Allah v. Graham
Filing
12
AMENDED DECISION AND ORDER - Amended Decision and Order (Dkt.10) dismissing the petition. Signed by Hon. Michael A. Telesca on 1/4/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEMET ALLAH, a/k/a, BEN LOFTON,
Petitioner,
No. 11-CV-0425(MAT)
DECISION AND ORDER
-vs(AMENDED)
HAROLD D. GRAHAM,
Respondent.
I.
Background
Pro se petitioner Kemet Allah, a/k/a Ben Lofton (“Petitioner”
or “Allah”) seeks a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on the basis that he is being unconstitutionally detained in
Respondent’s custody. Petitioner is incarcerated pursuant to a
judgment entered against him on August 5, 1994, in Monroe County
Court (Connell, J.) of New York State, following a jury verdict
convicting him of multiple counts of criminal possession of a
controlled substance
and criminal possession of a weapon, as well
as one charge each of first degree robbery and fourth degree grand
larceny. Petitioner was sentenced to an aggregate prison term of
37½ years to life.1
1
The sole amendment to the Decision and Order is the completion
of the last sentence of the first paragraph to read that
“Petitioner was sentenced to an aggregate prison term of 37½ years
to life.”
After the enactment of New York’s Drug Law Reform Act of 2004
and 2005 (“the DLRA”), Petitioner applied for resentencing and
requested
that
he
be
resentenced
to
determinate
terms
of
imprisonment equal to or less than the time already served. The
prosecution requested that Petitioner be resentenced, as a firsttime felony drug offender, to determinate terms of 20 years
on his
conviction for first degree criminal sale of a controlled substance
and six years for second degree criminal possession of a controlled
substance. On January 18, 2006, the County Court (Geraci, J.)
resentenced Petitioner as requested by the prosecution, and issued
a written decision on January 20, 2006, memorializing its ruling.
See
Respondent’s
Exhibit
(“Resp’t
Ex.”)
N
(County
Court
Resentencing Order) & O (Transcript of Resentencing Hearing). The
resentencing
court
stated
on
the
record
and
its
order
that
Petitioner was resentenced to 20 years incarceration and 5 years of
post-release supervision (“PRS”) on his conviction for first degree
criminal sale of a controlled substance and 6 years incarceration
and 5 years PRS on his conviction for second degree criminal
possession of a controlled substances, those sentences “to run
concurrent with each other.” Resp’t Ex. N at 4. Neither in its oral
ruling nor in its decision and order did the resentencing court
explicitly mention any of the sentences imposed with regard to
Petitioner’s other convictions. See id.
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The
clerk
commitment
of
the
order,
court
along
signed
with
a
an
amended
certificate
sentence
of
and
conviction,
reflecting the resentences on the two drug-related convictions.
These documents stated that “[a]ll other terms of the sentence
stand”. Resp’t Ex. P (Commitment Papers).
Petitioner did not file a direct appeal with regard to the
resentencing but instead, through counsel, moved by order to show
cause filed February 24, 2009, in Monroe County Court for a writ of
mandamus to compel the clerk of the court to issue a revised
sentence and commitment order and certificate of conviction stating
that all of Petitioner’s sentences were to run concurrently with
each other. Petitioner noted that the resentencing court did not
affirmatively
state
consecutively
to
the
that
the
latter
former
sentences
sentences.
were
Petitioner
to
run
essentially
argued that the resentencing court direction that the two drug
sentences were to be served concurrently, and its silence as to the
remainder
of the
(including
those
concurrently
certificate
for
with
of
sentences, meant
the
each
that
non-drug
other.
conviction
all of
offenses)
Petitioner
prepared
by
the sentences
were now
contended
the
clerk
to
run
that
the
improperly
described the sentences for the non-drug convictions as running
consecutively to the drug sentences.
The
Monroe
County
District
Attorney’s
Office
received
permission to intervene in the action, and submitted opposition
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papers arguing that Petitioner had failed to state a viable cause
of action and that a mandamus proceeding did not lie because
Petitioner could have raised his claim on direct appeal or in a
motion to set aside the sentence pursuant to C.P.L. § 440.20.
Following oral argument on May 8, 2009, the County Court
issued an oral ruling denying the petition and holding that nothing
in the resentencing proceeding altered the sentences for the nondrug convictions. Thus, they were to run consecutively to the
sentences for the drug convictions, as originally ordered by the
sentencing court in 1994.
Petitioner’s
appeal
of
the
denial
of
mandamus
was
unsuccessful. Allah v. Hendricks, 73 A.D.3d 1436 (4th Dept. 2010).
The Appellate Division, Fourth Department, noted that the sentences
originally imposed on the drug charges were set to run concurrently
with each other and consecutively to the sentences imposed on the
robbery charges. The Fourth Department agreed with Petitioner that
during resentencing, the court did not explicitly state whether the
drug sentences would continue to run consecutively to the sentences
imposed on the non-drug charges. Allah, 73 A.D.3d at 1437. However,
even assuming that the resentencing court had the authority to
order the non-drug sentences to run concurrently with the amended
drug sentences, the extraordinary remedy of mandamus did not lie
because the issue of whether the commitment papers accurately
reflected the new sentences could have been raised on direct appeal
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from the resentencing. Id. The New York Court of Appeals denied
leave to appeal. Allah v. Hendricks, 15 N.Y.3d 704 (2010).
Petitioner filed the instant habeas petition on May 15, 2011,
raising the same claim he argued in support of his motion for a
writ of mandamus–namely, that
the clerk of the County Court
improperly amended his certificate of conviction so as to cause his
revised sentences
on
the
two
felony
drug
convictions
to
run
consecutively to, rather than concurrently with, the sentences on
his remaining 1994 convictions. Petitioner does not challenge the
constitutionality
answered
the
of
his
petition,
underlying
asserting
that
convictions.
it
is
Respondent
untimely
under
28 U.S.C. § 2244(d)(1); that the sole claim raised in the petition
is unexhausted; and that even if the Court were to reach the merits
of the unexhausted claim under 28 U.S.C. § 2254(b)(2), it should be
dismissed as not cognizable on habeas review. Petitioner did not
file any reply papers.
As discussed further below, the petition is dismissed as
untimely.
II.
Timeliness of the Petition
A.
Timeliness Calculation and Statutory Tolling
Title I of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Pub. L. No. 104-132, § 101, 110 Stat. 1214, 1217
(codified at 28 U.S.C. § 2244), imposes a one-year time limit for
filing habeas petitions. See 28 U.S.C. § 2244(d)(1)(A)-(D). The
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statute of limitations runs from the latest of the following four
events:
(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.
28 U.S.C. § 2244(d)(1)(A)-(D). For most petitioners, including
Allah, Section 2244(d)(1)(A) sets the applicable starting point for
the one-year period of limitation–i.e., the date on which the
conviction became final. See Burton v. Stewart, 549 U.S. 147, 15657 (2007).
The Supreme Court has held that “‘[f]inal judgment in a
criminal case means sentence. The sentence is the judgment.’” Id.
at 156 (quoting Berman v. United States, 302 U.S. 211, 212 (1937)).
Thus, the one-year limitations period in Allah’s case began to run
when the judgment entered in connection
with the resentencing
became final. See, e.g., Walker v. Perlman, 556 F. Supp.2d 259, 262
(S.D.N.Y. 2008) (“[T]he habeas limitations clock . . . did not
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begin to run until [the petitioner’s] second amended sentence
became final. . . .”) (citing Burton, 549 U.S. at 157). This rule
applies regardless of how much time has elapsed since the original
sentence was imposed. See 556 F. Supp.2d at 263 (holding that “a
habeas petition filed more than five years after a state prisoner
was convicted of a crime, but less than two months after a
corrected sentence imposed on resentencing became final, was timely
filed
even
though
his
habeas
petition
challenged
only
his
underlying conviction and not the corrected sentence” because the
“‘judgment’ that triggered the one-year statute of limitations
became final when the corrected sentence pursuant to which the
prisoner was in custody became final, thereby making both his
conviction and sentence final”).
Here, Petitioner was resentenced on January 18, 2006, and he
did not file a direct appeal from the resentencing. Therefore, his
conviction became final thirty (30) days later on February 17,
2006, when the period for filing a notice of appeal to the Fourth
Department expired. See N.Y. CRIM. PROC. LAW § 460.10(1)(a); see also
Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (finding that
the
one-year
limitations
period
began
running
on
when
the
petitioner’s time for filing a notice of appeal from his judgment
of
conviction
statutory
expired
tolling
from
under
C.P.L.
properly
-7-
§
filed
460.10(1)).
state-court
Absent
any
collateral
motions
under
28
U.S.C.
§
2244(d)(2),
Petitioner
had
until
February 17, 2007, to file his habeas corpus petition.
The prison mailbox rule deems pleadings submitted by pro
se and incarcerated litigants to have been “filed” on the date the
pleadings are turned over to prison authorities for mailing. See
Houston v. Lack, 487 U.S. 266, 270 (1988); Noble v. Kelly, 246 F.3d
93,
97
(2d
Cir.)
(applying
prison
mailbox
rule
to
habeas
petitions), cert. denied, 534 U.S. 886 (2001). Here, the habeas
petition is deemed to have been filed on May 15, 2011, the date
that Allah signed the petition. See, e.g., Corrigan v. Barbery, 371
F. Supp.2d 325, 328 n. 4 (W.D.N.Y. 2005) (where it was unclear when
inmate gave petition to prison officials, court assumed that
petitioner submitted petition on the same date it was purportedly
signed and dated). It is clearly untimely, having been filed over
four
years
Petitioner
after
the
qualifies
one-year
for
limitations
statutory
tolling
expired,
under
28
unless
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
under this subsection.” 28 U.S.C. § 2244(d)(2). Allah suggests in
his petition that the limitations period was tolled while he filed
certain “applications for State post-conviction relief and other
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collateral review with respect to his judgment of conviction and
sentence.” Petition (“Pet.”), ¶18 (Dkt #1). Because the limitations
period did not begin to run until February 17, 2006, the 1996
litigation cannot serve to toll the running of the limitations
clock. See Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir. 2005)
(“To toll the AEDPA statute of limitations, the state petition must
be . . . pending during the tolling period.”). The mandamus
petition filed in connection with the resentencing likewise did not
toll the limitations period because it was filed on February 24,
2009, two years after the one-year limitations period expired on
February 17, 2007. See id.; see also Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000) (per curiam) (“[P]roper calculation of
Section 2244(d)(2)’s tolling 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.”).
B.
Equitable Tolling
Because Allah’s petition was filed outside the limitations
period,
and
he
is
not
eligible
for
statutory
tolling
under
28 U.S.C. § 2244(d)(2), his only recourse is to avail himself of
equitable tolling. Holland v. Florida, ___ U.S. ___, ___, 130 S.
Ct. 2549, 2560, 177 L. Ed.2d 130 (2010). A petitioner is entitled
to equitable toling if he shows that (1) he has been pursuing his
or her rights diligently; and (2) some extraordinary circumstance
-9-
obstructed his timely filing the petition. Id. at 2562. This
decision is left to the sound discretion of the district court.
Belot v. Burge, 490 F.3d 201, 206-07 (2d Cir. 2007).
Only
in
“‘rare
and
exceptional
circumstances’”
may
“a
petitioner . . . invoke the courts’ power to equitably toll the
limitations period.” Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.
2004) (internal quotation omitted); see also Smith, 208 F.3d at 17
(equitable tolling of AEDPA’s limitations period applies only in
“rare and exceptional circumstances”). Petitioner does not assert
entitlement to equitable tolling, and he has made no attempt to
demonstrate that he labored under circumstances that could qualify
as extraordinary. Since Petitioner has offered no explanation for
his failure to file this habeas petition in a timely fashion, he
cannot fulfill his burden of proof. See, e.g., Pace v. DiGuglielmo,
544 U.S. 408, 419 (2005) (to qualify for equitable tolling, the
petitioner “bears the burden of establishing two elements: (1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” and prevented him from
timely filing).
III. Non-Cognizability of the Claim
Even if the petition were timely, it nevertheless would be
dismissed
cognizable
because
the
sole
constitutional
claim
question.
raised
See
fails
28
to
U.S.C.
present
§
a
2254(a);
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the
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province
of
a
federal
habeas
court
to
reexamine
state-court
determinations on state-law questions. In conducting habeas review,
a
federal
violated
court
the
is
limited
Constitution,
to
deciding
laws,
or
whether
treaties
of
a
conviction
the
United
States.”) (citations omitted).
In the his mandamus petition and the subsequent appeal from
the denial of mandamus, Petitioner’s appellate counsel cited New
York Penal Law § 70.25, which provides in relevant part as follows:
[W]hen a person who is subject to any undischarged term
of imprisonment imposed at a previous time . . . is
sentenced to an additional term of imprisonment, the
sentence or sentences imposed by the court shall run
either concurrently or consecutively with each other and
the undischarged term or terms in such manner as the
court directs at the time of sentence.
N.Y. PENAL LAW § 70.25(1)(a). The statute further provides that an
indeterminate or determinate sentence shall run consecutively with
all other terms, in the absence of a court order to the contrary.
Id. However, “there is no constitutionally cognizable right to
concurrent, rather than consecutive, sentences.” United States v.
McLean, 287 F.3d 127, 136-37 (2d Cir. 2002) (internal quotations
omitted). Petitioner’s sentencing claim does not present a federal
question upon which this Court may grant habeas relief. See, e.g.,
Charles v.
Fischer,
516
F.
Supp.2d
210,
224
(E.D.N.Y.
2007)
(holding that the imposition of consecutive sentences under state
law is not a ground for habeas relief).
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IV.
Conclusion
For the foregoing reasons, the petition (Dkt. #1) is dismissed
as untimely. No certificate of appealability shall issue because
Petitioner has not shown “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it
debatable
whether
th[is]
.
.
.
[C]ourt
was
correct
in
its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000);
see also Bethea v. Girdich, 293 F.3d at 577 (Slack standard applies
to request by habeas petitioner, whose petition was dismissed as
untimely under AEDPA, for a certificate of appealability).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and
FED. R. APP. P. 24(a)(3), that any appeal from this Decision and
Order would not be taken in good faith, and therefore the Court
denies leave to appeal as a poor person. Coppedge v. United States,
369 U.S. 438, 445-46 (1962). Any application for leave to appeal in
forma pauperis must be made to the Second Circuit Court of Appeals
in accordance with FED. R. APP. P. 24(a)(1), (4), & (5). See id.
Petitioner must file any notice of appeal with the Clerk’s Office,
United States District Court, Western District of New York, within
thirty (30) days of the date of judgment in this action.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
January 4, 2013
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