Phillips v. LaValley

Filing 18

DECISION AND ORDER dismissing the petition and supplemental petition with prejudice. Signed by Hon. Michael A. Telesca on 2/10/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RALPH BUCK PHILLIPS,
DECISION AND ORDER
No. 10-CV-0997(MAT)

Petitioner,
-vsTERRY LAVALLEY, Superintendent,
Respondent.

I.

Introduction
Ralph Buck Phillips (“Petitioner” or “Phillips”) has filed

this pro se 28 U.S.C. § 2254 petition for a writ of habeas corpus.
Phillips is incarcerated pursuant to a judgment of conviction
entered against him on December 19, 2006, New York State County
Court, Chautauqua County, following a guilty plea to one count of
Aggravated Murder in the First Degree (New York Penal Law (“P.L.”)
§ 125.26), and one count of Attempted Aggravated Murder in the
First Degree (P.L. §§ 110.00/125.26). Phillips is currently serving
concurrent prison terms of life without parole for the murder count
and forty years to life for the attempted murder count.
II.

Factual Background and Procedural History
A.

Overview

After escaping from the Erie County Jail in April 2006,
Phillips shot at police officers on three separate occasions,
killing one officer (State Trooper Anthony Longobardo) and wounding

-1-

two others (State Troopers Donald Baker and Sean Brown).1 During
the

August

31,

2006

incident

which

forms

the

basis

for

the

convictions at issue here, Phillips shot and killed Longobardo, and
shot and seriously injured Baker. Phillips was indicted by a
Chautauqua County grand jury on charges of aggravated murder (P.L.
§ 125.26); first degree murder (P.L. § 125.27(1)(a)); attempted
aggravated

first

degree

murder

(P.L.

§§

110.00/125.27(1)(a));

aggravated assault on a police officer (P.L. § 120.11); second
degree burglary (P.L. § 120.25(1)(a)); and third degree grand
larceny (P.L. § 155.35).
B.
On

Petitioner’s Arrest and Statement to the Police
September

9,

2006,

Phillips

gave

a

statement

to

the

New York State Police during an interview with Investigator James
Newell (“Newell”). See Two-Page Statement, attached as an Exhibit
to Dkt. #1-2, numbered as pages 69-70. Phillips indicated he was
giving the statement because Newell promised to do everything he
could to arrange for the dismissal of certain pending charges
against Phillips’ daughter, Patrina Wright (“Wright”), and Wright’s
mother, Kasey Crowe (“Crowe”). Phillips stated that as he was

1

In connection with these incidents, Phillips entered a guilty plea to first
degree escape in Erie County Court, and that conviction was upheld on appeal.
People v. Phillips, 56 A.D. 3d 1168 (4 th Dept. 2008), lv. denied, 11 N.Y.3d 928
(2009). With regard to the Chemung County charges involving State Trooper Sean
Brown, Phillips entered a guilty plea to attempted aggravated murder, attempted
second degree murder, second degree criminal weapon possession, and third-degree
criminal possession of stolen property. He was sentenced to an aggregate
indeterminate prison term of forty years to life, plus five years of post-release
supervision. That conviction also was upheld on appeal. People v. Phillips, 71
A.D.3d 1181 (3d Dept.), lv. denied, 15 N.Y.3d 755 (2010).

-2-

approaching Crowe’s home, he came upon two men in camouflage.
Phillips stated that the men raised their guns; he “was scared did
the same.” Next, Phillips, stated, he “immediately started shooting
from the hip” and “[t]he two guys also were shooting.” Phillips ran
back into the woods and reloaded his rifle. He “thought they were
bounty hunters and [he] was mad that they were after me.” He
claimed he “did not know that they were police.” Phillips showed
Newell on a map where he believed he hid his gun and backpack.
Phillips

has

taken

contradictory

positions

regarding

the

statement, both arguing that it was coerced and that it provides
him with a defense of justification. In any event, the confession
became immaterial once Phillips elected to plead guilty.
C.

The Guilty Plea

On November 29, 2006, the parties appeared in New York State
Supreme Court (Chautauqua County) before Acting Supreme Court
Justice Richard C. Kloch, Sr. (“Justice Kloch”). Justice Kloch
noted that Richard W. Rich, Jr., Esq. (“Attorney Rich”), from the
City of Chemung Public Advocate’s Office, had been assigned to
represent Petitioner in his then-pending Chemung and Erie County
prosecutions. A.12.2 Phillips stated that he wanted Attorney Rich
to represent him in the Chautauqua County prosecution as well, and
Justice Kloch court granted that request. A.12-13.
2

Citations to “A.__” refer to pages in “Exhibit A” to Respondent’s Answer
(Dkt. #). Exhibit A contains the Settled Record on Appeal and includes, inter
alia, the plea transcript and the parties’ appellate briefs.

-3-

After arraigning Phillips on the seven charges, Justice Kloch
noted that Phillips had reached an agreement with the prosecution,
pursuant to which he would enter a guilty plea to counts one and
three

of

the

indictment

(aggravated

first

degree

murder

and

attempted aggravated first degree murder, respectively). Phillips
stated that he had reviewed with his attorney a plea agreement that
encompassed his Chautauqua County charges, along with the Chemung
and Erie County charges, as well as pending federal charges (Armed
Career Criminal in Possession of a Weapon and Theft of Firearms
from a Licensed Firearms Dealer, 18 U.S.C. §§ 924(3), 922(g)(1),
922(u),

&

924(I))

in

the

Western

District

of

New

York.

See

Memorandum of Understanding, A.42-43. It was agreed that at the
time of sentencing, pending Chautauqua County charges of Hindering
Prosecution against Crowe, and Endangering the Welfare of a Child
and Resisting Arrest against Wright, would be dismissed. A.43.
In response to questioning by Justice Kloch, Phillips stated
that he had sufficiently discussed the guilty plea with counsel,
and that he did not need any further time to do so. A.16. When
asked if he was satisfied with the legal services counsel had
provided him, he replied, “I am.” A.17. The trial court then led
Phillips through a series of questions, beginning with how he
became a fugitive from justice in the summer and fall of 2006, when
the New York State Police and other agencies in New York and
Pennsylvania searched for him. He was aware that law enforcement

-4-

was conducting surveillance of his family and friends in Chautauqua
County, having observed individuals and vehicles surrounding the
homes of his family and friends in the Town of Pomfret. Phillips
admitted suspecting that they were police officers with unmarked
police vehicles. A.18. Concerned that pending criminal or family
court charges would affect his family’s custody rights, he assured
his family that he would take care of the police. A.19. To that
end, he burglarized a nearby gun store on August 26 or 27, 2006,
and acquired approximately 41 weapons, including a .308-caliber
“Cetme” rifle. Id.
Phillips acknowledged that on August 31, 2006, Phillips, was
near his family’s home at 4710 Bachelor Hill Road in Pomfret. A.19.
When asked if he knew that the .308 rifle could cause fatal wounds,
he responded, “Indeed I did.” A.20. He stated that he was “very”
familiar with firearms and knew that the Cetme, a very powerful
rifle, would most likely cause a person’s death if the bullet “hit
in the right place.” Id. He affirmed that he intentionally fired
that rifle at two individuals, whom he later would learn were
Longobardo and Baker, acting in their capacity as state troopers at
the time they were shot. A.21.
After his capture, Phillips revealed the location of the rifle
to the New York State Police and subsequently learned that a
ballistics examination identified the Cetme .308-caliber rifle as
the weapon that caused the officers’ wounds. A.22. Justice Kloch

-5-

confirmed

that

Phillips

was

aware

of,

and

had

taken

into

consideration, the following inculpatory evidence before making his
decision to plead guilty: (1) his statements to Todd Nelson that
he, Phillips, was angry with the police; (2) written correspondence
from

Phillips,

in

the

prosecution’s

possession,

indicating

Phillips’ desire to obtain a .308 caliber rifle to use in shooting
the police, and (3) Phillips’ post-arrest statements to police
implicating him in the shootings of the troopers. A.22-23.
The trial court again confirmed that Phillips had reviewed the
terms of the plea agreement with his attorney, and he responded
“yes.” A.24. Phillips denied that any promises other than those
specified in the agreement had been made to him, and confirmed his
understanding

of

the

mandatory

no-parole

sentence

that

would

receive in connection with the first degree murder conviction.
Phillips

confirmed

that

he

was

pleading

guilty

freely

and

voluntarily, and that no one had forced him to enter into the plea.
A.25. He agreed that he was doing it because it was “true” and it
was in his best interest. A.24.

Answering the trial court’s

questions, Petitioner indicated his full understanding of the
rights he was giving up by pleading guilty, including his right to
a jury trial at which he could confront and cross-examine his
accusers,

call

prosecution
Phillips

witnesses

must

also

prove

on

his

understood

his
guilt

that

-6-

by

own

behalf,

beyond

a

pleading

and

where

reasonable
guilty,

the

doubt.
he

was

surrendering his right to attack the validity of any statement or
confession he made, as well as any of the evidence the prosecution
would present at trial. Phillips stated that he understood that,
ordinarily he had an absolute right to appeal his judgment of
conviction, but under the plea agreement, he as waiving his right
to appeal and challenge any pre-plea, plea, or sentencing errors.
Phillips stated that he had discussed the appellate-rights waiver
with his attorney, and did not need additional time to discuss the
waiver with counsel. A.26-27. Justice Kloch then accepted Phillips’
guilty pleas to aggravated first-degree murder, and attempted
aggravated first-degree murder. A.27.
Phillips was remanded to custody pending the completion of a
pre-sentence investigation. A.27.
D.

Petitioner’s Motion to Withdraw the Guilty Plea

On December 15, 2006, in Erie County Court, Phillips filed a
pro se motion to withdraw his guilty plea on several grounds.
First,

he

claimed

that

in

his

post-arrest

interview

with

Investigator Newell, he had stated he did not know the men whom he
had shot were police officers.

According to Phillips, he believed

the men outside his family’s home were bounty hunters, whom he did
not intend to kill, but only intended to humiliate by leaving them
naked, trussed with duct tape, to be discovered by the police.
Phillips thus contended that he had a viable defense to the charges
of aggravated murder because he did not intend to kill anyone, and

-7-

he did know have reason to know his victims were police officers.
Phillips maintained that when he was originally interrogated by
Newell,

Newell

threatened

to

ensure

that

Phillips’

daughter

(Wright) and her mother (Crowe) would be convicted of “accessory to
murder” and “felony assault on a police officer”. Petitioner’s
Supporting Affidavit to Petition (“Pet’r Aff.”) at 1-2 (Dkt. #1).
The statement itself, however, does not indicate the specific
charges against Crowe and Wright.
Phillips stated that a few days later, he met with Attorney
Rich, who (1) confirmed Newell’s false account of the charges
against his family; (2) did not discuss his charges or any defenses
that may have been available to him based upon his confession to
Newell; (3) advised him that he should tell the court that he only
wanted him (Attorney Rich) in all of his cases; and (4) assured him
that he could not win at trial and that, if he lost, the “feds”
could give him the death penalty or put him in a “supermax” prison.
Id.
Phillips maintained that he never saw or signed the written
Memorandum of Understanding between him and the Chautauqua County
District Attorney’s Office. Prior to entering the guilty pleas,
stated Phillips, Attorney Rich provided him with a “format” that
explained how to respond to the trial court’s questions. Id.
Phillips states that when he refused to comply with the format,

-8-

Rich became angry and warned that if Phillips alerted the court,
his family would be prosecuted. Id.
Second, Phillips contended that defense counsel–knowing that
he did not want to plead guilty because he would have to admit
untrue facts–threatened Phillips that if he did not plead guilty,
his relatives would be prosecuted on charges of accessory-tomurder, and that he might face the death penalty in a federal
prosecution. Third, Phillips maintained that he was not guilty of
intentional

aggravated

murder.

Fourth,

he

contended

that

the

prosecutor had made promises (not identified in Phillips’ motion)
as part of the plea agreement that did not appear on the record,
such as verbally agreeing to place him in a prison close to home.
Id. Finally, Phillips demanded dismissal of Rich as his attorney.
See A.29-32.
Attorney Rich submitted a letter to Justice Kloch, alerting
him that Phillips would be filing a motion to withdraw his plea
based upon counsel’s alleged ineffectiveness and coercion. See
A.33-34. Attorney Rich requested to be relieved of his assignment,
in light of Phillips’ allegations. The District Attorney submitted
an affidavit opposing Phillips’ motion, attaching a letter from
Phillips, sent after the guilty plea, demanding that the prosecutor
provide an affirmation from the Commissioner of New York State
Department
certain

of

Correctional

conditions

of

Services

confinement

-9-

(“DOCS”)
in

guaranteeing

prison.

A.36-41.

him
The

prosecutor attached letters which had been sent to Town of Pomfret
Court and Village of Fredonia Court authorizing dismissal of the
charges against Crowe and Wright, respectively, after Phillips had
been sentenced. See A.39.
E.

Sentencing

On December 19, 2006, Phillips appeared with Attorney Rich
before Justice Kloch for sentencing. See A.68-82. Justice Kloch had
not received Phillips’ motion to withdraw the guilty plea, but had
received defense counsel’s letter describing the motion. Justice
Kloch expressed his opinion that defense counsel had “done a very
fine job of representing” Phillips, noting that he had been “very
diligent, . . . very accommodating to the [c]ourt”, and had gone
over to see Phillips “many times.” A.70. Justice Kloch noted that
he had asked Phillips “on many occasions whether or not [he] was
happy with this attorney,” and that Phillips had indicated, under
oath, he was satisfied with counsel’s representation. A.70-71.
Justice Kloch stated, “I see no reason why [Phillips was moving to
withdraw his plea] other than probably your concern about the fact
that you are before the [c]ourt now facing sentence and the sun is
going down in your life, and you are concerned about that.” A.71.
Justice Kloch then summarily denied Petitioner’s motion to withdraw
his guilty plea. Id.
With regard to Phillips’ demand for assurances from DOCCS
about his housing conditions and his threat to withdraw his plea if

-10-

these were not provided, Justice Kloch noted that he had spoken
with counsel for DOCCS. Justice Kloch stated, “They are awaiting
another convict. . . That’s all . . . . [C]ounsel said when he’s
ready to be delivered into the State, give us a call so we can make
arrangements, just like any other prisoner.” A.72. Phillips simply
replied, “Right.” Id. Noting that he did not see any reason for
concern in that regard, Justice Kloch clarified that neither the
court nor the District Attorney’s Office controlled DOCS, and told
Phillips,

“If

you

have

a

problem

with

[them],

you

bring

an

Article 78 proceeding just like any other convict.” A.73.
When Attorney Rich requested an adjournment to “formally put
together a paper to withdraw his plea[,]” Justice Kloch inquired as
to the basis of such a motion. A.74. Defense counsel understood
Phillips’ handwritten motion to be that his statements during the
plea colloquy were untrue and that “he’s not guilty at least of the
aggravated murder, attempted aggravated murder both [in Chautauqua
County] and in Chemung County.” A.74. Justice Kloch stated,
[M]y understanding from Justice Buckley down in Chemung
is you pled very guilty. You went beyond guilt to very
guilty. When I took your plea down in Erie County, it was
guilty as hell. When I asked you in here as we went
through the colloquy if you knew that this weapon was
dangerous, you said it was a very dangerous, very
powerful gun. We went through the colloquy, and you knew
what you were doing.
And there is no basis for withdrawal of the plea, so let
me save you the time, Mr. Phillips, unless I hear
something original . . . .”

-11-

A.74-75. Phillips protested that he had given a statement to state
police investigators that “stipulate[d] in the documents that I
never intentionally tried to kill anyone.” A.75. Justice Kloch
reminded Phillips that they had gone through a colloquy with
Phillips under oath:
You responded that you knew police officers were in that
location, and you knew the likelihood that these were
police officers, . . . and you shot at them. You
indicated to me that you shot at them, and that you were
cognizant of the fact that depending upon where you hit
them, it would kill them. And you told me you hit one in
the leg and one in the back or side. I believe you
indicated the side. So that’s sufficient for me as far as
a knowing, knowledgeable plea.
A.75-76. Phillips asserted that he had given the statement to “get
them [his family] out of trouble” and that he had “indicated
specifics” that proved he did not know the victims were police
officers (e.g., the were in full camouflage and wearing face
paint). A.76. Phillips announced, “I had no intention of killing
anyone. My intentions were to humiliate them, to tie them up with
duck [sic] tape, and call 911 and tell the State Police that there
were intruders.” Id. Justice Kloch responded, “[Y]ou went through
a colloquy before under oath. . . . I accepted a knowledgeable
guilty plea from you, and that closes the book on that.” A.77.
Prior to sentencing, Phillips said, “I would like to apologize
to the families [of the troopers]. . . . As I said before, I never
meant to kill anybody. I never meant to shoot anybody. Sorry.”
A.80. Justice Kloch noted that Phillips had “humiliated [him]self”
-12-

by his actions and commented that Phillips was “about to become
very irrelevant.” A.81. He then imposed the sentences agreed upon
as part of the plea–concurrent terms of life without parole for the
murder count, and forty years to life for the attempted murder
count. A.81-82.
F.

Direct Appeal

Represented by new counsel on direct appeal, Phillips asserted
that he (1) failed to properly allocute to the crimes to which he
was pleading guilty; (2) the trial court improperly denied his
motion to withdraw his guilty plea without conducting a hearing
regarding his allegations of coercion; and (3) the trial court
abused

its

discretion

in

denying

his

motion

to

dismiss

his

attorney. In a decision entered on November 14, 2008, the Appellate
Division, Fourth Department, of New York State Supreme Court
unanimously affirmed the conviction. People v. Phillips, 56 A.D.3d
1163 (4th Dept. 2008). The Fourth Department held that although
Phillips had preserved his challenge to the factual sufficiency of
the plea allocution, it was encompassed by his waiver of the right
to appeal. Id. at 1164. (citations omitted). In any event, the
claim was meritless, because during the plea allocution Phillips
admitted that he knew police officers were surveilling the location
where the crimes occurred, that the weapon he used could inflict a
fatal wound, and that he shot the two men. Thus, that court found,
the plea allocution was factually sufficient because it established

-13-

that Phillips “intended to kill the victims and that he ‘knew or
reasonably should have known’ that they were police officers.” Id.
(quoting N.Y. PENAL LAW § 125.26(1)(a)(i)).
With regard to the voluntariness of Phillips’ plea, the Fourth
Department

found

intelligently,

that

commenting

it

was

that

entered
the

into

“extensive

knowingly
plea

and

agreement”

resolved not only the charges underlying the direct appeal, but
also charges pending against him in Erie County, Chemung County,
and in United States District Court. Id. In addition, the plea
agreement ensured that the charges pending against his family
members would be dismissed. Id.
The Fourth Department further held that the trial court did
not abuse its discretion in denying Phillips’ motion to withdraw
his guilty plea, because he provided no basis to do so. Id.
(citations omitted). Rejecting the contention that the trial court
had abused its discretion by denying his motion to discharge
Attorney Rich as counsel, the Fourth Department held that the claim
was “encompassed by the plea and the waiver of the right to appeal
except

to

the

extent

that

the

contention

implicates

the

voluntariness of the plea, and that exception does not apply
here[.]” Id. (noting that Phillips “stated at the time of his plea
that he was satisfied with the services of his attorney, who
represented him in connection with the pending charges in all of

-14-

the respective jurisdictions” and had “failed to show good cause
for substitution of counsel”) (citations omitted).
Leave to appeal was denied by the New York Court of Appeals on
February 3, 2009. People v. Phillips, 12 N.Y.3d 761 (2009).
G. The First Motion to Vacate
In pro se papers dated September 9, 2008, Phillips moved to
vacate the judgment pursuant to New York Criminal Procedure Law
(“C.P.L.”) § 440.10, arguing that (1) the evidence before the grand
jury was insufficient; (2) his trial counsel was ineffective and
induced him to plead guilty by making false statements; (3) his
guilty plea was not knowing, voluntary, and intelligent; and
(4) the trial court abused its discretion by not only denying his
motion to withdraw the guilty plea, but also denying the motion to
dismiss his attorney. See Resp’t Ex. I; see also Resp’t Exs. J & K.
In

an

order

entered

on

January

28,

2009,

after

the

Fourth

Department had affirmed the conviction, Justice Kloch denied the
C.P.L. § 440.10 motion, finding that the issues raised in the
motion had been ruled upon by the Fourth Department and that there
were “no additional issues to be resolved by [him].” See Resp’t Ex.
L.
Although

Phillips

mailed

the

Chautauqua

County

District

Attorney a letter attaching a draft of an application for leave to
appeal the denial of his first C.P.L. § 440.10 motion (Resp’t
Ex.

M),

Phillips

did

not

perfect

-15-

an

appeal

in

the

Fourth

Department.

Neither

the

Fourth

Department

nor

the

District

Attorney’s Office have anything in their records demonstrating that
Phillips filed the leave application. Phillips states that he was
unable to perfect an appeal in a timely manner because his copy of
the C.P.L. § 440.10 motion was stolen when guards ransacked his
cell shortly after he filed the C.P.L. § 440.10 motion.
H.

Petitioner’s Second Motion to Vacate the Judgment

On December 10, 2009, Phillips filed a second pro se motion to
vacate the judgment pursuant to C.P.L. § 440.10, reiterating the
claims raised in the original C.P.L. § 440.10 motion, and also
contending that his guilty plea was procured by a conspiracy
between defense counsel, the prosecutor, and the trial court. See
Resp’t Ex. N. The District Attorney filed an affirmation opposing
the motion (Respt’ Ex. O), and Phillips submitted reply papers
(Resp’t Ex. P).
In an order entered on February 25, 2010, Justice Kloch denied
the motion, noting that he had been “painstaking in [his] efforts
to ensure that the protections afforded to all citizens were
applied to [Phillips].” Resp’t Ex. Q at 2. Justice Kloch held that
Phillips had “fail[ed] in his effort here to show that the court
was not diligent in safeguarding his constitutional rights.” Id. at
2.

Justice

Kloch

summarily

rejected

Phillips’

allegations

of

ineffective assistance of counsel and prosecutorial as “without

-16-

merit” and stated that there were no additional issues that had not
already been ruled upon by the Fourth Department. Id.
Phillips sought leave to appeal to the Fourth Department
(Resp’t Ex. R), and the District Attorney filed an affirmation in
opposition (Resp’t Ex. S), to which Phillips replied (Resp’t Ex.
T). In an order dated June 22, 2010, the Fourth Department denied
leave to appeal. See Resp’t Ex. U.
I.

The Federal Habeas Corpus Proceeding

Phillips instituted this pro se federal habeas proceeding on
November 30, 2010. In the original petition and the supplemental
petition, reading the claims broadly, Phillips argues that (1) his
conviction was obtained by use of a coerced confession; (2) his
trial counsel provided ineffective assistance, and operated under
a conflict of interest due to counsel’s interest in obtaining a
judgeship in Chemung County; (3) his guilty plea was coerced by
counsel and induced by counsel’s false statements; (4) the factual
allocution was insufficient to support the guilty plea; and (5) the
trial court improperly denied his motions to withdraw the guilty
plea and to dismiss counsel.
III. Timeliness
Respondent argues that Phillips’ habeas petition should be
dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1)(A), a
provision in the

Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 121. AEDPA amended

-17-

28 U.S.C. § 2244 to provide a one-year limitations period for the
filing of state habeas corpus petitions. The time period runs from
the latest of certain enumerated events–here, “the date on which
the judgment [of conviction] 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). The limitations period “does
not begin to run until the completion of direct appellate review in
the state court system and either the completion of certiorari
proceedings in the United States Supreme Court, or if the prisoner
elects not to file a petition for certiorari the time to seek
direct review via certiorari has expired.” Williams v. Artuz, 237
F.3d 147, 151 (2d Cir.), cert. denied, 534 U.S. 924 (2001). Since
a petitioner has ninety days from the entry of judgment in the
underlying state action to seek certiorari from the Supreme Court,
see SUP. CT. R. 13(3), Phillips’ final date of conviction, for the
purpose of assessing the start of the one year limitations period
under AEDPA, is the date upon which that ninety-day deadline
expired. In this case, that date is May 4, 2009 (February 3, 2009,
the date on which the New York Court of Appeals denied leave to
appeal, plus 90 days.).

Absent any statutory tolling that might be

available under 28 U.S.C. § 2254(d)(2), the limitations period for
Phillips ran from May 4, 2009, to May 4, 2010.
Although Phillips’ petitions were filed on December 6, 2010,
Respondent correctly acknowledges that under the “prison mailbox

-18-

rule,” a habeas court deems the petition filed on the date when
prisoner turned it over to correctional authorities for mailing.
See Houston v. Lack, 487 U.S. 266, 276 (1988). Respondent notes
that affidavits attached to the petition and supplemental petition
were sworn to on November 30, 2010, which is the correct date of
filing for purposes of the prison mailbox rule. Thus, for Phillips’
petition

to

be

timely,

tolling

of

the

limitations

period

is

required from May 4, 2010, to November 30, 2010. In other words, a
total of 210 days must be tolled.
A.

Statutory Tolling Under 28 U.S.C. § 2244(d)(2)

Section 2244(d)(2) provides that “[t]he 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. .
. .” 28 U.S.C. § 2244(d)(2). Phillips’ first C.P.L. § 440.10 motion
did not toll the statute of limitations, as Respondent contends,
because it ceased to be pending on January 28, 2009, well before
the limitations period began to run on May 4, 2009.
Martuscello,

No.

11–CV–02263

(JFB),

2011

WL

See Vasquez v.

6740556,

at

*3

(E.D.N.Y. Dec. 22, 2011) (“[A] a state court application that is
decided well before the statute of limitations begins to run does
not toll the statute of limitations.”) (citing Lozada v. Cripps,
No. 09 Civ. 8897(DAB)(THK), 2010 WL 7113583, at *5 (S.D.N.Y.
Dec. 17, 2010) (C.P.L. § 440.10 motion, C.P.L. § 330.30 motion, and

-19-

state writ of habeas corpus did not toll AEDPA’s statute of
limitations

because

they

were

decided

before

the

statute

of

limitations began to run), rep. and rec. adopted, No. 09 Civ.
8897(DAB), 2011 WL 3251576 (S.D.N.Y. July 28, 2011) .
Respondent concedes that Phillips’ second C.P.L. § 440.10
motion did toll the limitations period for 193 days–from December
10, 2009 (the date it was filed), to June 22, 2010 (the date the
Appellate Division denied leave to appeal). See Clark v. Barkley,
51 F. App’x. 332, 333-34 (2d Cir. 2002) (C.P.L. § 440.10 motion
ceases to be “pending” when the Appellate Division has denied leave
to appeal).

Noting that the Second Circuit applies the “prison

mailbox rule” to state collateral motions, see Fernandez v. Artuz,
402 F.3d 111, 116 (2d Cir. 2005), Respondent explains that the
tolling period began when Phillip filed his second pro se C.P.L.
§ 440.10 motion on the date written on the motion’s front page:
December 10, 2009. Under Carey v. Saffold, 536 U.S. 214 (2000),
which held that the AEDPA tolling period includes the time between
a lower state court’s decision and the filing of a notice of
appeal, Respondent agrees that Phillips’ tolling period ended on
June 22, 2010, the date that the Fourth Department denied leave to
appeal the trial court’s denial of the C.P.L. § 440.10 motion.
Respondent argues that Phillips’ petition is untimely because the
total tolled time between December 10, 2009, and June 22, 2010, is
only 193 days, 17 days shy of the 210 days of tolling required.

-20-

Respondent’s calculations appear to be correct, and Phillips
does not dispute them. Phillips, however, argues that he did not
know his petition was untimely, that he did not act in bad faith,
and that he is entitled to equitable tolling of the statutory
limitations

period.

See

generally

Petitioner’s

Reply

(“Pet’r

Reply”) (Dkt. #15).
B.

Equitable Tolling

“Equitable tolling allows courts to extend the statute of
limitations beyond the time of expiration as necessary to avoid
inequitable circumstances.” Johnson v. Nyack Hosp., 86 F.3d 8, 12
(2d

Cir.

equitable

1996).

Recently,

tolling

is

the

Supreme

applicable

to

Court

the

confirmed

AEDPA

that

statute

of

limitations. Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549,
2560,

177

L.

Ed.2d

130

(2010).

A

petitioner

is

entitled

to

equitable tolling, however, only if he can show that he pursued his
rights

diligently

and

that

some

extraordinary

circumstances

prevented him from filing a timely petition. Id. at 2562. Accord,
e.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Valverde
v. Stinson, 224 F.3d 129, 133–34 (2d Cir. 2000).
Phillips

argues

that

he

did

not

know

his

petition

was

untimely, implying that he was not aware of the applicable statute
of limitations. A pro se litigant’s misunderstanding of the law
regarding

the

statute

of

limitations

does

not

constitute

“extraordinary or unusual circumstances” preventing him from filing

-21-

a timely petition. See Smaldone v. Senkowski, 273 F.3d 133, 138–39
(2d Cir. 2001) (attorney’s mistaken belief as to tolling period
does not give rise to the “extraordinary circumstances” required
for equitable tolling); Hickey v. Senkowksi, No. 02 Civ. 1437(DC),
2003 WL 255319, at *4 (S.D.N.Y. Feb. 4, 2003) (“Plaintiff’s mistake
as to when his grace period began accruing is not a basis for
equitable tolling.”); Fennell v. Artuz, 14 F. Supp.2d 374, 377
(S.D.N.Y. 1997) (lack of education or familiarity with legal
research does not warrant equitable tolling).
Next, Phillips alleges that he was prevented from filing a
timely habeas petition because is subjected to repeated cell moves
and is constantly disrupted by noisy inmates. See Pet’r Reply at 2
(Dkt.

#15).

“Generally,

transfers

between

prison

facilities,

solitary confinement, lockdowns, restricted access to the law
library, and an inability to secure court documents do not by
themselves
Walker,

qualify

268

F.

as

Supp.

extraordinary

circumstances.”

2d

(E.D.N.Y.

154,

158

2003)

Amante

v.

(citation

omitted); see also Hizbullahankhamon v. Walker, 105 F. Supp.2d 339,
344 (S.D.N.Y. 2000) (“While solitary confinement does present an
obstacle to filing a timely habeas petition, it does not qualify as
an extraordinary circumstance.”), aff’d, 255 F.3d 65 (2d Cir.
2001), cert. denied, 536 U.S. 925 (2002); Montalvo v. Strack,
No. 99 Civ. 5087, 2000 WL 718439, at *2 (S.D.N.Y. June 5, 2000)

-22-

(holding that transfers between prison facilities do not constitute
“extraordinary circumstances” for purposes of equitable tolling).
Phillips’ allegation that guards ransacked his cell and stole
his first C.P.L. § 440.10 motion warrants further discussion,
however, as the Second Circuit has held that “[t]he intentional
confiscation of a prisoner’s habeas corpus petition and related
legal papers by a corrections officer is ‘extraordinary’ as a
matter of law.” Valverde, 224 F.3d at 133 (citing Morello v. James,
810

F.2d

344,

347

(2d

Cir.

1987)

(holding

that

“intentional

obstruction of a prisoners access to the courts” by means of
confiscating his legal work product “is precisely the sort of
oppression that [violates] the Fourteenth Amendment”)). Phillips
states that “[a]t some point not long after he sent such [i.e., the
first C.P.L. § 440.10 motion] to the lower court, his cell was
destroyed by guards and virtually all of his legal documents were
taken and never returned.”

Id., ¶5. This allegation would place

the timing of the destruction of his papers in the September 2008
timeframe, which is when he filed his first C.P.L. § 440.10 motion.
Phillips, however, asserts that he filed his first C.P.L. § 440.10
motion in 2009, Pet’r Reply at 2, ¶5. (Dkt. #15). The discrepancies
in the alleged date of the confiscation, and lack of other detail
regarding the incident, are factors tending to call into question
the credence of Phillips’ account. Nevertheless, the Court accepts
Phillips’ allegation regarding the confiscation.

-23-

The Second Circuit explained in Valverde that “a person is
plainly ‘prevented’ from filing a pleading for some period of time
if he is deprived of the sole copy of that pleading,” something
that both the petitioner in Valverde and Phillips assert happened.
Id.

(finding

that

petitioner

had

shown

“extraordinary

circumstances” sufficient to withstand a motion to dismiss where he
submitted an affirmation that the confiscation of Valverde’s legal
papers constituted ‘misconduct on the part of the Correction
Officer’ and that this misconduct ‘prevented him from filing his
federal writ of habeas corpus within the one year [period of]
limitation’” and there was “no evidence in the record rebutting
these assertions”; remanding to district court to determine whether
the confiscation of his legal papers “prevented” him from filing
his petition on time).
Phillips was not able to obtain an extra copy of his C.P.L.
§

440.10

motion

from

the

trial

court

or

from

the

District

Attorney’s Office in order to perfect his appeal. Thus, he was
“required to abandon” that motion and construct another one; he
made copies of the second motion and gave them to other inmates for
safekeeping. Pet’r Aff., ¶8 (Dkt. #15). Phillips filed his second
C.P.L. § 440.10 motion eleven (11) months after he learned that his
first motion had been denied in January 2009.
Phillips
prevented

him

contends
from

that

the

perfecting

guards’

the

-24-

appeal

theft
of

of

that

his

papers

motion

for

exhaustion purposes and required him to draft another C.P.L.
§ 440.10 motion.

Even though the document in question was not a

habeas

destroying

petition,

a

prisoner’s

state

motion

is

an

“intentional obstruction of a prisoner’s access to the courts”
because a petitioner generally cannot obtain habeas relief on a
claim unless he has fully exhausted his state remedies. See 28
U.S.C. § 2254(b)(1). Based upon the Second Circuit’s decision in
Valverde, Phillips’ loss of the sole copy of his C.P.L. § 440.10
motion

at

the

“extraordinary

hands

of

prison

circumstance”

officials

for

purposes

could
of

constitute

tolling

an

AEDPA’s

limitations period. See Valverde, 224 F.3d at 133-34. Nonetheless,
he still must demonstrate that he exercised “reasonable diligence”
throughout the time he seeks to have tolled. Valverde, 224 F.3d at
134 (“[A]ssuming that these extraordinary circumstances occurred,
preventing the petitioner from filing his petition for some length
of time, we must still determine whether they ‘prevented him from
filing his petition on time.’”)(quoting Smith v. McGinnis, 208 F.3d
at

17

(emphasis

added

in

Valverde).

This

standard

calls

for

“reasonable diligence, not maximum feasible diligence,” Holland v.
Florida, 130 S. Ct. at 2565 (internal quotation marks and citation
omitted), “which a petitioner may satisfy by showing that he
“‘act[ed] as diligently as reasonably could have been expected
under the circumstances,’” Harper v. Ercole, 648 F.3d 132, 139
(2d Cir. 2011) (quoting Baldayaque v. United States, 338 F.3d 145,

-25-

153 (2d Cir. 2003) (emphasis in original; alteration in Harper)).
The petitioner must demonstrate that “‘he acted with reasonable
diligence throughout the period he seeks to toll[.]’” Harper, 648
F.3d at 139 (quoting Belot v. Burge, 490 F.3d 201, 205 (2d Cir.
2007)).
The question, then, is whether Phillips acted with reasonable
diligence from the time his legal papers were confiscated in the
time-period between September 2008, and January 2009, to the time
he actually filed his petition on November 30, 2010. E.g., Muller
v. Greiner, No. 03 Civ. 1844(SAS), 2004 WL 97687, at *3 (S.D.N.Y.
Jan. 20, 2004). The Court notes that at least eleven (11) months
elapsed between the time he discovered he was unable to perfect the
appeal of his first C.P.L. § 440.10 motion (which had been denied
in January 2009) because prison guards had confiscated his legal
papers and the time he filed his second C.P.L. § 440.10 motion on
December 10, 2009. If, as Phillips states at one point in his
pleadings, that the motion was confiscated at the time he filed it
(i.e., September 2008), then approximately thirteen (13) months
passed before he filed his second C.P.L. § 440.10 motion. Courts in
this Circuit have found similar delays in filing to demonstrate a
lack of “reasonable diligence” in the equitable tolling context.
See, e.g., Lindo v. Lefever, 193 F. Supp.2d 659, 663 (E.D.N.Y.
2002) (finding that petitioner did not act with the reasonable
diligence necessary to receive equitable tolling where, after being

-26-

notified that certain claims were unexhausted, he waited two months
before filing the necessary C.P.L. § 440.10 motion, and after that
motion ceased to be pending, he waited approximately nine months
before filing the federal habeas petition).
Phillips has not pointed to specific occurrences during this
time

period

that

would

qualify

as

additional

extraordinary

circumstances interfering with his ability to prepare a second
C.P.L. § 440.10 motion. Phillips states that he is surrounded by
noisy and disruptive inmates, and is subject to “constant cell
moves and destruction and theft of his property[,]” Pet’r Reply, ¶5
(Dkt. #1), but he has not identified any other particular instances
of theft or destruction apart from the incident involving the first
C.P.L. § 440.10 motion. General allegations unsupported by evidence
are insufficient to demonstrate “extraordinary circumstances” or to
demonstrate

other

facts

necessary

to

a

finding

of

equitable

tolling. See Collins v. Artus, 496 F. Supp.2d 305, 313 (S.D.N.Y.
2007) (Chin, D.J.) (“To establish extraordinary circumstances, a
petitioner must support his allegations with evidence; he cannot
rely solely on personal conclusions or assessments. Further, the
party must show that he was unable to pursue his legal rights
during

the

entire

period

that

he

seeks

to

toll.”)

(citation

omitted); see also Walker v. Johnston, 312 U.S. 275, 286 (1941)
(habeas petitioner has the burden of “sustaining his allegations by

-27-

a preponderance of evidence” on collateral review); accord, e.g.,
Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997).
The

remaining

factors

Phillips

cites

as

hindering

his

preparation of a timely petition are nuisances that are part and
parcel

of

prison

life

and

do

not

constitute

“extraordinary

circumstances”. See, e.g., Gant v. Goord, 430 F. Supp.2d 135, 139
(W.D.N.Y. 2006) (“In general, the difficulties attendant on prison
life, such as transfers between facilities, solitary confinement,
lockdowns, restricted access to the law library, and an inability
to

secure

court

documents,

do

not

by

themselves

qualify

as

extraordinary circumstances.”) (citations omitted); Lora v. United
States, 07 Civ. 6936, 2007 WL 4966776, at *3 (S.D.N.Y. Nov. 21,
2007) (“Difficulties in pursuing a habeas petition created by the
routine restrictions of prison life, however, are not extraordinary
circumstances for purposes of equitable tolling.”) (quotations
omitted),

report

and

recommendation

adopted,

2008

WL

577174

(S.D.N.Y. Mar. 3, 2008).
Finally, “the fact that it took [Phillips] some time to
research the law is not an extraordinary circumstance that would
justify

equitable

2395(SHS)(AJP),

tolling.”

2011

WL

Prescod

182063,

at

v.
*5

Brown,

No.

(S.D.N.Y.

10

Civ.

Jan.

20,

2011) (citing, inter alia, Ormiston v. Nelson, 117 F.3d 69, 72 n.
5 (2d Cir. 1997) (“Mere ignorance of the law is, of course,
insufficient to delay the accrual of the statute of limitations.”);

-28-

see also Plowden v. Romine, 78 F. Supp.2d 115, 120 (E.D.N.Y. 1999)
(“There is no limiting principle to [petitioner’s] argument that
simple ignorance-absent any showing of diligence on his part or
allegations of impediments to his staying informed about this
case-should provide a basis for equitable tolling; to hold that the
statute of limitations should be extended in this case would allow
the

statute

to

be

extended

indefinitely.”).

Under

these

circumstances, the Court cannot conclude that Phillips exercised
“reasonable diligence” in taking at least eleven (11) months in
which to construct what he deems a duplicate C.P.L. § 440.10
motion. See Walker v. Artuz, No. 98-2572, 2002 WL 34243994, at *3
(2d Cir. May 17, 2002) (unpublished opn.) (“[N]either Walker’s
diligence in filing his first habeas petition nor his pro se status
is

sufficient

to

excuse

his

failure

to

act

with

reasonable

diligence in waiting more than ten months after his first petition
was dismissed to file his second habeas petition, particularly
given the fact that the claims he raised in that petition had been
exhausted in his direct appeal and, thus, were available to him at
the time the first petition was dismissed.”).
The

next

portion

of

time

for

which

Phillips

must

show

“reasonable diligence” is the period of time after his second
C.P.L. § 440.10 proceeding was completed. As noted above, that
motion

ceased

to

be

“pending”

for

purposes

of

28

U.S.C.

§ 2244(d)(2) on June 22, 2010, when the Fourth Department denied

-29-

leave to appeal. However, Phillips waited another five (5) months
before filing his federal habeas petition on November 30, 2010.
Again, apart from the alleged cell moves and noisy fellow inmates,
Phillips has not identified any particular occurrences during this
time-period that prevented him from timely filing his habeas
petition. Cf. Rush v. Lempke, No. 09–cv–3464 (JFB), 2011 WL 477807,
at *8 (E.D.N.Y. Feb. 2, 2011) (petitioner could not show reasonable
diligence where he waited seven months after he was denied final
leave to appeal before requesting an extension of time to file his
habeas petition).
For a limitations period to be tolled, a petitioner “must have
acted with reasonable diligence throughout the period he seeks to
toll.”

Smith,

circumstances

208

F.3d

(e.g.,

at

cell

17

(emphasis

moves

and

added).

disruptive

Even

if

inmates)

the
that

Phillips alleges may have at times interfered with the preparation
of his second C.P.L. § 440.10 motion and habeas petition, he has
not described circumstances that interfered with his preparation of
pleadings for any substantial portion of the sixteen-odd months
which tolling is required. That Phillips alleges he did not know
his petition was untimely suggests that he was not aware of how
much time had elapsed on the statute of limitations; however, as
discussed above, ignorance of the law is not an “extraordinary
circumstance” and by definition, his failure to keep apprised of
the status of the limitations period shows a lack of reasonable

-30-

diligence. Acting with “reasonable diligence”, Phillips could have
completed his second C.P.L. § 440.10 petition and filed a lesspolished, but timely, petition. Because the Court finds that
Phillips is ineligible for equitable tolling, the petition and
supplemental petition are dismissed as time-barred. See Belot v.
Burge,

490

F.3d

201,

207-08

(2d

Cir.

2007)

(district

court

dismissed as untimely petitioner who filed a two-day-late petition,
and denied equitable tolling of habeas limitations period, on
grounds that the petitioner should have begun his preparation
earlier and filed an unpolished, but timely, petition, rather than
waiting until his law library access was restored following prison
lockdown to enable him to file a more polished, but untimely,
petition;

circuit

court

held

that

this

was

not

an

abuse

of

discretion).
IV.

Conclusion
For the reasons discussed above, the petition and supplemental

petition are dismissed with prejudice. Because Petitioner has
failed

to

make

a

substantial

showing

of

a

denial

of

a

constitutional right, the Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
_________________________
MICHAEL A. TELESCA
United States District Judge
DATED:

February 10, 2012
Rochester, New York
-31-