Favourite v. Colvin
Filing
21
MEMORANDUM OPINION & ORDER: The Court concludes that Favourite's petition for writ of habeas corpus under 28 U.S.C. § 2254 was filed outside the statutory one-year period of limitations established by 28 U.S.C. § 2244(d)(1). Further , the Court concludes that petitioner is not entitled to equitable tolling. Accordingly, Favourite's petition is DISMISSED as untimely. The Clerk of Court is directed to terminate the present action. (Signed by Judge Katherine B. Forrest on 9/12/2017) Copies Mailed By Chambers. (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RIVIN FAVOURITE,
:
:
Petitioner,
:
:
-v:
:
JOHN COLVIN, SUPERINTENDENT FIVE
:
POINTS,
:
:
Respondent.
:
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 12, 2017
16-cv-7086 (KBF)
MEMORANDUM
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
Rivin Favourite, currently incarcerated at the Green Haven Correctional
Facility in Stormville, New York, brings this petition for a writ of habeas corpus
under 28 U.S.C. § 2254. On December 21, 2009, Favourite was convicted of robbery
and assault in New York state court, and was sentenced to twenty-three years of
incarceration. Favourite’s petition argues that the trial court erred in admitting
certain evidence, and that both his trial and appellate counsel were ineffective.
Because Favourite’s petition for a writ of habeas corpus is untimely under 28
U.S.C. § 2244(d)(1), the petition is DENIED. The Court does not rule on the merits
of Favourite’s petition.
I.
BACKGROUND
On December 21, 2009 Rivin Favourite (“Favourite” or “petitioner”) was
convicted of first-degree robbery and second-degree assault following a jury trial in
the New York Supreme Court, Bronx County (“Supreme Court”). (Pet. for Writ of
Habeas Corpus (“Pet.”), ECF No. 1, Ex. 1 at 22.) He was sentenced as a second
violent felony offender to a total of twenty-three years of incarceration. (Id.) What
follows is a brief overview of the facts relevant to the Court’s resolution of this
petition.1
Following conviction, Favourite filed a timely appeal in the New York
Supreme Court, Appellate Division, First Department (“Appellate Division”),
broadly arguing that (1) the verdict was against the weight of the evidence, (2) the
sentence was excessive, (3) the trial court erred in various respects, and (4)
Favourite’s trial counsel was ineffective. (Pet. at 2.) The appellate court
unanimously affirmed Favourite’s conviction and sentence on September 27, 2012.
People v. Favourite, 98 A.D.3d 922 (N.Y. App. Div. 2012). The New York Court of
Appeals (“Court of Appeals”) denied Favourite’s request for leave to appeal on
March 5, 2013. People v. Favourite, 988 N.Ed.2d 532 (N.Y. 2013).
Favourite subsequently moved for a writ of error coram nobis on January 22,
2014. (Decl. of Ramandeep Singh in Opp’n (“Singh Decl.”), ECF No. 11, Ex. 5.) The
Appellate Division denied that petition on June 5, 2014, and the Court of Appeals
denied Favourite’s application for leave to appeal on September 30, 2014. (Pet., Ex.
1 at 26.); see also People v. Favourite, 24 N.Y.3d 960 (N.Y. 2014). Favourite then
filed a motion to vacate his conviction under N.Y. Crim. Proc. Law § 440.10 on
January 7, 2015. (Singh Decl., Ex. 6.) The Supreme Court denied that petition on
Though they are not relevant to the Court’s determination that this petition is time-barred as a
matter of law, the facts underlying Favourite’s state court conviction are laid out elsewhere on the
record. (See ECF No. 11, Ex. 3.)
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June 10, 2015 (Singh Decl., Ex. 7), and the Appellate Division denied Favourite’s
application for leave to appeal on April 14, 2016. (Singh Decl., Ex. 9.) Finally,
Favourite filed the current petition for writ of habeas corpus on September 7, 2016.
Below is a table summarizing the dates recited above:
Motion
Direct appeal of
conviction and
sentence
Petition for writ of
error coram nobis
Motion to vacate
under N.Y. Crim.
Proc. Law §
440.10)
Petition for writ of
habeas corpus
under 28 U.S.C. §
2254
II.
Filed
Denied
Leave to Appeal
Denied
03/18/10
09/27/12
03/05/13
01/22/14
06/05/14
09/30/14
01/07/15
06/10/15
04/14/16
09/07/16
n/a
n/a
LEGAL PRINCIPLES
A petition for writ of habeas corpus under 28 U.S.C. § 2254 must be filed
within one year of “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). This time constraint “promotes judicial efficiency and conservation
of judicial resources” and “safeguards the accuracy of state court judgments by
requiring resolution of constitutional questions while the record is fresh.” Martinez
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v. Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015), as corrected
(Nov. 12, 2015) (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000)).
The Second Circuit has held that a state prisoner’s conviction becomes final
“after the denial of certiorari [by the United States Supreme Court] or the
expiration of time for seeking certiorari.” Williams v. Artuz, 237 F.3d 147, 151 (2d
Cir. 2001). Accordingly, the one-year period of limitation under § 2244(d)(1)(A)
begins to run either (1) when the United States Supreme Court denies certiorari; or
(2) upon expiration of the ninety-day period during which a state prisoner can
appeal their conviction to the United States Supreme Court under 28 U.S.C.
§ 2101(d) and Supreme Court Rule 13.2 Id.
Accrual of time is tolled during the pendency of any properly filed application
for post-conviction relief in state court. 28 U.S.C. § 2244(d)(2); see also Geraci v.
Senkowski, 211 F.3d 6, 8 (2d Cir. 2000) (“[P]eriods during which state courts'
reviews of convictions are ‘pending’ are not counted toward the one-year limitation
period.”). Additionally, petitioners may be entitled to “equitable tolling” in “rare
and exceptional circumstance[s].” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)
(internal quotation marks omitted). To secure equitable tolling, the petitioner bears
the burden of showing that “(a) ‘extraordinary circumstances’ prevented him from
filing a timely petition, and (b) he acted with ‘reasonable diligence’ during the
Supreme Court Rule 13(1) provides that “a petition for writ of certiorari to review a judgment in
any case, civil or criminal, entered by a state court of last resort . . . is timely when it is filed with the
Clerk of this Court within 90 days after entry of the judgment.”
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period for which he now seeks tolling.” Martinez, 806 F.3d at 31 (quoting Smith,
208 F.3d at 17); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
III.
DISCUSSION
Because Favourite did not file his petition for a writ of habeas corpus within
the one-year period of limitation established by 28 U.S.C. § 2244(d)(1)(A), his
petition is untimely. Furthermore, based on its review of the record and the
submissions in this action, the Court concludes that Favourite is not entitled to
equitable tolling.
First, it is clear that Favourite’s petition was not filed within the statutory
one-year period of limitations:
The Court of Appeals denied Favourite’s request for leave to appeal his
conviction on March 5, 2013. Favourite did not petition the Supreme Court
for a writ of certiorari, so the one-year period of limitations began to run one
day after3 his ability to do so expired on June 3, 2013.4 See Williams, 237
F.3d at 151. The statutory period thus ran from June 4, 2013 until January
21, 2014, and was tolled on January 22, 2014 when Favourite moved for a
writ of error coram nobis in the Appellate Division. At that point, 232 days
had accrued.
Fed. R. Civ. P. 6(a) governs the computation of time “in any statute that does not specify a method
of computing time.” The Rule provides that the court should “exclude the day of the event that
triggers the period” and “include the last day of the period.”
4 Supreme Court Rule 30(1), which governs the calculation of time for purposes of the Supreme Court
Rules, provides that “the day of the act, even, or default from which the designated period begins to
run is not included,” and “the last day of the period shall be included.”
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The statutory period was tolled from January 22, 2014 until September 30,
2014, when the Court of Appeals denied Favourite’s request for leave to
appeal the Appellate Division’s denial of his petition. 28 U.S.C. § 2244(d)(2).
The statutory period then continued to run for an additional 98 days from
October 1, 2014 until January 6, 2015, and was tolled on January 7, 2015
when Favourite moved to vacate his conviction under N.Y. Crim. Proc. Law §
440.10 in the Supreme Court. Combined with the previous accrual, a total of
330 days had accrued at that point.
The statutory period was then tolled from January 7, 2015 until May 12,
2016, when the Appellate Division denied Favourite’s request for leave to
appeal the Supreme Court’s denial of his motion. 28 U.S.C. § 2244(d)(2).
The statutory period then continued to run for an additional 118 days from
May 13, 2016 until September 7, 2016, when Favourite filed the current
petition for writ of habeas corpus. Combined with the previous accruals, a
total of 448 days had accrued at that point.
Because Favourite waited a total of 448 days to file the instant petition,
which is well over one year, his petition is untimely under 28 U.S.C.
§ 2244(d)(1)(A).5 Accordingly, Favourite’s petition must be dismissed unless the
Court concludes that “extraordinary circumstances” prevented him from timely
filing.
Respondent calculated the total time accrued as 14 months and 28 days. (Resp’t’s Mem. of Law,
ECF No. 12 at 10.) Although this calculation differs slightly from the Court’s own calculation,
Favourite’s petition was clearly filed outside the one-year period of limitation set out by 28 U.S.C.
§ 2244(d)(1)(A) under either calculation.
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The Court concludes that no such “extraordinary circumstances” exist, and
that Favourite is not entitled to equitable tolling. As an initial matter, it is
petitioner’s burden to prove he is entitled equitable tolling, Martinez, 806 F.3d at
31, and Favourite has made no effort to do so in either of his filings in this action.
Favourite does, however, allege that he did not receive notice of the Appellate
Division’s May 12, 2016 denial of leave to appeal until August 12, 2016. (Pet’r’s
Traverse in Reply to the Resp’t’s Decl. in Opp’n to Grant of Federal Habeas Corpus
Pet. (“Reply”), ECF No. 20 at 6.) But Favourite’s allegation, even if true, does not
constitute the sort of “extraordinary circumstance” necessary for application of
equitable tolling. See Geraci, 211 F.3d at 9 (holding that “the record contains no
evidence of extraordinary or unusual circumstances that would justify equitable
tolling” even though petitioner’s counsel argued that petitioner received delayed
notice of an Appellate Division decision); see also Anderson v. O'Gara, 2002 WL
1633917, at *4 (S.D.N.Y. July 23, 2002) (holding that petitioner’s lack of notice that
his coram nobis petition had been denied did not justify equitable tolling).
Furthermore, Favourite did not file the instant petition until almost a month after
he allegedly first received notice of the Appellate Division’s denial, suggesting that
Favourite did not act with “‘reasonable diligence’ during the period for which he
now seeks tolling.” Martinez, 806 F.3d at 31.
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IV.
CONCLUSION
The Court concludes that Favourite’s petition for writ of habeas corpus under
28 U.S.C. § 2254 was filed outside the statutory one-year period of limitations
established by 28 U.S.C. § 2244(d)(1). Further, the Court concludes that petitioner
is not entitled to equitable tolling. Accordingly, Favourite’s petition is DISMISSED
as untimely.
The Clerk of Court is directed to terminate the present action.
SO ORDERED.
Dated:
New York, New York
September 12, 2017
____________________________________
KATHERINE B. FORREST
United States District Judge
cc:
Rivin Favourite
#10A0025
Green Haven Correctional Facility
594 Rt. 216
Stormville, NY 12582
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