Brown v. Khahifa

Filing 24

ORDER denying petition for writ of habeas corpus. Signed by Hon. Michael A. Telesca on 6/20/11. (JMC) (Main Document 24 replaced on 6/20/2011) (RE).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LAMAR BROWN, 04-B-2750,
Petitioner,
-v-

09-CV-869(MAT)
ORDER

SUPERINTENDENT KHAHIFA,
Respondent.

I.

Introduction
Pro se petitioner Lamar Brown (“petitioner”) seeks relief

pursuant to 28 U.S.C. § 2254 alleging that his conviction in Erie
County

Supreme

Substance

in

Court
the

of

Criminal

Second

Possession

Degree

(N.Y.

of

Penal

a

Controlled

Law

(“P.L.”)

§ 220.18(1)), a class A-II felony, was unconstitutionally obtained.
Petitioner pleaded guilty on March 20, 2003, before Justice Penny
M. Wolfgang. He was subsequently sentenced to an indeterminate term
of imprisonment of six years to life.
II.

Factual Background and Procedural History
A.

Plea and Sentence

Petitioner was charged in a felony complaint with Criminal
Possession of a Controlled Substance in the First Degree (P.L.
§

220.21(1)),

a

class

A-I

felony.

According

to

the

Felony

Information (Dkt. #15-1), Buffalo Police arrived at 228 Oakmont
Avenue in the City of Buffalo to investigate a “violent domestic.”
Felony Information p. 1. After petitioner permitted police to enter

the residence, it was alleged that the officers observed and
recovered multiple bags of cocaine that were in plain view in
various places, including inside of an open backpack on the kitchen
table, and next to a television in the living room. Id. at 1. It
was also alleged that police recovered cocaine from a shoebox
inside a hallway closet, a measuring cup containing powder cocaine,
and a chunk of cocaine found on a scale in a kitchen cupboard. Id.
In sum, the recovered cocaine was alleged to exceed four ounces in
weight.1 Id. If convicted of the A-I felony, petitioner faced a
possible sentence of fifteen to twenty-five years to life. See P.L.
§ 70.00(3)(a)(i).2
Petitioner pleaded not guilty, waived a preliminary hearing,
signed a waiver of indictment, and entered a guilty plea to seconddegree drug possession under Superior Court Information (“S.C.I.”)
No. 21871. See Plea Tr. dated 3/20/2003.
sentenced as a second-felony offender

On May 19, 2004, he was

to an indeterminate term of

imprisonment of six years to life, to be served concurrently with
a federal sentence imposed following petitioner’s conviction of

1

At the time of petitioner’s conviction, Criminal Possession of a
Controlled Substance in the First Degree required a person to knowingly and
unlawfully possesses “one or more preparations, compounds, mixtures or
substances containing a narcotic drug and said preparations, compounds,
mixtures or substances are of an aggregate weight of four ounces or more.”
N.Y. Penal Law § 220.21 (McKinney 2004).
2

In December, 2004, the New York legislature enacted the Drug Law
Reform Act (“DLRA”) which replaced the indeterminate sentencing scheme of the
Rockefeller Drug Laws with a determinate system. See DLRA, ch. 738, § 23, 2004
N.Y. Sess. Laws 1474-75 (McKinney); see, e.g., People v. Pauly, 21 A.D.3d 595
(3rd Dept. 2005); P.L. § 60.04.
2

Conspiracy to Distribute Cocaine in the U.S. District Court of
Western New York. See Sentencing Tr. dated 5/19/2004. Petitioner
did not file a Notice of Appeal.
B.

Post-Conviction Relief

On February 7, 2006, petitioner filed a state motion pursuant
to N.Y. Crim. Proc. Law (“C.P.L.”) § 440.10 to vacate the judgment
of conviction on the grounds that: (1) the court did not have
jurisdiction over the action or his person; (2) the judgment was
procured by duress, misrepresentation, or fraud on the part of the
court or the prosecutor; and (3) he was denied his right to the
effective

assistance

of

counsel.

See

Respondent’s

Exhibits

(“Ex.”) B. That motion was denied pursuant to C.P.L. 440.10(2)(c),
which

mandates

dismissal

of

the

motion

where

the

defendant

unjustifiably failed to argue such claims on direct appeal despite
a sufficient record. See Decision of Supreme Court, Erie County
(Wolfgang, J.), S.C.I. No. 21871, dated 5/26/2006 (Ex. B).
The Appellate Division, Fourth Department, granted leave to
appeal the denial of petitioner’s § 440.10 motion. Ex. C. A Notice
of Appeal was subsequently filed and, through counsel, petitioner
submitted a brief addressing whether petitioner was denied the
right to the effective assistance of counsel when his attorney
allowed him to waive indictment and plead guilty under a Superior
Court Information. Ex. D. The Fourth Department affirmed the denial
of the § 440.10 motion, holding:

3

Although defendant is correct that the court
lacked jurisdiction to permit him to waive
indictment and consent to be prosecuted by
[SCI] inasmuch as he was charged in the
indictment
with
a
class
A
felony,
we
nevertheless conclude that he is barred from
raising that error by way of a motion to
vacate the judgment pursuant to CPL 440.10.
Where, as here, “ sufficient facts appear on
the record of the proceedings underlying the
judgment to have permitted, upon appeal from
such judgment, adequate review” of the
defendant's contentions, the court must deny a
motion to vacate the judgment.
People v. Brown, 59 A.D.3d 1058 (4th Dept. 2009) (quoting C.P.L.
§

440.10(2)(c);

other

quotations

and

citations

omitted),

lv.

denied, 12 N.Y.3d 851 (2009).
Petitioner then filed a petition for habeas corpus in this
Court (Dkt. #1) on September 27, 20093, seeking relief on two
grounds: (1)

his guilty plea was unlawful because the state court

did not have jurisdiction to waive indictment and proceed with a
Superior Court Information; and (2) he received constitutionally
ineffective assistance of counsel. Petition (“Pet.”) ¶ 22(A)-(B).
For the reasons that follow, the petition is dismissed as
time-barred.
III. Discussion
A.

Timeliness

Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, a one-year

3

See Houston v. Lack, 487 U.S. 266 (1998) (Explaining “prison mailbox

rule”).
4

statute of limitations applies to the filing of applications for a
writ of habeas corpus. 28 U.S.C. § 2244(d)(1). In general, the
one-year period runs from the date on which the petitioner's state
criminal judgment becomes final. Ross v. Artuz, 150 F.3d 97, 98 (2d
Cir.1998) (citing 28 U.S.C. § 2244(d) (1)(A)); accord Smith v.
McGinnis, 208 F.3d 13, 16 (2d Cir.), cert. denied, 531 U.S. 840
(2000). A conviction is considered “final” “once ‘the judgment of
conviction

[has

been]

rendered,

the

availability

of

appeal

exhausted, and the time for petition for certiorari ... elapsed.’”
McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir.2003) (quoting Teague v.
Lane, 489 U.S. 288, 295

(1989) (citation and internal quotation

marks omitted in original), citing Clay v. United States, 537 U.S.
522

(2003)

(noting

the

“long-recognized,

clear

meaning”

of

“finality” in the post-conviction relief context as the time when
the Supreme Court “affirms a conviction on the merits on direct
review or denies a petition for a writ of certiorari, or when the
time for filing a certiorari petition expires”)).
Here, petitioner did not file a Notice of Appeal from his
judgment of conviction. Pet., ¶¶ 9-10. His conviction therefore
became final for purposes of 28 U.S.C. § 2244(d)(1)(A) on June 18,
2004, when his time to file a Notice of Appeal expired. See Bethea
v.

Girdich,

293

F.3d

577,

578-79

(2d

Cir.2002)

(state

court

judgment became final when the thirty day period for filing a
Notice of Appeal from judgment of conviction expired) (citing

5

C.P.L. § 460.10(1)). The one-year period in which he had to file
his habeas petition therefore expired on June 18, 2005, and the
petition, filed on September 27, 2009, is over four years past the
expiration of the statute of limitations.
While petitioner did file a motion to vacate under C.P.L.
§ 440.10, it was not filed until February 7, 2006, Pet. ¶ 14,
approximately eight months after the state of limitations expired.
It therefore did not operate to toll the statute of limitations
under 28 U.S.C. § 2244(d)(2). The filing of a collateral attack
does not restart the statute of limitations period. As the Second
Circuit made clear in Smith v. McGinnis, the “proper calculation of
Section 2244(d)(2)’s toll provision excludes time during which
properly filed state relief applications are pending but does not
reset the date from which the one-year statute of limitations
begins to run. 208 F.3d at 17. Stated another way, tolling extends
the time to file a habeas petition by delaying the expiration of
the statutory period, but has no effect once the period has
expired. Because the statutory period expired prior to the filing
of

petitioner’s

§

440.10

motion,

the

tolling

provision

is

inapplicable and the petitioner is untimely.
1.

Equitable Tolling

Petitioner argues in his submissions to the Court (Dkt. ##4,
22) that, due to his counsel’s ineffectiveness, he was unable to
file and perfect a state appeal and therefore was unable to

6

properly

preserve

his

claims

for

habeas

review.

Insofar

as

petitioner seeks to invoke the doctrine of equitable tolling, it is
only applicable in “rare and exceptional” circumstances. Smith, 208
F.3d at 17. The statute of limitations period may be tolled, “only
if [the petitioner] shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.” Holland v. Florida, --- U.S.
----, 130 S.Ct. 2549, 2560–62 (2010) (internal quotation marks
omitted). While the Second Circuit has held that an attorney’s
conduct, if sufficiently egregious, may constitute “extraordinary
circumstances” to warrant equitable tolling of the one-year statute
of limitations, petitioner has failed to show that the facts of
this case rise to extraordinary circumstances. See Baldayaque v.
U.S., 338 F.3d 145 (2d Cir.2003) (Attorney’s failure to file a
habeas

petition

directions

from

on

behalf

prisoner

to

of

a

do

prisoner,

so,

despite

constituted

explicit

extraordinary

circumstances); Dillon v. Conway, --- F.3d ----, 2011 WL 1548955,
(2d Cir.2011) (Equitable tolling was warranted where attorney filed
petition one day late, believing the date on which it was filed was
the last day, despite an explicit promise to prisoner that petition
would not be filed on the last day; prisoner and his wife were
persistent in maintaining contact with the attorney to ensure
petition was timely filed).

7

Assuming petitioner’s attorney failed to file a Notice of
Appeal, petitioner does not demonstrate any connection between his
attorney’s deficiency, which relates to his appellate rights, and
his ability to timely file the instant habeas petition. This is not
a case where petitioner relied on statements by counsel that an
action had been taken would toll the statute of limitations. See
Baldayaque, Dillon, supra. His allegation that he “was under the
false interpretation that counsel had filed the requested Notice of
Appeal,” Pet’r Reply at 9 (Dkt. #4), is unavailing in light of his
attorney’s

sworn

affirmation

to

this

Court

that

petitioner

“indicated to [him] that he was satisfied with the plea, understood
the sentence, and saw no need to file a Notice of Appeal,” Aff. of
Joseph Terranova, Esq. (“Terranova”) (Dkt. #15-2), and the fact
that petitioner waived his right to appeal on the record. Plea
Tr. 6.

Moreover, petitioner does not provide evidence any of his

attempts at contacting Terranova regarding a possible appeal4, nor
does he suggest that he ever contacted the Appellate Division to
ascertain

whether

a

Notice

of

Appeal

had

been

filed

after

communication with his attorney had ceased. See, e,.g., Warren v.
Kelly, 207 F.Supp.2d 6, 11 (E.D.N.Y. 2002) (petitioner, who failed

4
Petitioner does provide a letter from the Erie County Bar
Association’s Assigned Counsel Program Administrator addressed to petitioner,
notifying him that Terranova had been assigned to represent him in a petition
for re-sentencing under the Rockefeller reform law. See Pet., Exhibit-F, Ltr.
dated 1/9/2006. While this documents at least one attempt by petitioner to
contact his attorney, it does not relate to his appeal and indeed was sent
well after AEDPA’s statute of limitations ended, much less within the thirty
days he had to appeal the judgment of conviction.

8

to inquire about the status of his appeal during the time he sought
to be tolled could not “use his own lack of diligence to toll the
statute of limitations.”).

Notably, upon learning that Terranova

did not file the Notice of Appeal sometime during the fall of 2004,
Pet’r Reply at 4 (Dkt. #4), petitioner never sought an extension of
time pursuant to C.P.L. § 460.30.
Most importantly, however, petitioner has not explained how
his counsel’s failure to file a Notice of Appeal affected his
actual ability to timely file his habeas petition. See Valverde v.
Stinson, 224 F.3d 129, 134 (2d Cir.2000) (stating that there must
be a “link of causation” between the extraordinary circumstances
and the delay in filing); Raynor v. Dufrain, 28 F.Supp.2d 896, 900
(S.D.N.Y.1998) (“[E]ven if petitioner's attorney failed to file a
notice of appeal in the instant case, this failure had no bearing
on his actual ability to pursue habeas relief.”); Bowman v. Walsh,
No. 07-CV-3586 (BMC), 2007 WL 2815711, *2 (E.D.N.Y. Sept. 25, 2007)
(“Not every petitioner appeals his conviction, especially where, as
here, the petitioner pled guilty. Nor is an appeal a necessary
prerequisite to filing a timely habeas petition. Moreover, a
diligent person in petitioner's circumstances would have discovered
that no appeal had been filed.”).
Even if Terranova’s failure to file a timely Notice of Appeal
were to

constitute

an

extraordinary

circumstances,

petitioner

failed to act with reasonable diligence throughout the period he

9

seeks to toll. Accordingly, the Court finds that petitioner has not
provided a basis to invoke equitable tolling in this case.
2.

28 U.S.C. § 2244(d)(1)(D)

Even if the Court were to determine the statute of limitations
in petitioner’s case on the basis of another of AEDPA’s triggering
events, the petition would still be untimely. Section 2244(d)(1)(D)
provides that the statute of limitations begins to run on “the date
on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.”
Petitioner does not specify the date upon which he contends he
actually discovered or could have discovered the factual predicate
for his ineffective assistance claim relating to his attorney’s
failure to file a Notice of Appeal. Even if, giving petitioner the
benefit of the doubt, the Court were to consider the date he
discovered the factual predicate to be the date he filed his
§ 440.10 petition alleging ineffective assistance of counsel on
February 7, 2007, the petition would still be untimely by nearly
two years.5 Accordingly, 28 U.S.C. § 2244(d)(1)(B) is inapplicable,
and the petition is therefore time-barred.
IV.

Conclusion
Because petitioner filed his federal habeas petition beyond

AEDPA's one-year deadline, and because he was not entitled to
5

If the statute of limitations commenced on February 2, 2007, pursuant
to 28 U.S.C. § 2244(d)(1)(D), it would have run for one year, to February 2,
2008. The instant petition was filed on September 27, 2009, approximately one
year and seven months following the expiration of the new limitations period.
10

sufficient statutory tolling during that period, or for equitable
tolling,

his

limitations.

federal
His

petition

petition

for

is
a

barred
writ

of

by

the

habeas

statute
corpus

of

must

therefore be denied. No certificate of appealability shall issue.
28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

June 20, 2011
Rochester, New York

11