Ocasio v. Lee

Filing 30

MEMORANDUM OPINION AND ORDER: In short, it is clear from the fact of Ocasio's Petition (and attached papers) that he is time-barred from habeas relief. See Wims, 225 F.3d at 190-91. Accordingly, the Petition must be and is dismissed. As Ocas io has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); see also, e.g., Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). In addition, t he Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court is directed to mail a copy of this Opinion and Order to Ocasio and close the case. (Signed by Judge Jesse M. Furman on 2/2/2017) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RONALD OCASIO,
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:
Petitioner,
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:
-v:
:
WILLIAM LEE,
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:
Respondent.
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02/02/2017
14-CV-6097 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
In 1994, Petitioner Ronald Ocasio was convicted in state court of second degree murder
and sentenced principally to a prison term of twenty-two years to life. (Docket No. 13 (“Am.
Pet.”) 1). Proceeding pro se, he now challenges that conviction through a petition for the writ of
habeas corpus brought pursuant to Title 28, United States Code, Section 2254, arguing primarily
that his counsel was ineffective for failing to perfect his appeal. (See id. at 2). It is hard to see
the point of the challenge, as Ocasio was convicted of various federal offenses four years after
his state conviction and is serving a federal sentence of life plus forty-five years’ imprisonment
that would remain in effect even if he were successful here. But Ocasio’s petition fails for a
simple reason other than pointlessness: Coming eighteen years after his state conviction became
final, it is patently untimely. Accordingly, and for the reasons stated below, the Petition must be
and is dismissed.
BACKGROUND
On July 14, 1994, judgment was entered in New York Supreme Court, Bronx County,
convicting Ocasio, after a jury trial, of second-degree murder and sentencing him principally to a

prison term of twenty-two years to life. (Am. Pet. 2). Ocasio retained Steven R. Kartagener,
Esq., to represent him on appeal. (Id. at 3). Kartagener filed a notice of appeal, which, although
dated August 12, 1994, was stamped as received by the Supreme Court on August 16, 1994.
(Id., Ex. 1 at 30). Thereafter, however, the appeal was left to languish as Kartagener never filed
a brief or appendix; nor did the appellate court ever formally dismissed it. (Am. Pet. 4).
According to Kartagener, he and Ocasio jointly decided not to pursue the state-court appeal
because of the intervening federal indictment, which eventually resulted in Ocasio’s conviction
on multiple counts of murder, attempted murder, and narcotics trafficking and the sentence of
life plus forty-five years’ imprisonment. (Docket No. 19 (“Chamoy Decl.”) Ex. 1 at 13). As
Kartagener explained, Ocasio “acknowledged that it made absolutely no sense for him to proceed
with his state-court appeal unless and until” his federal conviction was vacated. (Id. at 3).
Consistent with Kartagener’s description, Ocasio focused his efforts in the years
following his convictions on obtaining relief from his federal conviction and sentence, all to no
avail. Assisted by Kenneth D. Wasserman, Esq., he filed a direct appeal to the United States
Court of Appeals for the Second Circuit, which affirmed his conviction on September 29, 2000.
See United States v. Carrillo, 229 F.3d 177 (2d Cir. 2000). Thereafter, assisted by Kartagener,
Ocasio filed a motion to vacate his federal conviction pursuant to Title 28, United States Code,
Section 2255. (Chamoy Decl., Ex. 1 at 29). On August 9, 2012, the Honorable Debra A. Batts,
United States District Judge for this District, denied the motion. See Ocasio v. United States,
No. 08-CV-1305 (DAB), 2012 WL 3245419, at *1 (S.D.N.Y. Aug. 9, 2012). Between 1994 and
2012, Ocasio made no effort — either pro se or through counsel — to pursue his state appeal.
Nor is there any indication that he asked Kartagener or a court about the status of his state appeal
prior to 2012.

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On September 25, 2012, more than eighteen years after his notice of appeal was filed,
Ocasio wrote to the Supreme Court of the State of New York, Appellate Division, First
Department (“First Department”) to inquire about the status of his state appeal. (Am. Pet., Ex. 1
at 37). He wrote again on October 16, 2012 (id. at 38), and December 11, 2012 (Chamoy Decl.,
Ex. 3). On February 13, 2013, having received no response to his letters, Ocasio filed a petition
for a writ of error coram nobis in the First Department, alleging that he had received ineffective
assistance of counsel because Kartagener had abandoned his direct appeal. (Am. Pet., Ex. 1 at 6,
11). The First Department treated Ocasio’s letters as a motion for an extension of time to file a
notice of appeal, and on February 20, 2014, the First Department denied that motion and his writ
of error coram nobis. (Am. Pet. 50). Thereafter, Ocasio requested leave to appeal the First
Department’s rulings, which the New York State Court of Appeals denied on May 27, 2014.
(Id., Ex. 3 at 44).
Ocasio filed the present Petition on July 8, 2014. (Docket No. 1). On December 2, 2014,
the Honorable Loretta A. Preska, then Chief Judge, ordered Ocasio to amend his Petition to allege

facts showing “why his petition is timely” and any “facts that show that he has been pursuing his
rights diligently and that some extraordinary circumstance prevented him from timely submitting
his petition.” (Docket No. 6, at 4). On April 1, 2015, Ocasio filed the operative Amended
Petition. Liberally construed, it presents three arguments for why it should be deemed timely:
(1) because his conviction is still not final (see id. at 13); (2) because the First Department’s lack
of decision on his appeal was an impediment to filing and thus tolled the limitations period (see
id. at 14); and (3) because he did not discover that Kartagener had failed to perfect the appeal
until one year before filing this petition (see id. at 17). Petitioner also argues that he is entitled to
equitable tolling. (See id. at 8-11).

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DISCUSSION
With the passage of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, on April 24, 1996, Congress established a
one-year statute of limitations for the filing of a habeas petition by a person in custody pursuant
to a state court conviction. See 28 U.S.C. § 2244(d)(1). The one-year period runs from the latest
of the following four dates:
(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 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.
Id.; see also id. § 2244(d)(2) (providing that “time during which 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”). A prisoner whose
conviction became final prior to AEDPA’s effective date of April 24, 1996, was granted a
one-year “grace period” — to April 24, 1997 — in which to file a habeas petition absent
a basis to toll the deadline. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
Applying those rules here, Ocasio’s Petition is plainly untimely. As an initial
matter, Ocasio’s conviction became final on August 15, 1994. That is because, under
New York law, he had until Monday, August 15, 1994 — the first business day after
thirty days from the date upon which sentence was imposed (July 14, 1994) — to file a
notice of appeal. See NYCPL § 460.10(1)(a); see also N.Y. Gen. Const. Law § 25-a

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(providing that when a filing deadline falls on a weekend, “such act may be done on the
next succeeding business day”). Ocasio did not file his notice of appeal until August 16,
1994. Accordingly, his conviction became “final” for purposes of Section 2244(d)(1)(A)
on August 15, 1994, see, e.g., Gonzalez v. Thaler, 132 S. Ct. 641, 644 (2012); Bethea v.
Girdich, 293 F.3d 577, 578 (2d Cir. 2002); accord People v. Varenga, 26 N.Y.3d 529,
532 (2015) (“[W]here a defendant does not take a timely direct appeal from the
judgment, and does not move for leave to file a late notice of appeal pursuant to CPL
460.30(1), the judgment becomes final 30 days after sentencing, on the last day that a
defendant has an inviolable right to file a notice of appeal pursuant to CPL
460.10(1)(a).”), and he had until April 24, 1997, to file his habeas petition, see Ross, 150
F.3d at 103.1 Because he did not file his Petition (or any state post-conviction motions)
before April 24, 1997, it is time barred unless tolling is applicable. See, e.g., Evans v.
Senkowski, 228 F. Supp. 2d 254, 260 (E.D.N.Y. 2002) (“It is important to note that
AEDPA’s tolling provision does not allow the one-year period to run anew each time a
post-conviction motion is ruled upon. Instead, the statute merely excludes from the
calculation of the one-year period any time during which post-conviction relief is
pending.”).
Ocasio is also not entitled to statutory tolling under Section 2244(d)(1)(B). That
provision allows a petitioner to file within one year of “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
Ocasio’s letters to the First Department, which the latter construed as a request to deem
his notice of appeal timely or an extension of time to file his appeal, did not “restart” his time to
file under AEDPA. See, e.g., Bethea, 293 F.3d at 578.
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action.” The existence of such an impediment is akin to “official interference.” Acosta v.
Artuz, 221 F.3d 117, 125 (2d Cir. 2000). Here, there was no state-created impediment to
filing a federal habeas petition. Kartagener’s failure to timely file the notice of appeal (or
perfect the appeal thereafter) obviously does not qualify. See, e.g., Goodwin v. Pallito,
No. 2:14-CV-110 (WKS), 2015 WL 778613, at *3 (D. Vt. Feb. 24, 2015) (“[E]ven
assuming that [the petitioner’s] counsel was incompetent or ineffective in failing to
advise him of AEDPA’s limitations period or in failing to file a [state post-conviction]
petition, that does not amount to a State impediment under § 2244(d)(1)(B).”). And,
despite Ocasio’s argument to the contrary (Am. Pet. 14), the alleged failure of the First
Department to notify him that his direct appeal was untimely did not prevent him from
filing a federal habeas petition, let alone do so in a manner that violated either the
Constitution or federal law. Put simply, Ocasio’s conviction became final, by operation
of law, on August 15, 1994. The fact that the First Department did not formally dismiss
Ocasio’s untimely appeal did not prevent Ocasio from discovering that or from timely
filing the Petition.
Nor does Section 2244(d)(1)(D) — the only other provision upon which Ocasio
relies — save the Petition from dismissal. That provision “resets the limitations period’s
beginning date, moving it from the time when the conviction became final . . . to the later
date on which the particular claim accrued.” Chettana v. Racette, No. 9:15-CV-0028
(MAD), 2016 WL 447716, at *5 (N.D.N.Y. Feb. 4, 2016) (internal quotation marks
omitted); see also Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (analyzing the
“parallel” provision of 28 U.S.C. § 2255). “The determination of the date on which the
factual predicate for a habeas claim is first discoverable is a ‘fact-specific’ inquiry which

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requires a district court to analyze the factual bases of each claim and to determine when
the facts underlying the claim were known, or could with due diligence have been
discovered.” Rivas v. Fischer, 687 F.3d 514, 534 (2d Cir. 2012). To determine if facts
could have been discovered through the exercise of due diligence, a district court’s
“proper task . . . is to determine when a duly diligent person in [the] petitioner’s
circumstances would have discovered” those facts. Wims, 225 F.3d at 190. Here, that
requires Ocasio to show that a “duly diligent person” in his circumstances would not
“have discovered that no appeal [or notice of appeal] had been filed.” Id.
Ocasio cannot make that showing. More to the point, he cannot show that a “duly
diligent person” in his circumstances would have not discovered the failure to file a
timely notice of appeal or failure to perfect the appeal prior to April 5, 2012, which
represents one year before his Petition was filed, excluding the 320 days during which his
state coram nobis petition was pending (February 19, 2013, to May 27, 2014) and the
limitations period was thus tolled pursuant to Section 2244(d)(2). See Wims, 225 F.3d at
190. Notably, Ocasio does not specifically allege that he inquired of Kartagener or the
state court about the status of his direct appeal between 1994 and 2012 — a period of
eighteen years. If anything, the information Ocasio provides establishes that he was
focused exclusively on attacking his federal conviction (and its longer sentence). In the
letters he wrote to Kartagener between April 2008 and June 2012, he inquired about his
Section 2255 petition, but never once mentioned or inquired about his state court appeal.
(Am. Pet., Ex. 3 at 51-59). Similarly, in Ocasio’s affidavit (which appears to be missing
the first page), he affirms only that from 2000 to 2012, Kartagener did not respond to
communications about his Section 2255 petition. (Id. at 54). Ocasio states vaguely that,

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in response to a lack of communication from Kartagener, he “began to investigate the
circumstance [sic] surrounding [his] Federal case and [Kartagener’s] delay in filing [the]
State Direct Appeal [sic].” (Id. at 55). But such statements are not enough to carry
Ocasio’s burden to show due diligence in the eighteen years between when his state
conviction became final and when April 5, 2012. See, e.g, McPhee v. Griffin, No. 13CV-4660 (PKC), 2014 WL 5427667, at *3 (E.D.N.Y. Oct. 24, 2014) (holding that the
petitioner’s ambiguous statements failed to show that he had acted with due diligence
during the twenty-five-year delay between the attorney’s failure to file notice of appeal
and his habeas petition); Plowden v. Romine, 78 F. Supp. 2d 115, 119 (E.D.N.Y. 1999)
(holding that the petitioner’s seventeen-month delay in inquiring about the status of his
appeal did not show reasonable due diligence).
For similar reasons, there is no basis for equitable tolling of the statute of limitations,
which is available only in “rare and exceptional circumstances.” Green v. United States, 260
F.3d 78, 82 (2d Cir. 2001). To be eligible for equitable tolling, Ocasio must show that he
“pursu[ed] his rights diligently” and that “some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 632 (2010) (internal quotation marks
omitted). When assessing whether a petitioner faced “extraordinary circumstances,” courts ask
not whether the circumstance was “unusual . . . , but rather how severe an obstacle it [posed] for
the prisoner endeavoring to comply with AEDPA’s limitations period.” Diaz v. Kelly, 515 F.3d
149, 154 (2d Cir. 2008). The extraordinary circumstance must be a type of “external obstacle”
that was beyond the petitioner’s control. Menominee Indian Tribe of Wisconsin v. United States,
136 S. Ct. 750, 756 (2016) (internal quotation marks and brackets omitted). Moreover, a
petitioner must “demonstrate a causal relationship between the extraordinary circumstances on

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which the claim for equitable tolling rests and the lateness of his filing, a demonstration that
cannot be made if the petitioner, acting with reasonable diligence could have filed on time
notwithstanding the extraordinary circumstances.” Valverde v Stinson, 224 F.3d 129, 134 (2d
Cir. 2000); see also, e.g., Rivas, 687 F.3d at 538 (noting that to qualify for equitable tolling, a
petitioner must show, among other things, “that some extraordinary circumstance stood in his
way and prevented timely filing”).
Applying those standards here, Ocasio plainly cannot avail himself of equitable tolling.
First, for the reasons stated above, he does not — and cannot — establish that he pursued his
rights diligently “throughout the period to be tolled.” Harper v. Ercole, 648 F.3d 132, 136 (2d
Cir. 2011); cf. Peck v. United States, No. 03-CR-496 (TJM), 2006 WL 3762003, at *4 (N.D.N.Y.
Dec. 20, 2006) (holding that the petitioner’s decision to focus on a state appeal rather than a
federal appeal did not demonstrate due diligence with regard to the federal appeal). Put simply,
there is no reasonable explanation for Ocasio’s failure to even inquire about the status of his state
appeal for over eighteen years (except for the one proffered by Kartagener — that Ocasio made
the rational decision to focus on attacking his federal conviction and sentence — which would
obviously not justify the delay). Second, Ocasio fails to identify an “extraordinary
circumstance” that stood in his way and “prevented timely filing.” Holland, 560 U.S. at 632. At
most, Ocasio’s submissions can be read to point to Kartagener’s failures to file a timely state
appeal or perfect that appeal as the circumstances that prevented him from timely filing the
Petition. (See Am. Pet. 9; Docket No. 28, at 7). But “garden variety attorney error” — even
where it prevents timely filing of a federal habeas petition — doe not “on its own rise to the level
of extraordinary circumstances.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011) (emphasis
in original). And here, Kartagener’s failures did not pose any obstacle to the timely filing of a

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federal habeas petition, let alone an obstacle that lasted for eighteen years. See, e.g., Walker v.
Unger, No. 9:10-CV-1241 (TJM/ATB), 2011 WL 3240440, at *4 (N.D.N.Y. Apr. 20, 2011)
(“The failure to file a notice of appeal is not a rare or exceptional circumstance, nor was
petitioner prevented from filing his petition in a timely manner.”); M.P. v. Perlman, 269 F. Supp.
2d 36, 39 (E.D.N.Y. 2003) (holding that counsel’s alleged ineffectiveness in filing a request for
leave to appeal in state court did not interfere with the petitioner’s ability to timely file a federal
habeas petition).
CONCLUSION
In short, it is clear from the fact of Ocasio’s Petition (and attached papers) that he is timebarred from habeas relief. See Wims, 225 F.3d at 190-91. Accordingly, the Petition must be and
is dismissed. As Ocasio has not made a substantial showing of the denial of a constitutional
right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); see also, e.g.,
Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). In addition, the Court certifies,
pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Opinion
and Order would not be taken in good faith, and in forma pauperis status is thus denied. See
Coppedge v. United States, 369 U.S. 438, 445 (1962).
The Clerk of Court is directed to mail a copy of this Opinion and Order to Ocasio and
close the case.

SO ORDERED.
Date: February 2, 2017
New York, New York

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