Williams v. Noeth

Filing 6

ORDER TO SHOW CAUSE: The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket. Petitioner is directed to file a declaration within sixty days of the date of this order showing why the petition should not be dismissed as time-barred. A declaration form is attached to this order. Plaintiff must submit the declaration to this Court's Pro Se Intake Unit within sixty days of the date of this order, and label the document with docket number 21- CV-00054 (LLS). No answer shall be required at this time. If Petitioner timely files a declaration, the Court shall review it, and if proper, shall order the Respondent to answer. If Petitioner fails to comply with this order within the time allowe d, and cannot show good cause to excuse such failure, the petition will be denied as time-barred. Because Petitioner has not at this time made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. (Signed by Judge Louis L. Stanton on 1/6/2021) (sac) Transmission to Docket Assistant Clerk for processing.

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Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 1 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY WILLIAMS, Petitioner, 21-CV-00054 (LLS) -against- ORDER TO SHOW CAUSE J. NOETH, Respondent. LOUIS L. STANTON, United States District Judge: Petitioner, currently incarcerated in Marcy Correctional Facility, brings this pro se petition under 28 U.S.C. § 2254, challenging his 2013 conviction in the New York Supreme Court, Bronx County. 1 By order dated January 5, 2021, the Court granted Petitioner’s request to proceed in forma pauperis (IFP). The Court directs Petitioner to file a declaration within sixty days of the date of this order showing cause why this application should not be denied as timebarred. DISCUSSION I. Applicable Statute of Limitations Petitioner’s application may be time-barred. A prisoner seeking habeas relief under § 2254 must generally file a petition within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on 1 Petitioner filed this petition in the United States District Court for the Western District of New York, and that court transferred the matter here. See Williams v. Noeth, No. 20-CV-01909 (W.D.N.Y. Jan. 4, 2021). Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 2 of 20 collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)-(2). Petitioner alleges that on June 14, 2013, he was convicted in the New York Supreme Court, Bronx County. Court records indicate that on February 21, 2019, the New York Supreme Court Appellate Division, First Department, affirmed the conviction, People v. Willliams, 169 A.D.3d 567 (1st Dep’t Feb. 21, 2019), and on June 14, 2019, the New York Court of Appeals denied leave to appeal, 33 N.Y.3d 1075. Petitioner’s conviction consequently became final on September 14, 2019, following “the expiration of [the] 90-day period of time to petition for certiorari in the Supreme Court of the United States.” Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000). Petitioner placed this petition in the prison mail collection box on December 18, 2020, more than one year and three months after the judgment of conviction became final. Petitioner does provide an excuse for failing to file a habeas petition within one year from when his judgment of conviction became final. On the portion of the habeas corpus form prompting Petitioner to address the timeliness of his filing, he asserts the following, verbatim: In doing my own research, In have problem understanding the law, Appellate Counsel did not give any direction once direct appeal was done. In I been trying to find counsel, plus I been [sic] [writing] any one in the Criminal Justice address book never a response. (ECF 1 ¶ 18.) But in the habeas context, ignorance of the law is not grounds for equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000); Ruiz v. Poole, 566 F. Supp.2d 336, 341 (S.D.N.Y. 2008) (“Ignorance of the law does not constitute a rare and extraordinary circumstance that would merit equitable tolling.”) Although a pro se litigant is accorded “some degree of latitude” in meeting filing requirements, “[it] has long been recognized that ignorance does not excuse lack of compliance with the law.” Velasquez v. United 2 Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 3 of 20 States, 4 F. Supp.2d 331, 334–35 (S.D.N.Y. 1998). “Pro se status does not in itself constitute an extraordinary circumstance meriting tolling.” Doe v. Menifee, 391 F.3d 147, 175 (2d Cir. 2004). Petitioner’s assertions are insufficient to show that some extraordinary circumstance prevented him from timely submitting this petition. Plaintiff is granted leave to provide any additional facts to make that showing. II. Leave to File Declaration The Court directs Petitioner to file a declaration within sixty days of the date of this order stating why this application should not be denied as time-barred. 1 Petitioner should allege any facts showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from timely submitting this petition. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that one-year limitations period under § 2244(d) for habeas corpus petitions under § 2254 is subject to equitable tolling in appropriate cases). CONCLUSION The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket. Petitioner is directed to file a declaration within sixty days of the date of this order showing why the petition should not be dismissed as time-barred. A declaration form is attached to this order. Plaintiff must submit the declaration to this Court’s Pro Se Intake Unit within sixty days of the date of this order, and label the document with docket number 21-CV-00054 (LLS). No answer shall be required at this time. 1 Petitioner should also include in the declaration a listing of: (1) the dates that all postconviction applications in state court challenging this conviction were filed, including any petition for a writ of error coram nobis, all motions under N.Y. Crim. P. L. § 440, and any other postconviction applications; (2) when any postconviction applications were decided; (3) the dates that any appeals or applications for leave to appeal from those decisions were filed; (4) when those appeals or applications were decided; and (5) when Petitioner received notice of any state court decisions on those applications and appeals. See 28 U.S.C. § 2244(d)(2). 3 Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 4 of 20 If Petitioner timely files a declaration, the Court shall review it, and if proper, shall order the Respondent to answer. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be denied as time-barred. Because Petitioner has not at this time made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. SO ORDERED. Dated: January 6, 2021 New York, New York Louis L. Stanton U.S.D.J. 4 Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 5 of 20 Clerk, United States District Court for Address City, State Zip Code Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 6 of 20 AMENDED AMENDED Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 7 of 20 AO 241 (Rev. 06/13) Page 3 (b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to? (c) If you went to trial, what kind of trial did you have? (Check one) ’ Jury 7. Did you testify at a pretrial hearing, trial, or a post-trial hearing? ’ Yes 8. ’ No Did you appeal from the judgment of conviction? ’ Yes 9. ’ Judge only ’ No If you did appeal, answer the following: (a) Name of court: (b) Docket or case number (if you know): (c) Result: (d) Date of result (if you know): (e) Citation to the case (if you know): (f) Grounds raised: (g) Did you seek further review by a higher state court? If yes, answer the following: (1) Name of court: (2) Docket or case number (if you know): (3) Result: (4) Date of result (if you know): ’ Yes ’ No Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 8 of 20 AO 241 (Rev. 06/13) Page 4 (5) Citation to the case (if you know): (6) Grounds raised: (h) Did you file a petition for certiorari in the United States Supreme Court? ’ Yes ’ No If yes, answer the following: (1) Docket or case number (if you know): (2) Result: (3) Date of result (if you know): (4) Citation to the case (if you know): 10. Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court? 11. ’ Yes ’ No If your answer to Question 10 was "Yes," give the following information: (a) (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes ’ No (7) Result: (8) Date of result (if you know): Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 9 of 20 AO 241 (Rev. 06/13) Page 5 (b) If you filed any second petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes ’ No (7) Result: (8) Date of result (if you know): (c) If you filed any third petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 10 of 20 AO 241 (Rev. 06/13) Page 6 (6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes ’ No (7) Result: (8) Date of result (if you know): (d) Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application, or motion? (1) First petition: ’ Yes ’ No (2) Second petition: ’ Yes ’ No (3) Third petition: ’ Yes ’ No (e) If you did not appeal to the highest state court having jurisdiction, explain why you did not: 12. For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date. GROUND ONE: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground One, explain why: Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 11 of 20 AO 241 (Rev. 06/13) (c) Page 7 Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 12 of 20 AO 241 (Rev. 06/13) Page 8 (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground One: GROUND TWO: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground Two, explain why: (c) Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 13 of 20 AO 241 (Rev. 06/13) Page 9 Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you : have used to exhaust your state remedies on Ground Two GROUND THREE: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 14 of 20 AO 241 (Rev. 06/13) Page 10 (b) If you did not exhaust your state remedies on Ground Three, explain why: (c) Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 15 of 20 AO 241 (Rev. 06/13) Page 11 (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Three: GROUND FOUR: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground Four, explain why: (c) Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why: (d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 16 of 20 AO 241 (Rev. 06/13) Page 12 Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Four: Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 17 of 20 AO 241 (Rev. 06/13) 13. Page 13 Please answer these additional questions about the petition you are filing: (a) Have all grounds for relief that you have raised in this petition been presented to the highest state court having jurisdiction? ’ Yes ’ No If your answer is "No," state which grounds have not been so presented and give your reason(s) for not presenting them: (b) Is there any ground in this petition that has not been presented in some state or federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them: 14. Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction that you challenge in this petition? ’ Yes ’ No If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues raised, the date of the court's decision, and the result for each petition, application, or motion filed. Attach a copy of any court opinion or order, if available. 15. Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for the judgment you are challenging? ’ Yes ’ No If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised. Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 18 of 20 AO 241 (Rev. 06/13) 16. Page 14 Give the name and address, if you know, of each attorney who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing: (b) At arraignment and plea: (c) At trial: (d) At sentencing: (e) On appeal: (f) In any post-conviction proceeding: (g) On appeal from any ruling against you in a post-conviction proceeding: 17. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? ’ Yes ’ No (a) If so, give name and location of court that imposed the other sentence you will serve in the future: (b) Give the date the other sentence was imposed: (c) Give the length of the other sentence: (d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the future? 18. ’ Yes ’ No TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.* Tab to continue "TIMELINESS OF PETITION" on next page. Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 19 of 20 AO 241 (Rev. 06/13) Page 15 * The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in 28 U.S.C. § 2244(d) provides in part that: (1) A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (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. Case 1:21-cv-00054-LLS Document 6 Filed 01/06/21 Page 20 of 20 AO 241 (Rev. 06/13) Page 16 (2) The 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 toward any period of limitation under this subsection. Therefore, petitioner asks that the Court grant the following relief: or any other relief to which petitioner may be entitled. Signature of Attorney (if any) I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on Executed (signed) on (month, date, year). (date). Signature of Petitioner If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is not signing this petition. Print Save As... Reset

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