney who represented petitioner’s cousin in a civil suit filed by the victim, her
roommates, and their landlord against petitioner and his cousin arising from the criminal matter. Aff. at 5-6; Aff. Ex.
B at 8; see also R. Mem. at 14. Petitioner was served with papers regarding the civil action at Attica Correctional
Facility, but asserts that interference from some correctional officers and the destruction of his legal papers
prevented him from filing an answer to the civil complaint until he was transferred to Clinton Correctional Facility in
February of 2006. Id. By then, petitioner’s answer was late and the court defaulted him. Id. Petitioner states that
he subsequently attempted to file a countersuit in the civil action, but the civil court would not entertain the motion
because petitioner had previously been defaulted. Aff. at 7. The civil litigation ended in August, 2008, when the court
granted summary judgment to the remaining defendants and dismissed the complaint. Id. at 6; Aff. Ex. B at 11; SCR
I at 43-44.
5
that “if there is something going on with the number of pages, [he] would have no way of
helping [petitioner] figure that out.” Id. at 22. Mr. Wallace’s November 29, 2006, response is
the last correspondence between petitioner and counsel in the record until August 25, 2014,
when petitioner, preparing to file his post-conviction motions, wrote to defense counsel
seeking information regarding actions counsel took, or did not take, during his representation
of petitioner in the criminal case. Id. at 31.
4.
Petitioner’s FOIL Requests and Article 78 Proceedings.
Between 2006 and 2013, petitioner filed Freedom of Information Law (“FOIL”), N.Y.
Pub. Off. Law § 89(6), requests with various entities, seeking evidence regarding petitioner’s
arrest and interrogation as well as the investigation that was supposed to have taken place
after the crime. Aff. at 7. The first FOIL request, for records pertaining to his residence and
arrest, appears to have been made to the New York State Police on November 18, 2006.
Aff. Ex. F at 49; SCR I at 176. In a December 29, 2006, letter, the Records Access Officer
responded that “a diligent search of our files failed to locate any records responsive to your
request.” Aff. Ex. F. at 49. There is also evidence of an early request to the Tompkins
County District Attorney’s Office for an “unredacted” copy of the videotape of his October 26,
2004, arrest and other documents. SCR I at 84, 175. Petitioner states that the District
Attorney’s Office sent him “838 pages of documents (many were duplicates), plus a redacted
D.V.D. of the interrogation/confession . . . .” Id. at 175-76. Petitioner also sought any
“unredacted” audio or video recordings of his October 26, 2004, interrogation and other
documents from the Ithaca Police Department, first in September, 2008, and again in
January, 2011. Id. at 58, 61, 175. With respect to the first request, the City Attorney’s Office
6
responded that the Ithaca Police Department had reported that “after a diligent search, no
documents were found that [were] responsive to your request.” Id. at 58; see also id. at 176.
The subsequent request was disregarded as being duplicative of the first. Id. at 58. On
August 20, 2013, petitioner requested a number of documents relating to his arrest from the
City of Ithaca. Id. at 84. The next day, he requested the same records from the Tompkins
County Sheriff’s Office. Id. The City Attorney’s Office responded that records responsive to
petitioner’s request were not available or had previously been provided to him pursuant to his
2006 FOIL request. Id. The Tompkins County Sheriff’s Office informed petitioner that after
searching its records, it found no records that matched his requests. Id. at 85.
After his FOIL requests were unsuccessful, petitioner turned to the courts for
assistance. Aff. at 7-9. Petitioner first filed an Article 78 motion, N.Y. Pub. Off. Law §
89(4)(b), in the Clinton County Court against Tompkins County and its the District Attorney
and Sheriff; the City of Ithaca and the Chief of its Police Department; and Cornell University.
Id. at 8. The motion was dismissed on March 2, 2007, because the court f ound that
petitioner was not a resident of Clinton County. Id. Petitioner provides no further details
regarding this motion. See id.
Petitioner also filed an Article 78 motion against the Ithaca Police Department and
unnamed Ithaca FOIL officers in the Tompkins County Court on April 28, 2011. Aff. at 8-9;
Pet. Ex. 4 at 6; SCR I at 60, 176. The court found that the respondents had dem onstrated
that they did not possess the DVD/videotape petitioner sought and had performed a diligent
7
search for the material requested by petitioner. Pet. Ex. 4 at 8; SCR I at 62. 4 The court
further stated that petitioner had not come forward with evidence that the requested
DVD/videotape was in the possession of the City of Ithaca. Aff. Ex. 4 at 8; SCR I at 62. The
court denied relief and dismissed the motion on August 3, 2011. Pet. Ex. 4 at 8; SCR I at 62,
176.
Petitioner next filed an Article 78 motion against the New York State Police in Albany
County Court on November 26, 2013, Aff. at 9; SCR I at 78-81, 177. The county court
determined that the respondent had met its burden to establish that no additional records,
beyond those already turned over to petitioner, could be located and that petitioner had f ailed
to meet his burden of articulating a factual basis to support his contention that such
documents existed and were within the respondent’s control. SCR I at 80-81. On April 30,
2014, the court denied the motion as moot. Aff. at 9; SCR I at 81.
Finally, in February, 2014, petitioner filed an Article 78 motion against the Ithaca
Police Department and the Tompkins County Sheriff’s Department in Delaware County. Aff.
at 9; SCR I at 83-87, 177-78. The court stated that it could not find “that the agencies acted
arbitrarily or capriciously in not providing records if those records [did] not exist or [were] not
in their possession,” SCR I at 85-86, and that the m otion failed to state a cause of action, id.
at 86. Accordingly, on May 28, 2014, the Delaware County Court denied the motion. Id. at
4
Lieutenant Christopher Townsend of the Ithaca Police Department submitted an affidavit stating that he
“checked the evidence custody documents concerning this case,” Aff. Ex. E at 46; that the “evidence custody
documents indicate that the tape was given to the Tompkins County District Attorney’s Office,” id. at 47; and that
there was “no documentation that indicates the video tape was ever returned to Ithaca Police Department custody,”
id.
According to petitioner, he received a copy of the video in his case file from the Tompkins County District
Attorney’s Office in March, 2011. Aff. Ex. E at 45. The secretary’s letter noted that she had no other tape and was
not aware of the existence of another. Id.
8
86-87; 178. 5
C.
September 2015 Motion to Vacate
On or about September 8, 2015, petitioner filed a pro se motion to vacate judgment
pursuant to New York Criminal Procedure Law § 440.10(1) in the trial court. Aff. at 10; Pet.
Ex. 1 at 1; SCR I at 320. Petitioner claimed violation of his rights to due process, a fair trial,
and counsel under the Fifth and Fourteenth Amendments to the United States Constitution
and N.Y. Const. Art. 1, § 6. Pet. at 3; SCR I at 185. Specif ically, petitioner alleged police
misconduct, judicial misconduct, prosecutorial misconduct, and ineffective assistance of
counsel. Pet. at 3; Aff. at 10; SCR I at 185-231. Petitioner also asserted that his guilty plea
was not knowing, voluntary, and intelligent. Pet. at 3; SCR I at 232-39. In addition, petitioner
sought recusal of the trial judge. Pet. at 3; Pet. Ex. 1 at 1; SCR I at 320. The People
opposed the motions. Pet. Ex. 1 at 1; SCR I at 241-58. Petitioner then f iled a reply to the
People’s opposition. Pet. Ex. 1 at 1; SCR I at 311-19.
The Tompkins County Court denied petitioner’s motion in a Decision and Order dated
February 3, 2016. Pet. Ex. 1 at 3; SCR I at 320. The court stated:
[Petitioner’s] 440 motion recites a litany of errors arising from the bias of the
trial court and the alleged conspiracy of the judge and his assigned attorney, to
wit: duress, misrepresentation, fraud, ineffective assistance of counsel, denial
of due process and failure to disclose exculpatory evidence, among others.
In support of the motions, [petitioner] provides only his own affidavit, together
with numerous exhibits, many of which are letters and decisions from collateral
proceedings providing no support for the requested relief.
Pet. Ex. 1 at 1-2; SCR I at 320-21. The court concluded:
5
Petitioner had previously moved to consolidate the Albany County and Delaware County proceedings. SCR
I at 89. The motion to consolidate was denied on June 20, 2014. Id. 89-90.
9
Here, the sole basis for these motions is [petitioner]’s own self serving affidavit.
He presents not a scintilla of actual evidence in support of his irrational belief
that the court and his lawyer engaged in a conspiracy to thwart his
constitutional rights. By entering his guilty plea as agreed upon, [petitioner]
received a favorable result of a lesser sentence than permitted under the law.
As evidenced by the transcripts of the plea allocution and sentencing hearing,
[petitioner] voluntarily admitted the commission of every element of the crime.
Although he now asserts his attorney failed to provide effective representation,
nothing in the record or in [petitioner’s] papers lends any credibility to that
claim. In fact, it is apparent that defense counsel provided [petitioner] with
zealous representation by negotiating a favorable plea agreement and by
obtaining a detailed, independent sentencing report in an effort to present the
court with mitigating factors to reduce the potential sentence.
Pet. Ex. 1 at 2-3; SCR I at 321-22. The court denied petitioner’s motions in their entirety.
Pet. Ex. 1 at 1, 3; SCR I at 320, 322.
Petitioner filed an application for leave to appeal the denial of the 440 motion, SCR I
at 324, but on April 25, 2016, the T hird Department denied the request, id. at 323. Petitioner
next sought permission to appeal from the New York Court of Appeals. SCR I at 77-87. On
July 5, 2016, the Court of Appeals denied the application. Id. at 76.
III.
THE PRESENT PETITION
Petitioner filed this petition on June 21, 2017, alleging that the police, the trial judge,
and the prosecutor engaged in misconduct; that he received ineffective assistance of
counsel; and that his plea was not knowing, voluntary, and intelligent. Pet. at 5-12.
Specifically, petitioner asserts that the police ignored his requests for counsel during their
initial interrogation and only provided a redacted videotape of the interrogation containing his
inculpatory statement; that the judge had a conflict of interest with petitioner’s attorney; that
the prosecutor committed misconduct by only disclosing the “deleted version” of the
videotaped interrogation; that his attorney was ineffective in, inter alia, making the wrong
10
arguments at the suppression hearing and failing “to file a notice of appeal as requested;”
and that his guilty plea was not knowing and voluntary. Pet. at 5-12. Before the Court may
consider the merits of his claims, however, it must address the threshold question of the
timeliness of the Petition. 6 See, e.g., Perez v. United States, 502 F. Supp. 2d 301, 304
(N.D.N.Y. 2006).
IV.
DISCUSSION
A.
The Petition Is Untimely.
The AEDPA established a one-year statute of limitations for prisoners to seek federal
review of their state court criminal convictions. 28 U.S.C. § 2244(d)(1). The one-year period
generally begins to run from the date on which the state criminal conviction became final by
the conclusion of direct review or by the expiration of the time to seek direct review. 28
U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 & n.9 (2012). 7 In New
York, that period is thirty days. Gonzalez, 565 U.S. at 150; Bethea v. Girdich, 293 F.3d 577,
578 (2d Cir. 2002) (citing N.Y. CPL § 460.10(1)). The one-year limitation period under
AEDPA is tolled while "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);
Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir. 2009). The tolling provision "excludes
6
In its September 26, 2017, Decision and Order, the Court deferred ruling on the timeliness issue until
respondent had an opportunity to respond to the petition and affirmation. Dkt. No. 12, Decision and Order at 1-2,
filed September 26, 2017.
7
Other dates which may trigger running of the limitations period are: the date on which an impediment to
filing an application created by state action in violation of the U.S. Constitution or laws is removed, if the applicant
was prevented from filing by such action; the date on which the constitutional right on which the petitioner bases his
habeas application was initially recognized by the Supreme Court, if the right has been newly recognized and made
retroactively applicable to cases on collateral review; and the date on which the factual predicate of the claim(s)
presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D).
11
time during which properly filed state relief applications are pending but does not reset the
date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir. 2000) (per curiam); Rodriguez v. Smith, No. 9:14-CV-1274 (BKS/ATB),
2015 WL 5968837, at *6 (N.D.N.Y. Oct. 13, 2015).
Petitioner was sentenced on May 27, 2005. SCR I at 14, 320. He had thirty days in
which to file a notice of appeal. N.Y. Crim. Proc. Law 460.10(1). Petitioner did not do so.
Therefore, the time for filing a notice of appeal expired, petitioner’s judgment became final,
and the one-year statute of limitations under AEDPA began to run on June 27, 2005. 8 See
28 U.S.C. 2244(d)(1)(A); Craig v. Connolly, No. 9:15-CV-384 (GLS/CFH), 2016 W L
7993378, at *3 (N.D.N.Y. Dec. 7, 2016) (citing Bethea, 293 F.3d at 578). Accordingly,
pursuant to 2244(d)(1)(A), petitioner had until June 27, 2006, to f ile a timely habeas petition
under 2254, unless one of the above exceptions applies.
Respondent notes that “petitioner contends that his counsel w as ineffective for not
filing a notice of appeal. Thus, the limitations period began to run on the date on which
petitioner, exercising due diligence, reasonably should have discovered that counsel had
failed to file a notice of appeal.” R. Mem. at 26 (citing 28 U.S.C. 2244(d)(1)(D); Wims v.
United States, 225 F.3d 186, 190 (2d Cir. 2000)). As Respondent observ es, petitioner was
informed that no notice of appeal had been filed on July 11, 2006, November 28, 2006, and
February 28, 2007. Id.
According the petitioner the full benefit of the doubt, as Respondent argues, petitioner
had a year from February 28, 2007, in which to file his Petition. Id. at 23-24. Petitioner did
8
The thirty-day period for filing a direct appeal expired on June 26, 2005, which was a Sunday. See Fed.
R. Civ. P. 6(a)(1)(C).
12
not file the instant Petition until June 21, 2017, m ore than nine years after the statutory
limitation period had expired. See 28 U.S.C. 2244(d)(1)(D). Therefore, the Petition is
untimely.
B.
Petitioner Has Failed to Demonstrate That He Is Entitled to Equitable
Tolling.
1.
Equitable Tolling
AEDPA's one-year statute of limitations period "is subject to equitable tolling in
appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010) (citing, inter alia, Smith 208
F.3d at 17). To warrant equitable tolling, a petitioner must show "'(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way'
and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)); see also Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008). To make the requisite
showing, a petitioner must “demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and the lateness of his filing[.]”
Rodriguez, 2015 WL 5968837, at *6 (quoting Hizbullahankhamon v. Walker, 255 F.3d 65, 75
(2d Cir. 2001)). Further, a petitioner must establish that he “acted with reasonable diligence
throughout the period he seeks to toll.” Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004).
“The link of causation is broken if the person seeking equitable tolling has not exercised
reasonable diligence.” Rodriguez, 2015 WL 5968837, at *6 (citing Barrett v. United States,
961 F. Supp. 2d 403, 408 (D. Conn. 2013)); see also Hizbullahankhamon, 255 F.3d at 75;
(noting that causal relationship cannot be demonstrated “if the petitioner, acting with
reasonable diligence, could have filed on time notwithstanding the extraordinary
circumstances”).
13
2.
Petitioner has not demonstrated that extraordinary circumstances
prevented timely filing of the Petition.
Petitioner does not dispute that the petition is untim ely, nor does he contend that he is
entitled to statutory tolling pursuant to § 2244(d)(2). 9 Instead, he argues that the statute of
limitations should be equitably tolled in this case due to “extraordinary circumstances.” Aff. at
1-2. Petitioner points to several alleged failures by his trial counsel. Id. at 2. In addition,
petitioner contends that counsel and various agencies withheld documents and evidence,
thus preventing petitioner from offering them as proof of petitioner’s claims in any appeal or
post-conviction action. Id. However, Petitioner has not shown how any of these
circumstances are “extraordinary” or prevented him from filing a timely petition. See
Trombley v. Bosco, No. 9:14-CV-01118 (JKS), 2016 W L 6238576, at *4 (N.D.N.Y. Oct. 25,
2016) (“The term ‘extraordinary’ refers not to the uniqueness of a party’s circumstances, but
rather to the severity of the obstacle impeding compliance with a limitations period.” (citing
Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2001))). The Second Circuit has “set a high bar
to deem circumstances sufficiently ‘extraordinary’ to warrant equitable tolling.” Dillon v.
Conway, 642 F.3d 358, 363 (2d Cir. 2011).
a.
Trial counsel’s alleged failures in 2005 and 2006 did not
prevent petitioner from timely filing a Petition after February
2008.
Although the Second Circuit has held that “an attorney’s conduct, if it is sufficiently
9
Statutory tolling would not apply in this case because petitioner had no “properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or claim . . . pending . . . .” 28 U.S.C.
§ 2244((d)(2). Petitioner did not file his 440 motion to vacate in the Tompkins County Court until September 8, 2015,
more than seven years after the AEDPA limitation period had expired; therefore, that motion cannot serve to “revive
the expired statute of limitations.” Gillard v. Sticht No. 9:16-CV-513 (MAD/ATB), 2017 WL 318848, at *3 (N.D.N.Y.
Jan. 23, 2017) (citations omitted). The FOIL requests and related Article 78 petitions that petitioner filed between
2006 and 2014 seeking documents do not toll the limitations period. See Hodge v. Greiner, 269 F.3d 104, 107 (2d
Cir. 2001).
14
egregious, may constitute the sort of ‘extraordinary circumstances’ that would justify the
application of equitable tolling to the one-year limitations period of AEDPA,” there is no such
error alleged here. Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir. 2003). Here,
petitioner alleges that his trial counsel: (1) failed to file a notice of appeal, despite petitioner’s
alleged request at sentencing that he file such notice; (2) failed to answer petitioner’s letters
asking if and when he filed the notice of appeal; and (3) failed to turn over petitioner’s case
file for over a year and a half despite numerous letters from petitioner requesting said file.
Aff. at 2. Assuming, however, that the limitations period began to run on February 28, 2007,
when petitioner knew that no appeal had been filed, and expired on February 28, 2008, this
alleged conduct by trial counsel in 2006 did not prevent petitioner from timely filing a petition.
Petitioner has not shown how trial counsel’s failure to file a notice of appeal in 2005
prevented him from filing for collateral relief, federal or state, until 2015, well after the statute
of limitations expired in 2008. Cf. Craig v. Connolly, No. 9:15-CV-384 (GLS/CFH), 2016 W L
7993378 (N.D.N.Y. Dec. 7, 2016) (“Even assuming that petitioner’s attorney failed to file the
notice of appeal, this would bear no causal connection to petitioner’s independent f ailure to
timely file a habeas petition, and, therefore, would not constitute an ‘extraordinary
circumstance.’”). Nor does trial counsel’s unresponsiveness to petitioner’s 2006 letters
regarding the notice of appeal warrant equitable tolling in 2008. There is no correspondence
between petitioner and his trial counsel in the record f rom February 28, 2007, to February 28,
2008, the period during which the statute of limitations was running. Other than petitioner’s
August 26, 2014, inquiry seeking information about what actions Mr. Wallace’s took during
his handling of the case, Aff. Ex. B at 31-32, the last communication between them in the
record is a letter from Mr. Wallace to petitioner dated November 29, 2006, id. at 22, before
15
the limitation period began to run. Trial counsel’s failure to respond to petitioner’s 2014 letter
clearly does not support equitable tolling from a limitations period that expired on February
28, 2008.
Similarly, trial counsel’s “failure” to turn over petitioner’s case file “for over 1 ½ years
after petitioner’s proceedings had ended . . . ,” Aff. at 2, did not prevent petitioner from filing a
timely petition for habeas corpus relief in this Court. Mr. Wallace explained to petitioner on
July 11, 2006, that, per petitioner’s request, he had given the file to counsel for petitioner’s
cousin because of the pending civil suit related to the criminal case. Aff. Ex. B at 7, 18. As
soon as the civil proceedings concluded and the file was returned to petitioner’s counsel, he
turned it over to petitioner on or about October 24, 2006. Id. at 18. Thus, petitioner was
already in possession of his case file before the statute of limitations began to run on
February 28, 2007, and well before the expiration of the limitation period a year later.10
b.
The alleged withholding of documents did not prevent
petitioner from timely filing his Petition.
“An ordinary lack of access or inability to obtain documents does not warrant equitable
tolling.” See Williams, 2011 WL 2671511, at *5 (citing Padilla v. United States, No. 1:02 Civ.
1142, 2002 WL 31571733, at *4 (S.D.N.Y. Nov. 19, 2002) (“Even if [petitioner] did not have
all the necessary materials or experienced a delay in obtaining them, those are not
extraordinary circumstances warranting equitable tolling.”) (alteration in original)); Davis,
2000 WL 973752, at *2. “Such denial of access to necessary papers typically requires ‘some
event [that] effectively prohibits the petitioner from pursuing habeas . . . .” Id. (quoting
10
Petitioner also asserts that due to interference from some correctional officers, he could not start any legal
work until his transfer from Attica C. F. to Clinton C.F. Aff. at 5-6. But that transfer occurred in February, 2006, id.
at 6, a full year before the statute of limitations began to run.
16
Raynor v. Dufrain, 28 F.Supp. 2d 896, 900 (S.D.N.Y. 1999)) (alterations in original).
Here, petitioner claims that “the withholding of documents/evidence by various
agencies, and trial counsel, prevent[ed] petitioner from offering them as proof of [his claims]
in any appeal or post-convictions . . . .” Aff. at 2; see also id. at 10 (“Without these requested
(and they were requested in discovery also) documents, these entities know petitioner cannot
prove his accusations . . . .”). 11 Petitioner sought, inter alia, the original recording of his
videotaped confession, the chain of custody for the recording and the name of the equipment
operator who recorded the confession. Aff. at 7. Petitioner suggests that he could not timely
file a state or federal petition without these materials. See id. at 10 (“This is the reason why it
took petitioner so long to file any of his post-conviction motions – no one would turn over the
documents.”). While petitioner appears to argue that the materials in question were
intentionally kept from him, Aff. at 10, the key is “some event [that] effectively prohibits the
petitioner from pursuing habeas . . .,” Williams, 2011 WL 2671511, at *5) (alterations in
original), not from pursuing documents.
This circumstance did not prevent petitioner from filing a timely petition. Rather, “[i]f a
prisoner believes he is entitled to discovery in aid of a state or federal collateral attack, his
remedy is to seek such relief from the court where a properly filed and timely collateral attack
on his conviction is pending.” Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001). Thus, all
of the materials petitioner alleges were withheld could have been sought after a timely
federal petition was filed. See id; see also Davis v. McCoy, No. 1:00 CIV. 1681, 2000 W L
11
To the extent petitioner contends that counsel failed to provide documents other than the case file, the
only one he identifies is “a copy of probation’s pre-sentence investigation.” Aff. Ex. B at 5. As noted above, petitioner
received his case file on or about October 24, 2006, id. at 18, and he does not argue that he needed the presentence investigation report in order to file his state and federal post-conviction motions.
17
973752, at *2 (S.D.N.Y. July 14, 2000) (finding that petitioner’s inability to obtain necessary
court papers for more than two years was not an extraordinary circumstance); cf. Jenkins v.
Greene, 630 F.3d 298 (2d Cir. 2010) (holding that requirement of affidavit from counsel or
explanation for inability to present affidavit, in support of an ineffective assistance of counsel
claim, is not an extraordinary circumstance warranting tolling; “petitioner could have timely
filed . . . accompanied by a sworn statement why he was unable to obtain the attorney’s
affidavit).
In sum, petitioner has not demonstrated any “extraordinary circumstances” following
the February 2008 expiration of the limitations period, much less any such circumstance that
prevented him from filing a timely habeas petition.
2.
Petitioner has not demonstrated that he acted with reasonable
diligence.
Nor has petitioner established that he acted “with reasonable diligence throughout the
period he seeks to toll.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). “If the person
seeking equitable tolling has not exercised reasonable diligence in attempting to file after the
extraordinary circumstances began, the link of causation between the extraordinary
circumstances and the failure to file is broken, and the extraordinary circumstances therefore
did not prevent timely filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)); see
Pace, 544 U.S. at 419 (“Under long-established principles, petitioner’s lack of diligence
precludes equity’s operation.”); Hizbullahankhamon, 255 F.3d at 75 . This Court has stated
that “[a] period of delay greater than one year normally does not demonstrate due diligence.”
Rodriguez, 2015 WL 5968837, at *7 (citing Morton v. Ercole, No. 1:08-Civ-252, 2010 WL
890036, at *6 (S.D.N.Y. Mar. 10, 2010)).
18
Petitioner includes as exhibits letters he sent to counsel regarding the notice of appeal
and his case file; correspondence with and/or filings in the Tompkins County Court and Third
Department; FOIL requests for documents and other evidence; and Article 78 proceedings
when his FOIL requests proved unsuccessful. See Aff. Ex. B, D-F, H. However, petitioner’s
pursuit of his legal rights shows that no extraordinary circumstances stood in the way of his
filing a timely habeas petition in this Court. “[C]ourts have regularly held that a petitioner is
not entitled to equitable tolling when his conduct indicates that he was able to investigate and
pursue other legal avenues during the time period at issue.” De Los Santos v. Ercole, No.
07-CV-7569, 2013 WL 1189474, at *7 (S.D.N.Y. Mar. 22, 2013). Despite having received his
case file from trial counsel in October 2006 and having learned that no notice of appeal had
been filed as of February 28, 2007, petitioner waited until September 8, 2015, more than
seven years after the federal statute of limitation had expired, to file his § 440.10 motion in
Thompkins County Court. Aff. Ex. 1 at 1; CR I 320. Only after that motion was denied on
February 3, 2016, Aff. Ex, 1 at 3; SCR I at 322, and the Third Department denied permission
to appeal, SCR I at 323, did petitioner file the instant habeas petition, on June 21, 2017. By
this point, more than eleven years had elapsed since petitioner claimed to have been able to
start his legal work; over ten years had passed since he was last notified that no notice of
appeal had been filed, triggering the running of the statute of limitations; and nine years had
gone by since the AEDPA limitation period expired. “Petitioner is utterly unable to account
for th[is] significant and substantial delay[ ].” LaChance v. Cunningham, No. 9:09-CV-901,
2009 WL 81222, at *6 (N.D.N.Y. Jan. 9, 2009); see id. (“Even if he was initially provided with
incorrect advice concerning the waiver of appellate rights contained in his plea agreement,
Petitioner has not offered an adequate explanation as to . . . why he waited nearly a year
19
after the conclusion of the state court collateral proceedings before filing the instant action.”);
Cf. Holland, 560 U.S. at 653 (finding petitioner acted diligently where petitioner filed pro se
habeas petition the same day he learned, through his own efforts, that his state appeal had
been denied); Diaz, 515 F.3d at 155 (finding petitioner acted diligently when he filed federal
habeas petition the day after receiving, following his inquiry, unreasonably delayed notice of
court order denying his application for leave to appeal).
C.
Petitioner Has Not Made a Credible Showing of Actual Innocence.
1. Actual Innocence
Courts have also recognized an equitable exception to the one-year statute of
limitations under 28 U.S.C. §2244(d)(1) in cases where a petitioner can prove actual
innocence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). It is important to stress that
“[o]nce guilt is . . . established . . . a federal habeas court will not relitigate the question of
guilt for a state defendant who protests his actual innocence . . . [r]ather, a f ederal habeas
court will review state convictions for constitutional error.” Hyman v. Brown, 927 F.3d 639,
656 (2d Cir. 2019).
An actual innocence claim will be recognized only in a “narrow class of truly
extraordinary cases [where a petitioner can] present[] credible and com pelling claims of
actual innocence.” Hyman, 927 F.3d at 656 (citing Schlup v. Delo, 513 U.S. 298, 315 (1995))
(internal quotation marks omitted); see also House v. Bell, 547 U.S. 518, 538 (2006) (noting
that the actual innocence gateway standard is “demanding and permits review only in the
extraordinary case.”) (internal quotation marks omitted). “The petitioner’s burden in making a
gateway showing of actual innocence is deliberately demanding.” Hyman, 927 F.3d at 656
(citing cases). “To be credible, such a claim requires petitioner to support his allegations of
20
constitutional error with new reliable evidence–whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts or critical physical evidence–that was not presented at trial.”
Schlup, 513 U.S. at 324; see also Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012); Whitley
v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). In addition, “prisoners asserting innocence
as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S. at
327);12 see also Doe, 391 F.3d at 160-62.
“The standard’s demand for evidence of innocence references factual innocence, not
mere legal insufficiency.” Hyman, 927 F.3d at 657 (internal quotation marks and citations
omitted). In clarifying what this standard requires, the Second Circuit explained:
a reviewing court assessing the probability of actual innocence is
not limited to the trial record. To the contrary, it “must consider all
the evidence, old and new, incriminating and exculpatory,” House
v. Bell, 547 U.S. at 538 . . . (internal quotation marks omitted), and,
in doing so, “is not bound by the rules of admissibility that would
govern at trial,” Schlup v. Delo, 513 U.S. at 327 . . . This is
because, at the gateway stage of inquiry, a habeas court’s task is
not to identify trial error or to delineate the legal parameters of a
possible new trial. It is to identify those cases in which a
compelling showing of actual innocence would make it a manifest
injustice to maintain conviction unless it was free of constitutional
error. Thus, incriminating evidence obtained in the course of an
unlawful search, or custodial admissions made in the absence of
Miranda warnings, may well be inadmissible at trial. Nevertheless,
such evidence is properly considered in assessing factual
innocence, with the manner of procurement informing reliability and
relevance and, therefore, weight.
12
Schlup and House involved procedurally defaulted claims. See McQuiggan, 569 U.S. at 386. The
Supreme Court in McQuiggan held that “actual innocence, if proved, serves as a gateway through which a petitioner
may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, the
expiration of the statute of limitations.” Id.
21
Id. at 658; see also Bousley v. United States, 523 U.S. 614, 623-24 (1998) (“‘[A]ctual
innocence’ means factual innocence, not mere legal insufficiency.”) (citations omitted).
2. Discussion
In support of his claim of actual innocence, petitioner states that he has “present[ed]
‘new,’ or to be precise, ‘newly presented’ evidence, the evidence the district attorney’s agent,
the Ithaca Police (namely Detective Michael Gray), tampered with, erasing all evidence of
police misconduct, in denying petitioner of his repeated requests for counsel and telephone
calls.” Aff. at 12; Reply at 1. Specifically, petitioner alleges that one hour from his videotaped confession was deleted and that, within that one hour of footage, law enforcement
officials would have been shown ignoring petitioner’s repeated requests for counsel and a
phone call and engaging in an unconstitutional two-step interrogation procedure. Aff. at 1213. Petitioner argues that his interrogation began while he was still incoherent from binging
on drugs and alcohol, with officers suggesting incriminating scenarios to him until he
confessed. Id.; Reply at 12. At this point, the recording picked up to show the officers giving
petitioner his Miranda warnings and continuing to ask him questions, knowing what he had
previously confessed to, and baiting him to confess again. Aff. at 13; Reply at 12. Petitioner
asserts that one can tell the tape has been tam pered with because the video produced by
the People and used during trial lacks a time and date stamp. Id. at 17. Petitioner also
states he was intimidated and threatened by the police until he consented to a strip search
and DNA collection. Id. at 15.
Petitioner also argues that, prior to his plea hearing, he “was prescribed heavy
psychotropic medications,” and that, during his plea hearing, the “Judge . . . never asked
petitioner if he was taking any medications[.]” Aff. at 18; see also Reply at 10 (arguing that
22
the psychotropic medications were designed to “discourage petitioner from proceeding to
trial”). Petitioner contends that the Judge was also aware he suffered from a traumatic brain
injury and had requested a consultation from a forensic psychologist; accordingly, the Judge
should have made an on-the-record determination regarding his capacity in order for his
guilty plea to be valid. Aff. at 18.
Petitioner’s arguments are problematic for several reasons. First, assuming this
evidence exists and is exactly as petitioner claims it to be, it would not be compelling enough
to show actual innocence. In order to satisfy the actual innocence bar, “the new evidence
[must] directly support[] petitioner’s factual innocence by indicating either that he did not
commit, or could not have committed, the crimes of conviction.” Hyman, 927 F.3d at 665.
The petitioners in McQuiggan, House, Schlup, and Rivas provided the courts with such
evidence. See McQuiggan, 569 U.S. at 389 (affidavits pointing to another suspect); House,
547 U.S. at 540, 543-44 (new DNA evidence, testimony regarding possible contamination of
evidence, and evidence regarding a different suspect indicating petitioner did not kill the
victim, instead someone else had); Schlup, 513 U.S. at 307, 331 (sworn statements of
eyewitnesses identifying different criminal participants and an affidavit providing petitioner
with an alibi at the time of the crime, supporting defendant’s innocence); Rivas, 687 F.3d at
528, 543-44 (affidavit from expert in forensic pathology identifying time of death of victim to
be at a time when petitioner had an unchallenged alibi; thus petitioner could not have
committed the murder). Here, petitioner did not.
Even crediting petitioner’s allegations that law enforcement improperly questioned
him, that he was coerced into providing DNA, and that his allocution was not as thorough as
it could have been, this evidence fails to establish that petitioner did not commit the rape to
23
which he pled guilty or that he could not have committed the rape because he was elsewhere
or someone else did it. Petitioner’s arguments in support of actual innocence echo his
claims for entitlement to habeas relief. This is insufficient to satisfy the demanding standard
for actual innocence. In short, petitioner has not provided any evidence that he is “factually,”
as opposed to legally, innocent of the rape charge. Bousley, 523 U.S. at 623-24 ; Perez, 502
F. Supp. 2d at 306 (“To show actual innocence, a petitioner must prove that he is factually
innocent, not by merely showing legal insufficiency.”).
Further, even if petitioner made claims that he was factually innocent on the face of
the petition and affidavit, the totality of the evidence would suggest otherwise. Petitioner’s
arguments that his confession and allocution should not be considered are irrelevant to the
present analysis: a court conducting an actual innocence analysis shall consider all evidence,
even that which was illegally admitted or obtained, with proper consideration for the weight of
that evidence given relevance and reliability. Hyman, 927 F.3d at 658-59 (explaining Second
Circuit interpretation of what evidence is permissible to review during course of actual
innocence claim). When this Court considers all the relevant evidence, it is clear that
petitioner has not made the showing necessary to pass through the narrow gateway for
federal habeas review of his barred claims.
Here, petitioner unequivocally pled guilty to rape. SCR I at 1-13. The court asked if
petitioner had adequate time to discuss the plea with his attorney, petitioner agreed that he
had. Id. at 6. The court asked if petitioner had been made any promises or been coerced
into the plea, petitioner indicated he had not. Id. The court emphasized that petitioner’s
case was on the eve of trial, and at that trial he would be able to enter evidence, present a
defense, and cross-examine witnesses, as well as challenge any mistakes that the trial judge
24
may have made, petitioner stated he still wished to plead guilty. Id. at 7-8. The court told
petitioner he would be severely limited in his ability to appeal his plea, the petitioner
acknowledged understanding of that fact. id. at 8-9. Then the court spoke directly to
petitioner’s substance abuse on the night in question:
THE COURT:
[Petitioner], is it your position that you were
under the influence of alcohol or otherwise
impaired at the time this crime occurred?
[PETITIONER]:
Yes, Your Honor.
THE COURT:
Are you aware that although alcohol is not a
defense, a technical defense to this crime, that
your attorney might be able to or would be
entitled to raise alcohol, alcohol intoxication on
your behalf at trial, and try to convince a jury
that that impaired your ability such that you
were unable to form the necessary intent to
commit this crime? There may be other similar
kinds of defenses available to you.
Do you understand that by this plea you’re
waiving any of those kinds of challenges?
[PETITIONER]:
Yes, Your Honor.
Id. at 9; see also id. at 135 (pre-sentence investigation report indicating that any possible
brain damage suffered by petitioner as the result of his prior injury is not offered “as an
excuse for [petitioner’s] egregious behavior, only as a further explanation for why he may
have engaged in such aberrant actions.”). Petitioner then went on to tell the court what
happened on the night in question, specifically petitioner “forced [the victim from her
apartment] in[to his] apartment and forced her to have intercourse with [him] . . . by
intimidation,” via threats with a knife. Id. at 10-12. Petitioner emphasized that the behavior
was not consensual. Id. at 11-12.
During the sentencing hearing, petitioner again addressed the court, the victim, and
25
his family, stating that he would “like to apologize to the young woman who [he] brought this
nightmare upon. . . [he could] not express in words how sorry [he was and e]very day [he]
pray[ed] to God to ease [the victim’s] pain,” and would also “like to apologize to [his] family
who has also been forced to endure this nightmare . . . hop[ing that] one day [his] children
[could] forgive [him] for missing their childhood.” SCR I at 30-31. Petitioner concluded by
stating he was “ready to accept . . . responsibility for [his] actions.” Id. at 31. The sentencing
judge then commenced with his rationale, identifying petitioner’s substance abuse and brain
injury but stating that the injury was over sixteen years old and had never required treatment;
therefore, blaming alcohol and his condition was unpersuasive. Id. at 32-33. Further, the
court explained that it
lost all sense of mercy . . . [when petitioner] acknowledg[ed] that at
some point [he] came to [his] senses . . . that at some point in the
morning . . . [petitioner] began talking to [the victim] about how
terrible this was, how sorry [petitioner] were [sic], and under
different circumstances what could be different, and then
proceeded to take her upstairs and rape her and sodom ize her
more.
Id. at 33. The court went further on to say that “[a]t some point the alcohol wore off. At some
point [petitioner] was aware of [his] behavior, and yet it continued.” Id. at 34.
Despite all of this, as the state court identified in its decision denying petitioner’s 440
motion, petitioner’s guilty plea still provided him with “a favorable result of a lesser sentence
than permitted under the law” probably at least in part due to petitioner’s counsel’s action in
“obtaining a detailed, independent sentencing report in an effort to present the court with
mitigating factors to reduce the potential sentence.” SCR I at 321-22.
In sum, the totality of the evidence demonstrates that petitioner repeatedly admitted to
and apologized for committing the underlying acts for which he was accused. While no jury
26
was impaneled because petitioner pled guilty to a negotiated agreement and lesser
sentence, to the extent such information was presented to a jury, this Court finds that it is
more likely than not that reasonable jurors would find petitioner guilty beyond a reasonable
doubt. Accordingly, petitioner’s claims of actual innocence are insufficient to pass through
the narrow gateway for federal review of a barred claim.13
V.
CONCLUSION
WHEREFORE, it is
ORDERED that the petition (Dkt. No. 1) is DENIED AND DISMISSED IN ITS
ENTIRETY; and it is further
ORDERED that no Certificate of Appealability ("COA") shall issue because petitioner
has failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C.
§ 2253(c)(2) requires;14 and it is further
ORDERED that any further request for a Certificate of Appealability must be
addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on the parties,
and serve an updated docket sheet upon petitioner, in accordance w ith the Local Rules.
13
In addition, the delay in filing both petitioner’s state and federal petitions undercuts petitioner’s claim that
he is actually innocent. See McQuiggan, 569 U.S. at 386-87; see also id. at 401 (reiterating that “untimeliness . .
. does bear on the credibility of evidence proffered to show actual innocence.”). In McQuiggan, the petitioner waited
over eleven years after his conviction became final before filing his federal habeas petition. Id. at 389. Similarly,
petitioner here filed his federal petition ten years after learning that no notice of appeal had been filed and his
conviction had became final, and nine years after the expiration of the statute of limitations. See Pet. at 1; see also
SCR I at 312 (“As far as w[a]iting 10 years to bring [the] 440 motion? It has taken that long to repeatedly request
documents, file F.O.I.L. appeals, and Article 78 motions to try to obtain the documents withheld from [petitioner], that
were requested in discovery.”).
14
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir.
2007) (holding that if the court denies a habeas petition on procedural grounds, “the certificate of appealability must
show that jurists of reason would find debatable two issues: (1) that the district court was correct in its procedural
ruling, and (2) that the applicant has established a valid constitutional violation” (emphasis in original)).
27
IT IS SO ORDERED.
Dated: October 29, 2019
Syracuse, NY
28
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