Atkins v. Chappius

Filing 7

DECISION AND ORDER dismissing the plaintiff's petition as untimely. (Copy of Decision and Order sent by first class mail to Plaintiff.) (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/26/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UKIAH ATKINS,
Petitioner,

No. 1:13-CV-00956 (MAT)
DECISION AND ORDER

-vsSUPERINTENDENT PAUL CHAPPIUS,
Respondent.

I.

Introduction
Ukiah Atkins (“petitioner”), proceeding pro se, petitions this

Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is incarcerated pursuant to a judgment entered on
September 22, 2003, in Monroe County Court (Geraci, J.), following
a jury verdict convicting him of murder in the second degree (N.Y.
Penal Law §§ 125.25(1)). Petitioner was sentenced to a prison term
of 25 years to life.
II.

Factual Background and Procedural History
Petitioner’s conviction arose from a March 18, 2003 incident

in which petitioner shot and killed his victim, Bernea Porter.
After a jury trial, a jury convicted petitioner of one count of
intentional second-degree murder. On September 22, 2003, the court
sentenced petitioner to an indeterminate term of 25 years to life.
Petitioner filed a counseled direct appeal to the New York
State Supreme Court, Appellate Division, Fourth Department. The
Fourth Department unanimously affirmed the conviction, and the
New York State Court of Appeals denied leave to appeal. See People

v. Atkins, 39 A.D.3d 1230 (4th Dep’t 2007), lv. denied, 9 N.Y.3d
872. The

Fourth

Department

specifically

rejected

petitioner’s

arguments that the verdict was against the weight of the evidence,
that petitioner was denied effective assistance of counsel, and
that the trial court gave an improper moral certainty charge. Id.
at 1231.
On October 30, 2008, petitioner filed a pro se motion to
vacate the judgment pursuant to New York Criminal Procedure Law
(“CPL”) § 440.10, arguing that trial counsel was ineffective for
failing to properly investigate an alibi defense. On April 22,
2009, the trial court denied petitioner’s motion, finding that any
alibi

defense

was

questionable

and

defense

counsel

proceeded

according to a “preconceived strategy.” Doc. 5-2 at 255. The Fourth
Department granted petitioner permission to appeal, and on June 7,
2013, it affirmed the trial court’s denial of the CPL § 440.10
motion. See People v. Atkins, 107 A.D.3d 1465, 1465 (4th Dep’t
2013), lv. denied, 21 N.Y.3d 1040.
This habeas petition followed, in which petitioner contends
that (1) the trial court erred in refusing a jury instruction on
circumstantial evidence; and (2) trial counsel was ineffective for
conceding that the prosecutor was entitled to present evidence of
uncharged crimes and for failure to properly pursue an alibi
defense. Respondent contends that the petition is untimely. For the

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reasons discussed below, the Court agrees, and therefore will not
address the merits.
III. Timeliness
AEDPA requires that a federal habeas corpus petition be filed
within one year of the date on which the petitioner's state court
conviction

becomes

final.

28

U.S.C.

§

2241(d)(1).

A

habeas

petitioner’s conviction generally becomes final for AEDPA purposes
upon, “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. 2001). In this case, the Court of Appeals denied leave to
appeal

on

August

13,

2007.

See

Atkins,

9

N.Y.3d

at

872.

Petitioner’s state court conviction became final 90 days later on
November 12, 2007, when petitioner’s time to seek a writ of
certiorari to the Supreme Court expired.
The statute of limitations was tolled pending petitioner’s CPL
§ 440.10 motion, which was filed on October 30, 2008, 353 days
after petitioner’s conviction became final, and concluded on August
28, 2013, when the New York State Court of Appeals denied leave to
appeal. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214,
217, 219-221 (2002). After leave was denied, petitioner had 12
days, until September 9, 2013, in which to file the instant
petition. The petition was not filed until September 24, 2013, 27

3

days later. However, the petition is dated September 11, 2013, and
the Court will assume that petitioner gave the petition to prison
officials on that date. See Noble v. Kelly, 246 F.3d 93, 97
(2d Cir. 2001) (applying mailbox rule to petitions for habeas
relief). Thus, the petition is untimely because it was filed two
days after the expiration of the statute of limitations. See
Saunders v. Senkowski, 587 F.3d 543, 549 (2d Cir. 2009) (finding
petition untimely where it was filed four days following the
expiration of the statute of limitations).
To qualify for equitable tolling of the limitations period,
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.” Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005) (citing Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96 (1990)). The petition attaches a letter
from the Court of Appeals to petitioner’s appellate counsel, dated
August 28, 2013, enclosing the order denying leave which was dated
that same day. Petitioner attaches another letter, from counsel to
him, dated September 6, 2013, enclosing the Court of Appeals order.
Although petitioner does not explicitly argue that counsel’s delay
in

forwarding

the

Court

of

Appeals

order

constitutes

an

extraordinary circumstance warranting equitable tolling, the Court
interprets the attachment of these two letters as such.

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“[S]tatutory tolling for the purposes of AEDPA ends with the
‘filing’ of the state court’s final order, [not when a petitioner]
receive[s] notice of the state court’s order.” Saunders, 587 F.3d
at 549; see also Sumpter v. Sears, 2011 WL 31188, *5 (E.D.N.Y.
Jan. 5, 2011) (“[E]ven if his appellate counsel had failed to
notify [petitioner] that the New York Court of Appeals had denied
leave to hear his appeal, that error would not support equitable
tolling”) (citing McCowen v. Conway, 2008 WL 123940, *4 (E.D.N.Y.
Jan. 10, 2008) (“[T]he record petitioner has adduced fails even to
establish that attorney or official negligence was responsible for
the lapse in receipt of notice, much less that the delay was caused
by the type of serious misfeasance that has been held to establish
this element[.]”)). Moreover, delays in the ordinary course of the
mail do not constitute an “extraordinary circumstance” for purposes
of AEDPA tolling. Saunders, 587 F.3d at 550.
Finally,

plaintiff

waited

until

12

days

prior

to

the

expiration of the statute to file his motion for collateral relief,
indicating that he did not employ due diligence in pursuing his
claims. See, e.g., Saunders v. Senkowski, 2007 WL 1017310, *6
(N.D.N.Y. Mar. 30, 2007), aff’d, 587 F.3d 543 (2d Cir. 2009), aff’d
on other grounds, 587 F.3d 543 (“Petitioner . . . failed to offer
any excuse or reason for waiting until the ‘eleventh hour’ to seek
state court collateral review.”) (citing

Spencer v. Sutton, 239

F.3d 626, 630 (4th Cir. 2001)). Consequently, the Court finds that

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petitioner has established neither the due diligence nor the
extraordinary circumstances necessary to qualify for equitable
tolling. The petition is therefore dismissed as untimely.
IV.

Conclusion
For the foregoing reasons, the petition (Doc. 1) is dismissed

as untimely. A certificate of appealability shall not issue because
petitioner has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2); Lucidore v.
New York State Div. of Parole, 209 F.3d 107, 112–13 (2d Cir. 2000).
The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 26, 2017
Rochester, New York.

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