Contreras v. Terrell

Filing 7

MEMORANDUM OPINION & ORDER that Contreras' 12/21/10 petition is denied as untimely. In addition, the Court declines to issue a certificate of appealability...The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 7/12/11) Copies Sent By Chambers. (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
FRANCIS CONTRERAS,
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Plaintiff,
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-v:
DUKE TERRELL, Warden, Metropolitan
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:
Detention Center,
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Respondent.
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:
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10 Civ. 6583 (DLC)
MEMORANDUM OPINION
& ORDER

DENISE COTE, District Judge:
On July 16, 2010, Francis Contreras (“Contreras”),
appearing pro se, brought a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 seeking a twenty-four month sentence
reduction and immediate release.

The original judgment against

Contreras became final on April 24, 2008, ninety days after the
entry of the order of the Second Circuit on January 24, 2008
that affirmed the judgment of conviction.
States, 537 U.S. 522, 525-27 (2003).

See Clay v. United

Contreras had until April

24, 2009 –- one year from the date the judgment of conviction
became final -- to file a timely petition under § 2255.
Contreras did not file his petition until July 16, 2010.
On September 20, Contreras was ordered to submit by
December 3, 2010 an amended petition that would, inter alia,
allege facts demonstrating why his petition was timely, or if

not, why the applicable limitation period should be equitably
tolled.

On December 21, Contreras filed a document titled

“Amended Motion,” setting forth the reasons why he believes he
is entitled to equitable tolling.

Contreras appears to claim

that he is entitled to equitable tolling because he suffered
memory loss due to a lack of sunlight and fresh air while
incarcerated at the Metropolitan Detention Center.
Equitable relief, in the form of tolling, may be “awarded
in the court's discretion only upon consideration of all the
facts and circumstances.”

Vitarroz Corp. v. Borden, Inc., 644

F.2d 960, 965 (2d Cir. 1981).

In order to equitably toll the

one-year period of limitations, Contreras “must show that
extraordinary circumstances prevented him from filing his
petition on time.”

Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.

2000) (citation omitted).

Additionally, “the party seeking

equitable tolling must have acted with reasonable diligence
throughout the period he seeks to toll.”
omitted).

Id. (citation

The Second Circuit has held that while mental illness

can warrant equitable tolling of the statute of limitations, the
“burden of demonstrating the appropriateness of equitable
tolling for mental illness lies with the plaintiff; in order to
carry this burden, she must offer a particularized description
of how her condition adversely affected her capacity to function

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