Paris v. Griffin

Filing 14

MEMORANDUM OPINION AND ORDER: re: 8 MOTION to Dismiss Habeas Corpus Petition, filed by Thomas Griffin. In short, the Court is compelled to conclude that Paris's Petition is time barred. Accordingly, Respondent's motion must be and is GRANTED, and the Petition is DISMISSED. As Paris 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 Memorandum Opinion and Order would not be taken in good faith, and in forma pauper is 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 Memorandum Opinion and Order to Paris and close the case, and as further set forth in this order. (Signed by Judge Jesse M. Furman on 4/27/2018) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THEODORE PARIS,
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Petitioner,
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-v:
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THOMAS GRIFFIN,
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Respondent.
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04/27/2018

17-CV-8739 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Petitioner Theodore Paris, a state prisoner proceeding pro se, seeks a writ of habeas corpus
pursuant to Title 28, United States Code, Section 2254, challenging his December 20, 2012
conviction for one count of assault in the first degree and three counts of attempted robbery in the
first degree. (Docket No. 2 (“Pet.”), ¶¶ 4-5; Docket No. 8 (“Resp’t’s Mot.”) Exs. B, C).
Respondent Thomas Griffin, Superintendent of the Green Haven Correctional Facility (“Green
Haven”), now moves, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss the
petition as untimely. (Resp’t’s Mot.). For the reasons that follow, the motion is GRANTED.
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 strict 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). As relevant here, the one-year limitations period
runs from “the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). In the case of a pro se
prisoner, such as Paris, a petition is deemed timely filed when the prisoner “delivers the [petition] to
prison officials within the time specified.” Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (citing

Houston v. Lack, 487 U.S. 266, 270-71, 274 (1986)); see also Rules Governing Section 2254 Cases
in the United States District Courts 3(d) (“A paper filed by an inmate confined in an institution is
timely if deposited in the institution’s internal mailing system on or before the last day for filing.”).
Applying those rules here, Paris’s Petition is plainly untimely. Paris unsuccessfully
appealed his conviction to the New York Supreme Court, Appellate Division, and sought leave to
appeal to the New York Court of Appeals, but did not file a petition for the writ of certiorari with
the United States Supreme Court. (Pet. ¶¶ 7, 9-10). Thus, Paris’s conviction became final for
purposes of Section 2254(d)(1) on October 31, 2016 — ninety days after August 2, 2016, the date
on which the New York Court of Appeals denied him leave to appeal, see People v. Paris, 28
N.Y.3d 935 (2016) — and he had until October 31, 2017 to file his Petition. See, e.g., Brown v.
Jones, No. 9:18-CV-0359 (LEK), 2018 WL 1750580, at *1 (N.D.N.Y. Apr. 11, 2018) (“[A] state
conviction becomes ‘final’ when the United States Supreme Court denies an application for a writ
of certiorari or when the time to seek certiorari has expired, which is ninety days after the date on
which the highest court in the state has completed direct review of the case.” (citing Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012))). Yet, by Paris’s own admission, he did not sign his Petition or
hand it to prison officials until November 2, 2017 — two days after his time to file had expired.
(See Pet. ¶ 12; Docket No. 10 (“Opp’n”), ¶¶ 1, 3-4). 1

1

At one point in his Petition, Paris alleges that he “handed the within petition” to prison
officials on October 27, 2017. (Pet. ¶ 24). But the Petition’s signature page and affidavit of service
indicate that they were signed on November 2, 2017. (See id. 22-23). That is enough by itself to
establish that Paris gave the Petition to prison officials on November 2, 2017. See, e.g., Rodriguez
v. Erfe, No. 3:15-CV-514 (VAB), 2017 WL 396534, at *3 (D. Conn. Jan. 30, 2017) (“Courts in this
Circuit have assumed that a prisoner hands his or her petition or complaint to a prison staff member
to be mailed or e-filed to the court on the date that the prisoner signed it.”). But in any event, Paris
concedes the point in his opposition papers, acknowledging that the October 27, 2017 date in the
Petition was included in error. (Opp’n ¶ 3).
2

Paris appears to rely on the doctrine of equitable tolling (see Pet. ¶¶ 18-19; Opp’n ¶¶ 1, 5),
but that reliance is misplaced. 2 Equitable tolling is available only in “‘rare and exceptional’
circumstances.” Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001). To qualify, a petitioner
must show that he “‘pursu[ed] his rights diligently’” and that “‘some extraordinary circumstance
stood in his way and prevented timely filing.’” Ocasio v. Lee, No. 14-CV-6097 (JMF), 2017 WL
456468, at *4 (S.D.N.Y. Feb. 2, 2017) (quoting Holland v. Florida, 560 U.S. 631, 632 (2010)).
Moreover, the petitioner must also “‘demonstrate a causal relationship between the extraordinary
circumstances on which [the petitioner’s] claim for equitable tolling rests and the lateness of [his]
filing . . . .’” Id. (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). A petitioner
cannot demonstrate this causal relationship if he or she, “‘acting with reasonable diligence[,] could
have filed on time notwithstanding the extraordinary circumstances.’” Id. (quoting Valverde, 224
F.3d at 134). In other words, to qualify for equitable tolling, Paris must show both that he pursued
his rights with reasonable diligence and that extraordinary circumstances “caused him to miss the
original filing deadline.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011); see also Doe v.
Menefee, 391 F.3d 147, 175 (2d Cir. 2004) (“If the petitioner is unable to establish that he diligently
attempted to file his petition, the extraordinary circumstances on which his tolling claim is based
cannot be said to have caused the lateness of his petition.”).
Paris falls short on both prongs of the test. First, conclusory assertions aside, he fails to
establish that he pursued his rights diligently “‘throughout the period he seeks to toll.’” Harper,
648 F.3d at 138 (quoting Belot v. Burge, 490 F.3d 201, 205 (2d Cir. 2007)); see also Yang v.

2

A claim of actual innocence can also “provide a ‘gateway’ to consideration of an otherwise
time-barred petition,” so long as the claim is “both ‘credible’ and ‘compelling.’” Smith v.
Chappius, No. 13-CV-7595 (JMF), 2014 WL 5786945, at *2 (S.D.N.Y. Nov. 6, 2014) (quoting
Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012)); see McQuiggin v. Perkins, 569 U.S. 383, 386
(2013). Here, however, Paris makes no actual innocence claim.
3

Archuleta, 525 F.3d 925, 930 (10th Cir. 2008) (noting that a petitioner must “allege with specificity
the steps he took to diligently pursue his federal claims” and that a “conclusory statement that [he]
diligently pursued his rights and remedies will not [alone] suffice” (internal quotation marks
omitted)). Paris admits that he waited until the “11th hour” to prepare and sign his Petition. (Opp’n
¶ 7; see also id. ¶¶ 1, 4). And while he provides some explanation for his failure to sign and submit
the Petition four days before the deadline (namely, that he was not scheduled to use the law library
until November 2, 2017, (see id. ¶¶ 1, 4)), he provides no good explanation for his failure to
diligently pursue relief during the prior 361 days. The closest he comes, in a procedurally improper
sur-reply, is to claim that when he was transferred from to Green Haven from another facility (on an
unspecified date), “[i]t took several months for the prior facility to forward [his] legal documents.”
(Docket No. 12 (“Sur-reply”), ¶ 8). But that does not demonstrate with sufficient specificity that
Paris “‘acted with reasonable diligence.’” Harper, 648 F.3d at 138 (emphasis added) (quoting
Belot, 490 F.3d at 205). Put simply, Paris could “have begun his preparation earlier and filed an
unpolished-but timely-petition rather than wait to file his more polished petition until the week that
the deadline expired.” Belot, 490 F.3d at 207 (internal quotation marks and brackets omitted).
In any event, Paris fails to show that some extraordinary circumstance stood in his way and
prevented him from timely filing the Petition. Paris provides various explanations for his failure to
meet the deadline: that he incorrectly believed the deadline to be November 2, 2017, (see Pet. ¶ 12;
Opp’n ¶ 4); that he was unfamiliar with the legal system, (Opp’n ¶ 5); that he had access to the
prison law library only once a week, (id. ¶ 1); and that he lacked access to his legal papers for some
period when he was transferred to Green Haven (Pet. ¶ 18). But whether considered individually or
together, these circumstances do not qualify as “extraordinary” ones that would justify equitable
tolling, either because they were not “external obstacle[s]” beyond Paris’s own control, see, e.g.,
Menominee Indian Tribe v. United States, 136 S. Ct. 750, 756 (2016) (internal quotation marks
4

omitted); see also Dillon v. Conway, 542 F.3d 358, 363 (2d Cir. 2011) (“[A]n ordinary mistake . . .
regarding the rules [governing] deadlines for filing of habeas petitions [does] not justify equitable
tolling.” (internal quotation marks omitted)), or because they are the ordinary “difficulties attendant
on prison life,” Adkins v. Warden, 585 F. Supp. 2d 286, 296 (D. Conn. 2008) (noting that “transfers
between facilities, . . . restricted access to the law library, and an inability to secure court
documents” are not generally considered “extraordinary circumstances” (internal quotation marks
omitted)). In fact, Paris himself describes many of the circumstances upon which he relies as “the
ordinary functioning and operation” of Green Haven. (Opp’n ¶ 4; see also Sur-reply ¶¶ 10-11).
In short, the Court is compelled to conclude that Paris’s Petition is time barred.
Accordingly, Respondent’s motion must be and is GRANTED, and the Petition is DISMISSED. As
Paris 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 Memorandum 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 Memorandum Opinion
and Order to Paris and close the case.

SO ORDERED.
Dated: April 27, 2018
New York, New York

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