Nolley v. Superintendent of Bare Hill

Filing 12

DECISION AND ORDER dismissing the petition for a writ of habeas corpus as time-barred and petitioner's request to amend his petition, asserted in Dkt. 10, is dismissed as moot in light of the Court's dismissal of the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/12/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
QUINCY D. NOLLEY,
No. 11-CV-6384(MAT)
DECISION AND ORDER

Petitioner,
-vsSUPERINTENDENT OF BARE HILL,
Respondent.

I.

Introduction
Pro se petitioner Quincy D. Nolley (“Nolley” or “Petitioner)

has

filed

a

petition

for

writ

of

habeas

corpus

pursuant

to

28 U.S.C. § 2254 challenging the constitutionality of his detention
in Respondent’s custody. Nolley is incarcerated pursuant to a
judgment of conviction entered against him on November 22, 1993, in
Erie County Court of New York State, following a guilty plea to one
count of attempted second degree murder and one count of first
degree robbery, in satisfaction of a fifteen-count indictment.
II.

Factual Background and Procedural History
A.

The Guilty Plea and Sentencing

Nolley was indicted, along with two co-defendants, with two
counts of second degree murder, attempted second degree murder, two
counts of

first

degree

assault,

four

counts

of

first

degree

robbery, three counts of second degree robbery, and two counts of
fourth degree criminal possession of a weapon. The charges stemmed

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from the robbery and murder of Michael Miskell and the beating of
Lori Seifert on April 17, 1992.
On January 14, 1993, Nolley pleaded guilty to attempted second
degree murder and first degree robbery, admitting that during the
course of a planned robbery, he struck Seifert several times with
a car jack, and gave a knife to one of his accomplices, who killed
Miskell. Nolley agreed to testify against his accomplices at any
future trial and to waive his right to appeal.
On November 22, 1993, the trial court (Kubiniec, J.) sentenced
Nolley. Believing him to be a predicate (second) felony offender.
Judge Kubiniec imposed two consecutive terms of seven and one-half
to fifteen years. The judge stated, “Each sentence to be served
consecutively. Consecutive sentences.” S.15.
Prior to the conclusion of the hearing, the parties alerted
the judge to the fact that Nolley was not a predicate felon but
instead was a first felony offender. The judge then stated: “This
setnence just imposed is set aside and revoked, and the Court resentences as follows[,]” going on to sentence Nolley to longer
sentences on the two convictions, namely, seven and one-half to
twenty-two and one-half. S.16-17.1 Judge Kubiniec did not state
whether the revised sentences were to be served concurrently or
consecutively. S.17.

1

Numerals preceded by “S.__” refer to pages from the transcript of
Petitioner’s sentencing.

-2-

Also on November 22, 1993, the Erie County Clerk issued the
sentence and commitment papers, which stated that the sentences for
the two convictions were consecutive.
B.

The Direct Appeal

According to Petitioner, his trial counsel, Robert Druar, Esq.
(“Attorney Druar”) stipulated to discontinuing the direct appeal on
August 26, 1994, stating that there were no appealable issues.
(Dkt. #10).
C.

The 1997 Motion to Set Aside the Sentence

On January 8, 1997, Petitioner brought a pro se motion to set
aside the sentence pursuant to New York Criminal Procedure Law
(“C.P.L.”) § 440.20, contending that since the trial court, in
correcting its original sentence, did not specifically reiterate
that the terms were to be served consecutively, the sentences
necessarily

must

run

concurrently.

See

Respondent’s

Exhibit

(“Resp’t Ex.”) B, submitted in connection with Respondent’s Answer.
By the time Petitioner filed his motion, Judge Kubiniec had
passed away. Judge John V. Rogowski, after reviewing the transcript
of the sentencing hearing, held that Judge Kubiniec’s “intent was
abundantly clear.” C.P.L. § 440.20 Order at 3, Resp’t Ex. B. Judge
Rogowski explained that Judge Kubiniec, “[h]aving already indicated
that defendant should serve consecutive prison terms, . . . merely
amended the length of each sentence to reflect defendant’s firsttime felon sentence.” Id.

Judge Rogowski also rejected the claim

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that consecutive sentences were illegal, finding that the crimes to
which Nolley pled guilty were “distinguishable by ‘culpable mental
state, nature and manner of use, time and place of victim’” and
therefore discretionary imposition of consecutive sentences was
appropriate “when all of the facts and circumstances of this case
[we]re assessed.” C.P.L. § 440.20 Order at 4 (quotation omitted),
Resp’t Ex. B. The Fourth Department denied leave to appeal on
September 29, 1997.
C.

Petitioner’s Correspondence With
Regarding Collateral Remedies

Appellate

Counsel

On May 31, 2002, Attorney Druar sent a letter to Petitioner,
apparently in response to an inquiry from Petitioner, stating that
“[r]eading the [sentencing] transcript raises at least the argument
that your sentences are to run concurrently because consecutive
sentencing was not specified.” Letter from Attorney Druar to
Petitioner dated 5/31/02, attached to Dkt. #10. Attorney Druar
explained that Nolley could file a state habeas corpus petition
“based upon the claim that your detention beyond seven years . . .
is illegal.” Id. Druar requested that Nolley send him a copy of
“whatever it was [he] did file” and the resulting order. Id.
In the next correspondence from Attorney Druar that Nolley has
provided the Court, Druar states that he did not think Nolley’s
remedy lay with an appeal of the “decision of Judge Skretny of the
U.S. District Court.” This Court has searched the District’s

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electronic filing system database and could not find any such
proceeding before Judge Skretny. Indeed, the only case filed by
Nolley appears to be the instant proceeding.
Attorney Druar reiterated that Nolley’s best remedy was a
habeas corpus such as the one that Nolley had prepared or had
prepared for him on November 27, 2001, and apparently submitted to
Attorney

Druar

to

review.

Attorney

Druar

explained

that

the

petition raised the correct issue and raised it in the correct
court. He proposed that the petition, if it had not been filed, be
sent to the assigned counsel program for appointment of state
habeas counsel on Nolley’s behalf.
However, it appears that such a petition was never filed by
Nolley or by anyone on his behalf, and Nolley apparently declined
to take Attorney Druar’s advice. On August 27, 2002, Attorney Druar
wrote to Nolley, informing him that his habeas corpus petition
should have been filed with the New York State Supreme Court. He
also stated that Nolley’s case could be initiated as a proceeding
under Article 78 of the New York Civil Practice Law and Rules
(“C.P.L.R.”) if Nolley wrote to the parole board and demanded an
interview because he had served more than the minimum term imposed.
In the alternative, the sentencing transcript could be sent to the
department of corrections requesting that the sentence be recomputed. Attorney Druar closed by saying, “I don’t mean to confuse
but one of these steps must be taken.”

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The next correspondence from Attorney Druar was dated July 14,
2004, in response to a letter from Nolley enclosing some type of
legal papers. Attorney Druar asked if it had been submitted to New
York State Supreme Court or Federal court. He instructed Nolley to
have the papers signed before a notary and returned to him for
filing, if they had not already been filed in state court. It is
not clear whether Nolley ever followed the directions issued by
Attorney Druar.
The final correspondence from Attorney Druar, attached by
Nolley to Dkt. #10, is a letter dated July 29, 2004, to the
New York State Division of Parole, asking that the circumstances of
Nolley’s commitment be reviewed in light of the sentencing judge’s
silence as to whether the sentences were concurrent or consecutive.
Attorney Druar noted that under the version of P.L. § 70.25(1) then
in effect, the terms accordingly were to be served concurrently,
which meant that Nolley had been eligible for parole since 2001.
Evidently, no action favorable to Nolley was taken by the
parole board in response to Attorney Druar’s letter. There is no
indication

that

Nolley

ever

filed

the

various

applications

recommended by Attorney Druar.
D.

The 2010 Motion to Amend

On March 5, 2010, Nolley filed a pro se “Motion to Correct
Mistakes, Omis[s]ions, Defects, and Irregularities” in New York

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State Supreme Court (Erie County), pursuant to C.P.L.R. § 2001.2
The motion court (Wolfgang, J.) denied the application on June 22,
2010. See Resp’t Ex. C. Justice Wolfgang found that the claim was
“contradicted by the record” which indicated that the sentencing
court “implicitly intended, as it had stated prior to the amendment
[of

the

sentence]

consecutively.”

that

C.P.L.R.

the
§

sentences

2001

Order

were
at

2,

to

be

Resp’t

served
Ex.

C.

Petitioner did not seek leave to appeal this decision.
E.

The 2011 Federal Habeas Petition

Nolley’s habeas petition was received by the Court on August
3, 2011, and raises two grounds for relief: (1) the trial court did
not actually state, on the record, that his sentence was to be
served consecutively, and therefore, by operation of law, the
sentences

must

run

concurrently;

and

(2)

the

imposition

of

consecutive sentence was contrary to law under the facts of his
case.
From the face of the petition, it appears that Nolley is well
past the one year statute of limitations set forth in 28 U.S.C. §
2244(d)(1): He was sentenced in 1993, and he filed his petition in
2011. By Order dated August 12, 2011 (“the Timeliness Order”), the
Court (Larimer, D.J.) directed Respondent to address the timeliness
2

C.P.L.R. § 2001 extends the court’s power
any stage of an action, including the filing
commence an action” and specifically including
process”. Miller v. Waters, 51 A.D.3d 113, 117
N.Y. Civ. Prac. Law & R. § 2001).

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to forgive errors “[a]t
of a . . . petition to
mistakes “in the filing
(3d Dept. 2008) (quoting

of the petition in light of Earley v. Murray, 451 F.3d 71 (2d Cir.
2006), reh’g denied, 462 F.3d 147, cert. denied, 127 S. Ct. 3014,
(2007); People v. Sparber, 10 N.Y.3d 457, 470 (2008); and Matter of
Garner v. New York State Dept. of Corr. Servs., 10 N.Y.3d 358
(2008). However, the Timeliness Order did not specifically explain
the manner in which Earley was relevant to Nolley’s petition.
In Earley, the Second Circuit held that when New York State
Department

of

(“NYSDOCCS”)

Correctional

Services

administratively

and

added

Community

a

five-year

Supervision
term

of

post-release supervision to Petitioner’s six-year sentence, it was
contrary

to

clearly

established

due

process

principles

as

determined by the Supreme Court in United States ex rel. Hill v.
Wampler, 298 U.S. 460, 461-62 (1936) (holding that the sentence
imposed by the judge controls and that a sentence may not be
enhanced by an amendment of an administrator). Two years after
Earley, the New York State Court of Appeals confirmed that the
administrative imposition of a term of post-release supervision to
a sentence is improper. Sparber, 10 N.Y.3d at 469-71; accord
Garner, 10 N.Y.3d at 362-63.
Nolley’s first ground for relief relies on this due process
principle–i.e., a sentence must be orally pronounced in open court,
and that if a later written judgment adds terms or increases the
sentence, the oral sentence controls. See Earley v. Murray, 451
F.3d 71, supra; see also Earley v. Murray, 462 F.3d 147, 149

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(2d Cir. 2006) (confirming upon rehearing that a judicially imposed
sentence includes only those elements explicitly ordered by the
sentencing

judge

and

recognizing

that,

although

the

original

sentence could arguably be “unlawful” because a trial court failed
to pronounce a PRS term, nonetheless the only sentence to which the
defendant

actually

would

be

subject

would

be

the

term

of

imprisonment as articulated by the trial court).
Presumably, the issue alluded to in the Timeliness Order is
whether Petitioner can take advantage of a later start-date, such
as that provided in 28 U.S.C. § 2244(d)(1)(D), inasmuch as he
argues

that

he

did

not

know

that

he

had

been

consecutively

sentenced at the time Judge Kubiniec sentenced him. Alternatively,
the Timeliness Order could refer to 28 U.S.C. § 2244(d)(1)(C),
which applies when the petitioner is relying on a newly recognized,
retroactive constitutional right.
In responding to the Timeliness Order, Respondent asserts that
Nolley did not act with due diligence in discovering the factual
predicate

of the

claim, and

therefore the

petition

is still

untimely. Respondent also contends that both claims substantively
lack merit.
Petitioner submitted two replies in response to Respondent’s
opposition memorandum of law. See Dkt. ##9, 10. In the second reply
(Dkt. #10), Petitioner also requested permission to amend his
petition to include a claim of ineffective assistance of appellate

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counsel for failing to file an Anders brief and failing to appeal
the claim that his sentences were to run concurrently rather than
consecutively. However, Petitioner did not address the timeliness
issue. Respondent has not submitted any papers in opposition to
Petitioner’s request for permission to amend.
For the reasons that follow, the Court concludes that the
petition is untimely, and that Nolley is not entitled to equitable
tolling. Amendment of the petition is denied as moot.
II.

Timeliness
A.

Date of Filing of the Petition

Respondent asserts that the petition was filed on August 3,
2011, the date the Court received Nolley’s petition. However,
because Nolley is a pro se incarcerated litigant, the prison
mailbox rule applies. Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.
2001) (applying rule to state habeas petitions) (citing Houston v.
Lack, 486 U.S. 266, 270 (1988) (applying mailbox rule to notices of
appeal under FED. R. APP. P. 3(a) and 4(a)(1)). Respondent has
incorrectly overlooked the prison mailbox rule.
Ordinarily, in the absence of evidence to the contrary, the
Court presumes that the date the petition was signed is the date it
was given to the appropriate prison authorities for mailing. Torres
v. Irvin, 33 F. Supp.2d 257, 270 (S.D.N.Y.1998) (citing cases); see
also Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000)
(“Liberal application of the mailbox rule . . . causes us to treat

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the petition as placed in the hands of prison authorities on the
same day it was signed.”). Here, Nolley’s petition is undated, and
it is not clear when he gave the petition to prison officials. In
such cases, the date of the postmark is the date the petition is
presumed

filed.

E.g.,

Alexander

v.

Superintendent,

No. 9:07-CV-00680, 2009 WL 762108, at *2 (N.D.N.Y. Mar. 19, 2009).
However, the Clerk’s Office apparently did not retain the envelope
containing

Nolley’s

petition,

and

the

Court

therefore

cannot

ascertain the date of the postmark.
Nevertheless, a matter of days or even a month (assuming an
unduly lengthy delay on the part of prison officials) will not make
a

difference

with

regard

to

whether the

petition

is

timely.

Assuming that it took a month for Nolley’s petition to arrive at
the Court–i.e., that he mailed it on December 1, 2010, it still is
untimely, as discussed further below.
B.

Timeliness

AEDPA amended to the federal habeas statute3 to impose a oneyear

limitations

period

on

habeas

petitions.

See

28

U.S.C.

§ 2244(d)(1)(A)-(D); Bennett v. Artuz, 199 F.3d 116, 118 (2d Cir.
1999), aff’d, 531 U.S. 4 (2000). The one-year limitation period
applies

to

a

habeas

claim,

such

as

that

alleged

by

Nolley,

regarding alleged unauthorized acts by NYSDOCCS. See James v.

3

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214 (1996).
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Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (holding that a state
prisoner’s claim that NYSDOCCS incorrectly credited his time served
was properly brought under 28 U.S.C. § 2254 and, therefore, was
subject to the requirements of AEDPA).
Pursuant to AEDPA, the limitation period runs from the
latest of the following 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).
Regardless

of

which

of

the

foregoing

subsections

of

§

2244(d)(1) is utilized, the Court finds that Nolley’s petition is
untimely.
1.

28 U.S.C. § 2244(d)(1)(A)

The petition cannot be timely under 28 U.S.C. § 2244(d)(1)(A),
which calculates timeliness based upon the date the judgment of
conviction became final. Petitioner filed a timely Notice of Appeal
in the Appellate Division, Fourth Department, of New York State
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Supreme Court, but on August 15, 1994, appellate counsel executed
a stipulation of discontinuance of the appeal. By Order entered
August 26, 1994, the Appellate Division dismissed the appeal.
This Court need not decide whether Petitioner’s conviction
became final on September 26, 1994, the deadline for him to appeal
the dismissal of his direct appeal to the Court of Appeals, N.Y.
CRIM. PROC. LAW § 460.10(5)(a); or on September 26, 1996, the
deadline for him to seek an extension of time from the Court of
Appeals to file a Notice of Appeal, N.Y. CRIM. PROC. LAW § 460.30,
because both dates are prior to the enactment of AEDPA on April 24,
1996. Alamo v. Ricks, No. 01-CV-1381(NG), 2002 WL 1732815, at *1 n.
1 (E.D.N.Y. July 24, 2002) (some citations omitted). Because
Nolley’s conviction became final prior to AEDPA’s enactment, he had
a one-year grace period–until April 24, 1997–in which to file his
petition. Ross v. Artuz, 150 F.3d 97, 102-02 (2d Cir. 1998).
As noted above, the Court is assuming that Petitioner filed
his petition on December 1, 2011, or 13 years, 7 months, and 7 days
from April 24, 1997. The petition is clearly untimely unless Nolley
can avail himself of the statutory tolling provided for in 28
U.S.C. § 2244(d)(2). See Day v. McDonough, 547 U.S. 198, 206 (2006)
(“The one-year clock is stopped, however, during the time the
petitioner's ‘properly filed’ application for state postconviction
relief ‘is pending.’”)(quoting 28 U.S.C. § 2244(d)(2). Although
Nolley filed several post-conviction motions for collateral relief

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in state court, they do not serve to toll the limitations period
for a sufficient amount of time to render the petition timely.
Prior to the one-year grace-period’s expiration, Nolley filed
a motion on January 8, 1997, to set aside his sentence. In an order
dated April 25, 1997, the trial court denied Petitioner’s motion.
Petitioner moved for a certificate to appeal from the denial of his
motion, which

was

denied

on

September 29,

1997.

This

motion

provides statutory tolling from April 24, 1997, until September 29,
1997, for a total of 158 days. See Figueroa v. Rocks, 378 F.
Supp.2d 210, 219 (W.D.N.Y. 2005) (“Figueroa was entitled to seek
leave to appeal the denial of his C.P.L. § 440.10 motion to the
Appellate Division of New York State Supreme Court. See N.Y. CRIM.
PROC. LAW § 450.15(1) (Defendant is entitled to seek certificate for
leave to appeal “[a]n order denying a motion, made pursuant to
section 440.10, to vacate a judgment[.]”). Thus, Figueroa is
correct that the C.P.L. § 440.10 motion continued to be ‘pending’
until

February

23,

2001

[when

the

Appellate

Division

denied

leave].”)(citing Bennett v. Artuz, 199 F.3d 116, 119–20 (2d Cir.
1999) (a state court post-conviction proceeding is “pending” within
the meaning of § 2244(d)(2) until it is finally disposed of and
further appellate review is unavailable), aff’d, 531 U.S. 4 (2000).
Nolley’s next state-court collateral motion was filed on March
5, 2010, when he moved the trial court, pursuant to C.P.L.R. §
2001, to correct alleged mistakes and omissions on the Sentence and

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Commitment form. In the time between the conclusion of his motion
to vacate and the filing of his C.P.L.R. § 2001 motion, 12 years,
5 months, and 5 days elapsed. Even taking into account the 158 days
of tolling provided by the C.P.L. § 440.20 motion, the one-year
limitations period expired long before Nolley filed the C.P.L.R.
§ 2001 motion. A properly filed state-court motion filed after the
end of the limitations period does not “restart” or clock. Rashid
v. Khulmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998) (“The tolling
provision does not, however, ‘revive’ the limitations period (i.e.,
restart the clock at zero); it can only serve to pause a clock that
has not yet fully run. Once the limitations period is expired,
collateral petitions can no longer serve to avoid a statute of
limitations.

Because

petitioner’s

one

year

period

expired

in

December 1987, his collateral petition filed in 1997 does not serve
to revive the limitations period. . . .”).
2.

28 U.S.C. § 2244(d)(1)(B)

Petitioner does not claim under 28 U.S.C. § 2244(d)(1)(B) that
he was prevented in any way by state officials from timely filing
the instant application. Therefore, § 2244(d)(1)(B) does not apply.
3.
Petitioner

28 U.S.C. § 2244(d)(1)(C)
does

not

rely

on

any

constitutional

right

newly-recognized, and made applicable on habeas review, by the
United States Supreme Court. Instead, Petitioner relies on Earley
v. Murray,451 F.3d 71, supra, a Second Circuit case explaining that

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a particular due process principle was clearly established by the
Supreme Court’s decades-old decision in ex rel. Hill v. Wampler,
298 U.S. 460, supra. In other words, the due process right asserted
by Petitioner has been clearly established since the 1936 Wampler
decision;

he

is

not

relying

on

a

newly-recognized

right.

Accordingly, § 2244(d)(1)(C) does not apply.
4.
The

most

28 U.S.C. § 2244(d)(1)(D)
generous

start

date

for

Nolley

is

found

in

§ 2244(d)(1)(D). This section applies where the date factual
predicate of the claim is neither known nor reasonably discoverable
at the time the petitioner’s judgment of conviction became final.
Even using this date, the petition is still untimely.
Under Section 2244(d)(1)(D), a court must “determine when a
duly diligent person in [the petitioner’s] circumstances would have
discovered [the factual predicate] for his sentencing claim.” Wims
v. United States, 225 F.3d 186, 190 (2d Cir. 2000). The relevant
question is when the facts could have been discovered through due
diligence, “regardless of whether petitioner actually discovers the
relevant facts at a later date.” Id. at 188. Here, Nolley complains
that because the trial court did not specify the manner in which
the terms of imprisonment were to be served, they therefore must
run concurrently by operation of P.L. § 70.25(1). According to
Nolley, Wampler, as explained by the Second Circuit in Earley,
makes the sentencing commitment papers a nullity because they

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allegedly conflict with the judge’s oral sentence. Nolley concludes
that the Erie County Clerk incorrectly completed the sentence and
commitment papers4 by classifying the sentences as consecutive, and
that NYSDOCCS consequently miscalculated his aggregate term of
imprisonment.
With due diligence, Nolley arguably should have had knowledge
of the mistake at the time the commitment papers were issued, in
November 1993. It also appears that he had actual knowledge of the
alleged mistake on January 8, 1997, when he filed his first motion
to vacate the sentence on the basis that his aggregate sentence
erroneously

had

been

calculated

by

running

the

two

terms of

imprisonment consecutively.
The latest possible date for discovery of the sentencing
claim’s factual predicate was the date of the first letter from
Attorney Druar (May 31, 2002) in the series of letters regarding
Petitioner’s pursuit of this claim in state court. However, the
petition is still untimely. The limitations clock would have run
for nearly eight years from May 31, 2002, until March 5, 2010, when
Nolley filed his next properly filed state-court collateral motion
so

as

to

qualify

for

statutory

tolling

under

28

U.S.C.

§ 2244(d)(2). By this time, the statute of limitations had long
since expired.
4

The Certificate of Conviction, dated November 22, 1993, indicates
as follows: “Each sentence to run consecutive.” See Exhibits to the
Petition (Dkt. #1).

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C.

Equitable Tolling

The

one-year

equitable

reasons.

limitation
“To

be

period

entitled

may
to

also

be

equitable

tolled

for

tolling,

[a

petitioner] must show ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in
his way’ and prevented timely filing.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)); accord, e.g., Smaldone v. Senkowski, 273
F.3d 133, 138 (2d Cir. 2001). “The term ‘extraordinary’ does not
refer to the uniqueness of the petitioner’s circumstances, but
rather how severe an obstacle it is for the prisoner endeavoring to
comply with AEDPA’s limitations period.” Bolarinwa v. Williams, 593
F.3d 226, 231-32 (2d Cir.2010) (internal quotation marks and
citations omitted).
Nolley has failed to assert any basis for equitable tolling of
the one-year statutory limitation period, and none is apparent on
the record before the Court. Specifically, there is no indication
that

petitioner

“extraordinary”

“diligently”
circumstances

pursued

his

prevented

rights
him

from

or

that

any

filing

his

petition within the one-year statutory limitation period. Thus,
there is no basis to equitably toll the one-year limitation period
prescribed by AEDPA. The Court notes that Nolley was advised
repeatedly by his former attorney to file a state habeas petition
in order to press his sentencing claim but Nolley did not do so.
Such a filing likely would have provided some additional statutory
tolling.
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IV.

Conclusion
For the foregoing reasons, the petition filed by Quincy Nolley

(Dkt. #1) is dismissed as time-barred. Petitioner’s request to
amend his petition, asserted in Dkt. #10, is dismissed as moot in
light of the Court’s dismissal of the petition. 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). 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. See 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
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
June 12, 2012

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