Dizak v. McAuliffe
DECISION AND ORDER denying petitioner's 17 Motion for Reconsideration; FURTHER, Grounds One, Three, and Four of the petition are dismissed as time barred and the petition is denied in all respects; FURTHER, petitioner's 29 motion for an evidentiary hearing and to appoint counsel is denied; FURTHER, that a certificate of appealability is denied; FURTHER, that leave to appeal in forma pauperis is denied. The Clerk of Court is directed to close this case. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 5/10/2017. (Attachments: # 1 Transcript Page 518) (Chambers mailed a copy of this Decision and Order to petitioner). (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
Pro se petitioner Stuart Dizak has petitioned this Court, pursuant to 28 U.S.C.
§ 2254, challenging the constitutionality of his conviction entered in Monroe County
Court (State of New York) on October 23, 2009. Docket Item 1. There he was
convicted upon a jury verdict of two counts of conspiracy to commit murder in the
second degree (N.Y. Penal Law § 105.15) and two counts of criminal solicitation in the
second degree (id. § 100.10).1 Docket Item 1 at 1 (¶ 5).
After initial review, on June 24, 2016, this Court dismissed Ground Two of the
petition—the omission of “jury note #1” from the trial transcript—because Dizak was
plainly not entitled to relief under § 2254 on that ground. Docket Item 13 at 7-11; see 28
U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. This Court also observed that the petition’s remaining grounds
apparently were time barred pursuant to 28 U.S.C. § 2244(d)(1)(A).2 Id. at 13.
People v. Dizak, 2009-0393 (Monroe Cty. Ct. 2009).
Grounds One, Three, and Four of the petition allege: (One)—the trial court failed to
return the petitioner to the courtroom before discussing a jury note that requested the
Consistent with the directive of the Second Circuit, however, this Court did not dismiss
the petition but instead provided Dizak an opportunity to be heard and ordered him to
show cause why the remaining grounds of the petition should not be dismissed as time
barred. See Acosta v. Artuz, 221 F.3d 117, 124-26 (2d Cir. 2000); Docket Item 13 at
12-13. Dizak was invited specifically to address any issues relevant to timeliness,
including “equitable tolling” or any exception to the statute of limitations. Id. at 13 (citing
Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (equitable tolling) and McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931-36 (2013) (actual innocence)).
On August 1, 2016, Dizak filed a motion to reconsider the order of the Northern
District of New York transferring the petition to this Court. Docket Item 17. In addition,
he replied to this Court’s Decision and Order on August 29, 2016. Docket Item 23.
Both before and after that date, he also filed a number of letters and submissions
addressing the issues raised in this matter. See Docket Items 8, 10-11, 14, 16, 18, 20,
For the following reasons, Dizak’s motion to reconsider is denied, and Grounds
One, Three, and Four of the petition are dismissed as untimely pursuant to 28 U.S.C.
§ 2244(d)(1)(A). Because Ground Two of the petition was dismissed for the reasons
stated in this Court’s June 24, 2016 Decision and Order, the petition now is denied in all
definition of conspiracy; (Three)—the trial court erred in admitting an inaudible CD,
along with “replacement testimony”; (Four)—the prosecutor replaced the actual charge
of conspiracy with kidnapping. Docket Item 1 at 5-6, 8-10. The Court noted that
although on its face Ground Two may have been timely, the other claims appeared to
be time barred. Because the statute of limitations applies on a claim-by-claim basis,
see Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005); Tucker v. Nichols, 2011 WL
841360, at *3 (N.D.N.Y. Mar. 8, 2011), this Court addressed the timeliness of Grounds
One, Three, and Four separately. Docket Item 13 at 4.
respects; in addition, a certificate of appealability is denied and leave to appeal in forma
pauperis also is denied.
A. Motion to Reconsider
Dizak argues that the Northern District did not realize at the time of transfer that
there was “a potential conflict of interest” and “possible bias” in this Court. Docket Item
17 at 1 (“[O]ne or more jurists . . . were friends/associates with a principal involved in my
conviction . . . .”). He claims that this Court’s June 24, 2016 Decision and Order
confirms that conflict of interest by prematurely concluding that he had failed to make a
credible showing of actual innocence and by “fail[ing] to address or acknowledge two
additional submissions of newly discovered evidence.” Id.
Preliminarily, this Court notes that, pursuant to 28 U.S.C. § 1404(a), it has
jurisdiction to adjudicate the petitioner’s motion to reconsider the Northern District’s
order transferring the petition to the Western District of New York. See Lothian Cassidy,
LLC v. Lothian Exploration & Dev. II, L.P., 89 F.Supp.3d 599 (S.D.N.Y. 2015) (the
transferring court loses its jurisdiction over the case once transfer is ordered and the
files are physically transferred to the receiving court, unless that order is void).
As to the substance of the petitioner’s motion, his vague claims of conflict of
interest and bias3 are unsupported and provide no basis for this Court to reconsider the
This Court has no idea to whom Dizak refers when he states that “[o]ne or more jurists
. . . were friends/associates with a principal involved in my conviction.” Indeed, this
Court does not know who the “one or more jurists” are; who the “principal” is; or how
any of them were “friends/associates.” Dizak does refer to one attorney who cited a
“conflict of interest” when terminating his representation of the petitioner. Docket Item
Northern District’s transfer order. Clearly, Dizak disagrees with this Court’s Decision
and Order. But a “motion for reconsideration is not a device intended to give an
unhappy litigant one additional chance to sway the judge.” See Nossek v. Bd. of Educ.
of Duanesburg Cent. Sch. Dist., 1994 WL 688298, at *1 (N.D.N.Y. Nov. 10, 1994)
(quoting Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D.Va.1977)).
The petitioner has not provided any specifics that might give rise to the recusal of
any judge in this district, let alone the undersigned. See 28 U.S.C.§ 455(b). Nor does
this Court’s earlier Decision and Order, although unfavorable to the petitioner,
reasonably suggest that this Court is biased against him.4 Accordingly, there is no
reason to reconsider the Northern District’s order transferring the petition to this Court,
and the petitioner’s motion is denied.
B. AEDPA Statute of Limitations
1. Grounds One, Three, and Four Are Untimely.
This Court’s prior Decision and Order specifically addressed the one-year period
of limitations applicable to a state prisoner’s petition for a writ of habeas corpus set forth
in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2244(d)(1), and it explained why the petition at bar appeared to be untimely. See
Docket Item 13 at 2-7. Under § 2244(d)(1)(A), the period of limitations runs from “the
23 at 17-18. But that has little to do with the petitioner’s point now: that a jurist who is
involved in the case should not be.
28 U.S.C. § 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” Dizak provides no reason to question this Court’s
impartiality other than that he is unhappy with this Court’s ruling. He observes that this
Court found that he had not made any showing of actual innocence before he ever
attempted to make such a showing. But that was the point of the prior decision, which
explicitly provided him with notice and an opportunity to make that showing.
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Dizak’s conviction therefore became
“final” on February 17, 2013—90 days after he finally was denied leave to appeal to the
New York Court of Appeals. See Epps v. Poole, 687 F.3d 46, 49 (2d Cir. 2012) (stating
petitioner’s conviction became “final” three months after the appellate court denied him
leave to appeal). Once the New York Court of Appeals denied his motion for
reconsideration of the order denying him leave to appeal, Dizak had 90 days to seek a
writ of certiorari in the Supreme Court. S. Ct. R. 13(1); Dove v. Lee, 2015 WL 893071,
at *3, n.7 (N.D.N.Y. Mar. 2, 2015). Because he did not move for certiorari and there
were no statutory tolls, the period of limitations expired one year later, on February 17,
Dizak did not file the instant petition until April 15, 2016—nearly two years and
two months after the statute of limitations expired. Because he did not file his two state
post-conviction motions for collateral relief until May and June 2015, which were after
the period of limitations had already expired, those motions did not toll the period of
limitations. See Smith, 208 F.3d at 17 (“[28 U.S.C. §] 2244(d)(2)’s tolling provision
excludes time during which properly filed state relief applications are pending.”). So
unless Dizak can show actual innocence or the applicability of some tolling provision
that is not apparent on its face, his petition is time barred.
2. Petitioner’s Reply and Other Submissions Do Not Entitle Him to Relief.
a. Actual Innocence
Dizak’s reply and other submissions with respect to Grounds One, Three, and
Four focus primarily on the ground of actual innocence.
A petitioner who makes a showing of actual innocence has an equitable
exception to AEDPA’s one-year statute of limitations. McQuiggin, 133 S.Ct. at 1928,
1931; Rivas v. Fischer, 687 F.3d 514, 551-52 (2d Cir. 2012). “‘Actual innocence’ means
factual innocence, not mere legal insufficiency.” Dunham v. Travis, 313 F.3d 724, 730
(2d Cir. 2002) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). The
Supreme Court has cautioned that “tenable actual-innocence gateway pleas are rare[.]”
McQuiggin, 133 S. Ct. at 1928. “The gateway should open only when a petition
presents ‘evidence of innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error.’” Id. at 1936 (quoting Schlup v. Delo, 513 U.S. 298,
“[A] claim of actual innocence must be both “credible” and “compelling.” Rivas,
687 F.3d at 541 (citing House v. Bell, 547 U.S. 518, 521, 538 (2006)). For a claim to be
“credible,” it must be supported by “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.” Rivas, 687 F.3d at 541 (quoting Schlup, 513 U.S. at 324).
“‘[N]ew and reliable’ [evidence] includes: signed, notarized, and sworn statements of
alibi witnesses . . . ; written recantation of the prosecution’s only witness . . . ;
The Supreme Court has “not resolved whether a prisoner may be entitled to habeas
relief based on a freestanding claim of actual innocence,” McQuiggin, 133 S.Ct. at 1931
(citation omitted), as opposed to recognizing actual innocence as a gateway to pursuing
constitutional claims on their merits notwithstanding their untimeliness. See DiMattina
v. United States, 949 F.3d 387, 414-18 (E.D.N.Y. 2013); see also Rivas, 687 F.3d at
553 (in case where petitioner did not advance freestanding actual-innocence claim,
finding “credible and compelling claim of actual innocence” to excuse one-year statute
of limitations bar).
unchallenged testimony of expert forensic pathologist . . . ; and DNA testing . . . .”
Barrientos v. Lee, 2015 WL 3767238, at *12 (S.D.N.Y. June 17, 2015) (adopting Report
and Recommendation) (internal citations omitted). “For the claim to be ‘compelling, the
petitioner must demonstrate that ‘more likely than not, in light of the new evidence, no
reasonable juror would find him guilty beyond a reasonable doubt—. . . that more likely
than not any reasonable juror would have reasonable doubt.” Rivas, 687 F.3d at 541
(quoting House, 547 U.S. at 538).
Dizak’s reply and other submissions do not even attempt to show that he actually
is innocent. Indeed, instead of arguing that he is actually innocent premised on new
evidence, Dizak critiques the prosecutor’s key witnesses and their testimony (Docket
Item 23 at 7-10, 11-13, 19-20); criticizes improper prosecutorial vouching for the
witnesses’ credibility (id. at 6-8); raises alleged evidentiary errors, including alteration
and redaction (id. at 6, 8-9); and complains about the alleged conversion of the
conspiracy charge on which he was indicted to a kidnapping charge (id. at 7-8, 10).
With respect to each of these arguments, Dizak also claims that his trial counsel was
ineffective for consistently failing to object. Id. at 6-10. At best, Dizak challenges the
sufficiency of the evidence and the fairness of his trial; he does not provide any reason
to believe that he is actually innocent of the crimes on which the jury convicted him.
See Dunham, 313 F.3d at 730; McKenzie v. United States, 2015 WL 6680108, at *16
(E.D.N.Y. Nov. 2, 2015) (“Where the new evidence only speaks to a witness’s
credibility, and not to the petitioner’s innocence, the evidence is insufficient to excuse a
procedural default.”) (appeal pending) (citing Donato v. United States, 2012 WL
4328368, at *3 (E.D.N.Y. Sept. 20, 2012) (other citation omitted)).
For that reason, Dizak’s claim is not based on the “touchstone” used to
determine whether an otherwise time-barred or defaulted claim should be adjudicated
on the merits—namely, factual and actual innocence. DiMattina v. United States, 949
F. Supp. 2d 387, 418 (E.D.N.Y. June 13, 2013) (“That is why factual innocence is the
touchstone in deciding whether a petitioner’s otherwise-defaulted claim of constitutional
error should be heard.”) (citing McQuiggin, 133 S.Ct. at 1928). Because Dizak has not
raised a “tenable actual-innocence gateway plea,” McQuiggin, 133 S.Ct. at 1928, that
would serve as an exception to the AEDPA statute of limitations, Grounds One, Three,
and Four of his petition are dismissed as untimely.6
b. Factual Objection to Ground One
Dizak also has raised a factual objection to the Decision and Order: He claims
that he became aware of jury note #2 (the basis for Ground One)—not jury note #1 (the
basis for Ground Two), as this Court discussed in the Decision and Order—in March
2015. Docket Item 23 at 15-16.
Dizak asserts that he was not in court during the discussion of jury note #2,
which he claims addressed a substantive issue. See id. If that is so, and if, through
Dizak’s most recent submissions also re-address the timeliness and merits of Ground
Two. Docket Item 23 at 16-17. This Court’s June 24, 2016 Decision and Order,
however, provided him with the opportunity to address the timeliness of only Grounds
One, Three, and Four; it did not invite Petitioner to re-argue Ground Two. To the extent
the petitioner’s Reply and other submissions argue either the timeliness or merits of
Ground Two, therefore, the Court construes such argument as a request to reconsider
the Court’s denial of Ground Two. See Docket Item 13 at 7-8 (citing 28 U.S.C. § 2243;
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts).
That request is denied because there are no legitimate grounds for reconsideration.
See Virgin Atl. Airways, Ltd., 956 F.2d at 1255; see also Amerisure Ins. Co. v. Laserage
Tech. Corp., No. 96-CV-6313, 1998 WL 310750, at *1 (W.D.N.Y. Feb. 12, 1998) (citing
United States v. Adegbite, 877 F.2d 174, 178 (2d Cir. 1989)).
reasonable diligence, Dizak could not have discovered until March 2015 the fact that the
discussion of a substantive trial issue occurred outside his presence, then Ground One
might have been timely under 28 U.S.C. § 2244(d)(1)(D) (“The limitation period shall run
from the latest of . . . the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.”).7 But
Dizak was—or should have been—aware of any issue with respect to jury note #2 long
before March 2015.
On March 16, 2012, the New York State Supreme Court, Appellate Division,
Fourth Department, affirmed Dizak’s judgment of conviction. Docket Item 1 at 2
(¶¶ 9(a)-(f)).8 Dizak was represented by counsel on that appeal. The trial transcript—
necessarily part of the record on that appeal, Rules of the App. Div. 4th Dep’t,
1000.4(a)(2)—records the entire colloquy between the court and the attorneys on how
to respond to jury note #2 and subsequent related notes. Docket Item 5 at 10-13.
Because Dizak had access to the transcript, he was—or certainly should have been—
aware of anything that occurred outside his presence at trial, including specifically any
discussion of jury note #2 that occurred outside his presence. Indeed, his brief to the
Appellate Division, filed October 3, 2011, is replete with citations to the trial transcript,
including to the very page where the trial court begins addressing jury note #2. See
Def.-App.’s Br. at 7; Docket Item 5 at 10-13. So Dizak knew about that discussion of
If Dizak did not learn about the basis for Ground Two of his petition until March 2015,
then his post-conviction state court motions for collateral relief filed in May and June
2015 may have tolled the statute of limitations on Ground Two, making that claim timely.
See Smith, 208 F.3d at 17 (discussing tolling under 28 U.S.C. § 2244(d)(2)).
People v. Dizak, 93 A.D.3d 1182, 1183, 940 N.Y.S.2d 408 (4th Dep’t), lv. denied 19
N.Y.3d 972, reconsideration denied 20 N.Y.3d 932 (2012).
the jury notes no later than October 2011 when his brief was filed. And Dizak does not
allege anywhere in his petition or his response to this Court’s order to show cause that
he somehow lacked access to the record, the trial transcript, or the exhibits9 upon which
he based his appeal.
In fact, the transcript that Dizak has submitted to this Court actually includes an
explicit indication that he was present at the discussion of the jury note. Prior to the
discussion of the jury notes the court received from the jury—including the note
concerning the definition of conspiracy—the court reporter noted: “WHEREUPON ALL
PARTIES ENTERED THE COURTROOM.” See Docket Item 5 at 10, 17 (parentheses
omitted). While Dizak has crossed out “ENTERED” and written “exited” in the copies of
the transcript he filed with this Court, see id., there is no reason to believe that the court
reporter erred or that Dizak’s handwritten change more accurately reports what
occurred. Dizak apparently thinks that the above language addresses the court’s brief
adjournment and refers to the exit that occurred after that adjournment. But he offers
no reason to support that assumption, which the transcript belies. In fact, the transcript
very clearly refers to the parties reentering the courtroom before the discussion of the
jury notes. And the court reporter’s timeline explicitly says exactly the same thing:
“attorneys and defendant present” for the discussion of jury note #2. See Docket Item
1-1 at 14, 20 (emphasis added).10
One trial exhibit, Court Exhibit 5, memorialized the trial court’s receipt of jury note #2.
See Docket Item 1-1 at 17, 23.
Dizak argued that this timeline entry also was erroneous, and he cited page 518 of
the trial transcript as supposedly showing that he returned to the courtroom only after
this colloquy took place. Docket Item 1-1 at 14, 20. Although Dizak failed to provide a
copy of page 518 in support of his contentions, this Court obtained a copy. That page,
But even if Dizak had not actually been present for that discussion, he still would
have known—or should have known—no later than October 2011 that the court and the
attorneys discussed jury note #2. If he had not been present when the note was
discussed, then he would have known that, too. And so if he had an argument on that
issue, it is time barred.
Ultimately, Dizak has not shown this Court that he was unaware of the factual
predicate for Ground One when his statute of limitations began to run on February 17,
2013. That period of limitations therefore expired on February 17, 2014, and Dizak’s
claim on Ground One is time barred.
The petitioner’s motion to reconsider (Docket Item 17) is denied. Because this
Court previously dismissed Ground Two on the merits (Docket Item 13 at 7-11), and
because Grounds One, Three, and Four of the petition now are dismissed as time
barred pursuant to 28 U.S.C. § 2244(d)(1)(A), the petition is denied in all respects. See
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
The petitioner’s related motion for an evidentiary hearing and appointment of counsel
(Docket Item 29) also is denied.
Moreover, because the issues raised here are not the type of issues that a court
could resolve in a different manner, and because these issues are not debatable among
which says nothing whatsoever about the defendant’s presence, entry, or exit, further
corroborates the court reporter’s timeline. See page Tr. at 518, attached infra. Indeed,
its silence as to whether the defendant entered the courtroom speaks volumes: Dizak
undoubtedly was present for the verdict (which the court also began to address on page
518); because the transcript does not show him returning to the courtroom immediately
before the verdict was read, he must have been there already—and therefore present
when the note was addressed.
jurists of reason, this Court concludes that the petitioner has failed to make a substantial
showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), and therefore
denies a certificate of appealability. Further, this Court certifies that any appeal from
this order would not be taken in good faith and therefore denies the petitioner leave to
appeal in forma pauperis. Id. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438
The petitioner must file any notice of appeal with the Clerk’s Office, United States
District Court, Western District of New York, within 30 days of the date of this order.
Requests to proceed in forma pauperis on appeal must be filed with the United States
Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24
of the Federal Rules of Appellate Procedure.
IT IS HEREBY ORDERED that the petitioner’s Motion to Reconsider the
Northern District of New York’s Transfer Order (Docket Item 17) is denied; and it is
ORDERED that Grounds One, Three, and Four of the petition are dismissed as
time barred pursuant to 28 U.S.C. § 2244(d)(1)(A), and the petition is denied in all
respects; and it is further
ORDERED that the petitioner’s motion for an evidentiary hearing and to appoint
counsel is DENIED; and it is further
ORDERED that a certificate of appealability is denied pursuant to 28 U.S.C.
§ 2253(c)(2); and it is further
ORDERED that leave to appeal in forma pauperis is denied pursuant to 28
U.S.C. § 1915(a)(3).
The Clerk of Court is directed to close this case.
May 10, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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