Monroe v. Rock
Filing
6
ORDER denying petition for writ of habeas corpus. Signed by Hon. Michael A. Telesca on 5/10/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TYRONE MONROE, 04-B-1474,
Petitioner,
-v-
09-CV-6366(MAT)
ORDER
DAVID ROCK,
Respondent.
I.
Introduction
Petitioner Tyrone Monroe (“petitioner”), who is represented by
counsel, has filed a petition for writ of habeas corpus pursuant to
28
U.S.C.
conviction
§
of
2254
challenging
Assault
in
the
§ 120.10(1)) and two counts of
the
First
constitutionality
Degree
(N.Y.
of
his
Penal
L.
Criminal Possession of a Weapon in
the Second Degree (former § 265.03(2)) in Monroe County Court
following a jury trial before Judge Patricia D. Marks. Petitioner
was sentenced as a second violent felony offender to aggregate
terms of imprisonment totaling thirty two years, determinate,
followed by an aggregate term of post-release supervision of ten
years.
II.
Factual Background and Procedural History
Petitioner’s conviction stems from two incidents that occurred
on July 22 and August 15, 2003, during which petitioner shot
Derrick Thompson in the groin while in the vicinity of Phelps and
Fulton Avenue in the City of Rochester.
Trial Tr. 218-220.
Following his conviction, petitioner filed a brief in support
of his appeal to the Appellate Division, Fourth Department, arguing
that: (1) the trial court erroneously admitted statements by the
victim as “excited utterances”; and (2) the trial court abused its
discretion by precluding evidence of the victim’s positive cocaine
test from the day of the shooting. Resp’t Appx. D. The Appellate
Division unanimously affirmed the judgment of conviction. People v.
Monroe, 39 A.D.3d 1279 (4th Dept. 2007), lv. denied, 9 N.Y.3d 867
(2007).
By motion dated August 31, 2007, petitioner moved in Monroe
County Court pursuant
to N.Y. Crim. Proc. L. (“C.P.L.”) § 440.10
to vacate the judgment on the ground that his attorney failed to
properly represent him during plea negotiations. Resp’t Appx. H.
The county court denied petitioner’s application, and leave to
appeal that decision was denied by the Appellate Division, Fourth
Department. Resp’t Appx. K, O.
Petitioner now seeks a writ of habeas corpus, alleging that
his
trial
(“Pet.”)
counsel
¶
12,
was
constitutionally
ineffective.
One.
filed
Ground
Respondent
an
Petition
answer
and
memorandum of law in opposition to the petition, asserting the
defense
of
alternative,
untimeliness
under
respondent
asserts
28
U.S.C.
that
2244(d).
petitioner’s
In
the
claim
of
ineffective assistance of counsel should be dismissed because it is
without merit. Resp’t Mem. at 7-13. Petitioner has not filed a
2
reply memorandum of law; his time to do so as provided in the
scheduling order expired and he has not sought an extension of
time. Accordingly, the matter is deemed submitted and ready for
decision.
For the reasons that follow, the petition is dismissed as
time-barred.
III. Discussion
A. The petition is untimely under 28 U.S.C. § 2244(d).
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, a one-year
statute of limitations applies to the filing of applications for a
writ of habeas corpus. 28 U.S.C. § 2244(d)(1). In general, the
one-year period runs from the date on which the petitioner's state
criminal judgment becomes final. Ross v. Artuz, 150 F.3d 97, 98
(2d Cir.1998) (citing 28 U.S.C. § 2244(d) (1)(A)); accord Smith v.
McGinnis, 208 F.3d 13, 16 (2d Cir.2000). A conviction is considered
“final” “once ‘the judgment of conviction [has been] rendered, the
availability of appeal exhausted, and the time for petition for
certiorari ... elapsed.’” McKinney v. Artuz, 326 F.3d 87, 96
(2d Cir.2003) (quoting Teague v. Lane, 489 U.S. 288, 295
(1989)
(citation and internal quotation marks omitted in original), citing
Clay
v.
United
“long-recognized,
States,
clear
537
U.S.
meaning”
522
of
(2003)
(noting
“finality”
in
the
the
post-conviction relief context as the time when the Supreme Court
3
“affirms a conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for filing a
certiorari petition expires”)).
Here, the Appellate Division affirmed petitioner's conviction
on
direct
appeal,
and
the
New
York
Court
of
Appeals
denied
permission to appeal on July 6, 2007. Petitioner thereafter had
ninety (90) days in which to file a petition seeking a writ of
certiorari in the United States Supreme Court. McKinney, 326 F.3d
at
96
(citing
Sup.Ct.
R.
13(1)
(“A
petition
for
a
writ
of
certiorari seeking review of a judgment of a lower state court that
is subject to discretionary review by the state court of last
resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review.”). Because
petitioner did not file a petition for certiorari seeking review of
the New York state-court decisions in the United States Supreme
Court, his conviction became final on October 4, 2007, ninety (90)
days after the date of the order denying his application for leave
to appeal to the New York Court of Appeals. Id.
Petitioner was required within one year from that date, or
until October 4, 2008, in which to timely file his federal habeas
petition. See 28 U.S.C. 2244(d)(1)(A). The instant petition was
filed with this Court on July 15, 2009, 284 days after the one-year
limitations period expired on October 4, 2008.
4
AEDPA contains a tolling provision, however, which 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);
accord
Smith
v.
McGinnis,
208
F.3d
at
16.
Petitioner's C.P.L. § 440.10 motion filed on August 31, 2007, is a
“properly filed application” for state-court collateral review
within the meaning of 2244(d)(2). However, it does not account for
the 284 days of tolling needed to the petition timely filed.
Petitioner’s C.P.L. § 440.10 motion was filed on August 31,
2007,
before
limitations
his
began
conviction
to
run.
became
The
final
Court
and
the
observes
statute
that
of
Section
2244(d)(2)'s tolling applies only if a state post-conviction motion
was “pending” during the one-year limitations period, which, in
petitioner's case, did not begin until October 4, 2007. Smith, 208
F.3d at
16 (citing Bennett v. Artuz, 199 F.3d 116, 119 (2d
Cir.1999), aff'd, 531 U.S. 4 (2000)).1 Thus, the time that the
§ 440 motion was pending between the date of filing, August 31,
2007, and October 3, 2007, is excluded from the statutory tolling
because it occurred prior to the commencement of the one-year
limitations
period
on
October
4,
1
2007.
See
id.;
28
U.S.C.
The respondent avers that the tolling period began on August 31, 2007,
the date petitioner filed his § 440.10 motion in state court. While the Court
disagrees with respondent’s computation of the tolling period, the Court
agrees with his conclusion that the petition is untimely.
5
§ 2244(d)(2). The applicable tolling period therefore did not begin
until October 4, 2007. Accord Hall v. Herbert, Nos. 02Civ.2299,
02Civ.2300, 2004 WL 287115, *5 (S.D.N.Y. Feb. 11, 2004)) (“By the
date that Hall's conviction became final, he had already filed his
First § 440.10 Motion. Accordingly, because the AEDPA limitations
period only begins to run when a conviction becomes “final,” the
time
prior
to
February
calculation
of
the
16,
one-year
1997
must
period
be
within
excluded
which
commence his habeas proceeding.); McKinley v. Woods,
from
Hall
had
the
to
No. 03 CIV
3629, 2007 WL 2816196 (E.D.N.Y. Aug. 7, 2007) (finding that the
only
post-conviction
motion
filed
by
petitioner
before
his
conviction that counted for statutory tolling purposes was the one
that remained “under submission” during the one-year limitations
period); Forman v. Artuz, 211 F.Supp.2d 415 (S.D.N.Y.2000) (stating
that the toll under Section 2244(d)(2) “would begin as soon as
[petitioner's] conviction became final”).
The Court now turns to how much time between October 4, 2007
and July 15, 2009 was tolled by the pendency of petitioner's C.P.L.
§ 440.10 motion. A “properly filed” application for state review is
“pending” for purposes of 28 U.S.C. § 2244(d)(2) until it has
achieved
final
review
through
the
state's
post-conviction
procedures. See Carey v. Saffold, 536 U.S. 214, 220 (2002) (“until
the application has achieved final resolution through the State's
post-conviction procedures, by definition it remains ‘pending.’”)
6
(quotation omitted); see also Hizbullahankhamon v. Walker, 255 F.3d
65, 70-72 (2d Cir.2001). In the case of a motion to vacate a
conviction under C.P.L. § 440. 10, “final resolution” is achieved
once the Appellate Division denies leave to appeal the denial of
the trial court's decision on the motion since under New York's
procedural rules, no appeal to the Court of Appeals lies from such
an order. Klein v. Harris, 667 F.2d at 283-84 (citing C.P.L.
§ 450.90(1); People v. Williams, 342 N.Y.S.2d at 76). Thus, once
the Appellate Division denies leave to appeal the trial court's
denial of a Section 440.10 motion, a petitioner has reached “the
end of the road within the state system” with respect to that
motion.
Id.
at
284
(quotation
omitted).
“As
a
result,
the
limitations period under AEDPA is not tolled during the pendency of
an application to the Court of Appeals for leave to appeal the
Appellate Division's decision on a Section 440.10 motion.” Foster
v. Phillips, No. 03 CIV 3629, 2005 WL 2978686, at *4 (S.D.N.Y.
Nov.7, 2005) (citing Rosario v. Bennett, No. 01 Civ. 7142, 2002 WL
31852827 (S.D.N.Y. Dec. 20, 2002) (further citations omitted in
original)).
In petitioner’s case, the statute of limitations was tolled
from October 4, 2007, until June 16, 2008, the date that the
Appellate Division denied leave to appeal the trial court's denial
of the C.P.L. § 440.10 motion. See Foster v. Phillips, 2005 WL
2978686, at *4 (S.D.N.Y. Nov.7, 2005) (citing King v. Greiner, No.
7
02 Civ. 5810, 2003 WL 57307 (S.D.N.Y. Jan. 7, 2003)). To the extent
that
petitioner
alleges
that
he
sought
leave
to
appeal
the
Appellate Division’s denial of leave, see Pet. ¶ 11(d)2, any
application to the New York Court of Appeals would not serve to
toll the limitations period, because that order was not appealable
under New York law, see C.P.L. § 450.90(1), and therefore is not a
“properly filed application for State post-conviction or other
collateral review” within the meaning of AEDPA's statutory tolling
provision set forth in 28 U.S.C. § 2244(d)(2). Accord Sykes v.
Hynes, 322 F.Supp.2d 273, 276 n. 1 (E.D.N.Y.2004) (citing Artuz v.
Bennett, 531 U.S. 4, 8
(2000) (“[A]n application is ‘properly
filed’ when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.”)). Therefore, the
tolling period expired on June 16, 2008,
when the Appellate
Division denied leave to appeal the trial court's denial of the
motion to vacate. Accord Olivero v. Fischer, 2004 WL 1202934, at *1
n.1 (W.D.N.Y.2004); Sykes v. Hynes, 322 F.Supp.2d at 276. In sum,
the statutory tolling period ran from October 4, 2007 to June 16,
2008, or 256 days. This, however, falls 28 days short of the 284
days of tolling required to make the habeas petition timely; as
2
The petition states that petitioner sought leave to appeal the state
court’s denial of his § 440.10 motion to the New York State Appellate
Division, Fourth Department. Shortly thereafter, petitioner states, “Leave
letter just filed; the Appellate Division denied leave.” Pet. ¶ 11(e).
8
noted above, the petition was filed on July 15, 2009, 284 days
after the limitations period expired.3
B. Petitioner is not entitled to equitable tolling of the
statute of limitations.
The one-year AEDPA filing limitation is not jurisdictional
and, under certain circumstances, may also be equitably tolled.
Acosta v. Artuz, 221 F.3d 117, 119, 122 (2d Cir.2000) (citing Smith
v. McGinnis, 208 F.3d at 17). Consequently, the period can be
equitably tolled if a petitioner is able to show that extraordinary
circumstances prevented him from filing his petition earlier and
that he acted with reasonable diligence throughout the period
sought to be tolled. Smith, 208 F.3d at 17. Petitioner has not
alleged extraordinary circumstances, nor does he explain why he
filed
his
limitations
petition
had
284
expired.
days
after
Indeed,
he
the
original
does
not
statute
even
of
address
respondent’s arguments regarding the timeliness of his petition.
There is therefore no basis for invoking the doctrine of equitable
tolling in petitioner’s case.
IV.
Conclusion
Because petitioner filed his federal habeas petition beyond
AEDPA's one-year deadline, and because he was not entitled to
3
Stated differently, the tolling period did not begin until October 4,
2007, or the day petitioner’s conviction became final. The pendency of his
post-conviction proceeding ended on June 16, 2008, which essentially commenced
the running of the one-year statute of limitations. Petitioner would have had
to have filed his petition no later than June 16, 2009, in order for it to be
timely.
9
sufficient statutory tolling during that period, or for equitable
tolling,
his
limitations.
federal
His
petition
petition
for
is
a
barred
writ
of
by
the
habeas
statute
corpus
of
must
therefore be denied. No certificate of appealability shall issue.
28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
May 10, 2011
Rochester, New York
10
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