Nolley v. Superintendent of Bare Hill

Filing 20

DECISION AND ORDER denying 14 Motion for Leave to Proceed in forma pauperis; denying 15 Motion to Vacate consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 3/7/17. (Clerk to mail copy of Decision and Order to Quincy D. Nolley.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
QUINCY D. NOLLEY,
No. 6:11-cv-06384(MAT)
DECISION AND ORDER

Petitioner,
-vsSUPERINTENDENT OF BARE HILL,
Respondent.

INTRODUCTION
Quincy D. Nolley (“Petitioner” or “Nolley”), an inmate in the
custody of New York State Department of Corrections and Community
Supervision (“DOCCS”), filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (“Section 2254”) that was
dismissed on June 12, 2012, by this Court. Petitioner now has moved
to vacate the judgment against him or, alternatively, to have his
motion to vacate characterized as a new habeas petition under
Section 2254.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner currently 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.

On

November 22, 1993, the trial court (Kubiniec, J.) sentenced Nolley.
Believing him to be a second felony offender, Judge Kubiniec
imposed two consecutive terms of 7-1/2 to 15 years, stating that

“[e]ach sentence [is] to be served consecutively. Consecutive
sentences.”

S.15.

Prior

to

the

conclusion

of

the

sentencing

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 sentence just imposed is set aside and
revoked, and the Court re-sentences as follows[,]” and went on to
sentence Nolley to longer sentences on the two convictions, namely,
7-1/2 to 22-1/2 years. S.16-17.1 Judge Kubiniec did not state
whether the revised sentences were to be served concurrently or
consecutively. S.17. The Erie County Clerk issued the sentence and
commitment

papers

later

that

day

(November

22,

1993);

these

documents stated that the sentences for the two convictions were
consecutive.
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 Judge Kubiniec, 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 this motion, Judge Kubiniec was
deceased. Erie County Court Judge John V. Rogowski heard the motion

1

Numerals preceded by “S.__”
Petitioner’s sentencing hearing.

refer

-2-

to

pages

from

the

transcript

of

and held, based on his review of the sentencing transcript, 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 first-time felon sentence.” Id.
Judge Rogowski also rejected the claim 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

Appellate Division, Fourth Department, of New York State Supreme
Court denied leave to appeal on September 29, 1997.
Petitioner apparently sought advice from his appellate counsel
in early 2002, about challenging the state courts’ rulings that his
sentences were to run consecutively. On May 31, 2002, appellate
counsel sent a letter to 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

-3-

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 to the Court, the attorney 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.”2 He reiterated that Nolley’s
best remedy was a habeas corpus such as the one that Nolley had
prepared or had someone prepare 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 in state court, 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
2

This Court has searched the District’s 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.

-4-

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 re-computed. Attorney Druar closed by saying, “I don’t
mean to confuse but one of these steps must be taken.”
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 (“the Parole Division”), 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 New York Penal Law (“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, the
Parole Division did not take any favorable action in response to
Attorney Druar’s letter.

-5-

On March 5, 2010, Nolley filed a pro se “Motion to Correct
Mistakes, Omis[s]ions, Defects, and Irregularities” in New York
State Supreme Court (Erie County), pursuant to C.P.L.R. § 2001.3
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.
Nolley then instituted the instant habeas proceeding by means
of a petition that was received by the Court on August 3, 2011.
Nolley raised 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. This
Court

found

that

the

petition

was

untimely

under

28

U.S.C.

§ 2244(d)(1), and that Nolley was not entitled to have the statute
of limitations equitably tolled. The Court dismissed the petition
and declined to issue a certificate of appealability. Judgment was

3

C.P.L.R. § 2001 extends the court’s power to forgive errors “[a]t any stage
of an action, including the filing of a . . . petition to commence an action” and
specifically including mistakes “in the filing process”. Miller v. Waters, 51
A.D.3d 113, 117 (3d Dept. 2008) (quoting N.Y. Civ. Prac. Law & R. § 2001).

-6-

entered in Respondent’s favor on June 13, 2012. Petitioner did not
file a notice of appeal.
On January 15, 2017, Petitioner filed a Motion for Leave to
Proceed

In

Forma

Pauperis

(Dkt

#14)

and

a

Motion

to

Vacate

(Dkt #15) the Decision and Order dismissing his habeas petition.
Petitioner argues that the Court used the incorrect start date for
the statute of limitations, and that his petition is timely.
Alternatively, Petitioner requests that the Motion to Vacate be recharacterized as a new (not second or successive) Section 2254
petition. On February 7, 2017, Respondent filed an Affidavit in
Opposition (Dkt #16) to Petitioner’s Motion to Vacate. Petitioner
filed

a

Reply

Affidavit

(Dkt

#19)

on

February

18,

2017.

Petitioner’s motions were deemed submitted on February 22, 2017.
For the reasons discussed below, the motions are denied.
DISCUSSION
I.

Timeliness of the Petition
A.

The Statute of Limitations

AEDPA4 amended the federal habeas statute to impose a one-year
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

statute

of

limitations applies to a habeas claim, such as that alleged by

4

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (1996).

-7-

Nolley, regarding alleged unauthorized acts by NYSDOCCS. See James
v. 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).
The limitations 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).
B.

Timeliness Calculations

The Court analyzed the Petition under each of subsections (A)
through (D) of § 2244(d)(1), and found that regardless of the
start-date utilized, events, the Petition was untimely. Because the
Court

has

found

that

a

typographical

error

affected

its

calculations, the Court will re-analyze the timeliness of the

-8-

petition. Petitioner does not suggest that subsections (B) or (C)
apply, and therefore the Court will consider only subsections (A)
and (D).
1.
First,

Section 2244(d)(1)(A)
the

Petition

was

not

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 Fourth Department, but on August 15, 1994,
appellate counsel executed a stipulation of discontinuance of the
appeal. By Order entered August 26, 1994, the Fourth Department
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.

-9-

Artuz, 150 F.3d 97, 102-02 (2d Cir. 1998), unless he can obtain the
benefit of the statutory tolling under Section 2244(d)(2).5
The Petition is unsigned and undated, and it is not clear when
Petitioner gave the Petition to prison officials for mailing. 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).
Here, the Petition was stamped “received” by the Clerk’s Office on
August 3, 2011, but 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.
In researching cases that have addressed similar situations,
it appears that district courts have added three to five days to
account for the time the unsigned pleading likely spent in the
mail. Here, a matter of several 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 July 3, 2011, it still is
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

5

“The 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” is not counted toward AEDPA’s one-year limitations period.
28 U.S.C. § 2244(d)(2); see also, e.g., Saunders v. Senkowski, 587 F.3d 543, 548
(2d Cir. 2009).

-10-

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 in state court, they do not serve to toll the
limitations period for a sufficient amount of time to render the
Petition timely. Nolley’s first post-conviction motion was filed
about four months prior to the one-year grace-period’s expiration
on April 24, 1997: On January 8, 1997, Nolley filed a motion in the
trial court to set aside his sentence under C.P.L. § 440.20. In an
order dated April 25, 1997, the trial court denied the motion, and
a leave to appeal was denied on September 29, 1997, by the Fourth
Department. The motion to set aside the sentence thus provides
statutory tolling from January 8, 1997, until September 29, 1997,
for a total of 265 days. See Figueroa v. Ricks, 378 F. Supp.2d 210,
219 (W.D.N.Y. 2005) (because petitioner was entitled to seek leave
to appeal the denial of his C.P.L. § 440.10 motion to vacate under
C.P.L. § 450.15(1), the motion continued to be pending until the
date the appellate court denied leave to appeal) (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)).

-11-

Nolley did not file another post-conviction motion in state
court until March 5, 2010, when he filed a motion pursuant to
New York Civil Practice Law and Rules (“C.P.L.R.”) § 2001 in the
trial court to correct alleged mistakes and omissions on the
Sentence and Commitment form. In the time between the conclusion of
his motion to set aside the sentence on September 29, 1997, and the
filing of his C.P.L.R. § 2001 motion, the Court has determined that
12 years, 5 months, and 5 days elapsed. Even taking into account
the 265 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 in 2010. Indeed, his habeas petition was not
filed until over a year later on the presumed date of July 3, 2011.
While a properly filed state-court motion can toll the oneyear period, it cannot serve to “restart” or “reset” an expired
limitations clock. See 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. . . .”).
Petitioner’s 2010 C.P.L.R. § 2001 motion was filed after the

-12-

expiration of the one-year limitations period, and cannot serve to
provide any statutory tolling.
Taking into account the 265 days of statutory tolling, the
Petition was filed 4,917 days after the grace-period expired on
April 24, 1997. It clearly is untimely under Section 2244(d)(1)(A).
2.
Section

28 U.S.C. § 2244(d)(1)(D)
2244(d)(1)(D)

section

extends

the

statute

of

limitations, insofar as it applies where the factual predicate of
the habeas claim is neither known nor reasonably discoverable at
the time the petitioner’s judgment of conviction became final. The
Court determined that even using this date, the Petition was 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 asserted
in his Petition 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, clearly established Supreme Court precedent,
Hill v. United States ex rel. Wampler, 298 U.S. 460, 464 (1936), as

-13-

explicated by the Second Circuit in Earley v. Murray, 451 F.3d 71,
74 (2d Cir. 2006), requires the conclusion that the sentencing
commitment papers are a nullity because they conflict with the
judge’s oral sentence. That is, the commitment papers provide that
the sentences are to run consecutively, but Judge Kubiniec did not
explicitly state that the sentences were to run consecutively.
Nolley concludes that the Erie County Clerk incorrectly completed
the sentence and commitment papers6 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 of 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 NYSDOCCS had
calculated

his aggregate sentence erroneously by running the two

terms of imprisonment consecutively. Giving Nolley the benefit of
the doubt, the Court found that the latest possible date for
discovery of this 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
6

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

-14-

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 post-conviction 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.
In the Motion to Vacate, Nolley contends that the Court should
have utilized April 17, 2007, the date his conditional release date
passed,

as

the

date

on

which

the

factual

predicate

of

his

sentencing claim could have been discovered through the exercise of
due diligence. Using April 17, 2007, as the start-date of the oneyear period, Petitioner would have had to have filed his petition
by April 17, 2008, in order to be timely. However, as noted above,
the Court—giving him the benefit of the doubt—has determined that
his petition was filed on July 3, 2011. Moreover, he did not file
a motion that could potentially allow for statutory tolling under
Section 2244(d)(2) until May 10, 2010, until over three years had
elapsed from

his

proposed start-date

of

April

17,

2007.

The

Petition is still untimely, even using the start-date urged by
Petitioner.
C.

Equitable Tolling

“To be entitled to equitable 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

-15-

timely filing.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In
its original Decision and Order, the Court found that
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
“diligently”
pursued
his
rights
or
that
any
“extraordinary” circumstances prevented him from filing
his petition within the one-year statutory limitation
period. . . .
In his Motion to Vacate, Nolley does not present any facts or
argument in support of equitable tolling. The Court finds no basis
to deviate from its original ruling that equitable tolling is not
warranted.
II.

Petitioner’s Alternative Request to Re-Characterize the Motion
to Vacate as a New Petition
In support of his alternative request to have his Motion to

Vacate re-characterized as a new Section 2254 petition, Petitioner
asserts that he suffered a constitutional injury, and became aware
of that injury, upon the maximum expiration date of his sentence,
October 17, 2014. Petitioner states that this constitutes “a new
factual basis” for a new Section 2254 petition, which would not
violate AEDPA’s gatekeeping provisions against second or successive
petitions, because “the sentence had yet to expire when [he]
brought his earlier Petition, and continued incarceration beyond
the

maximum

release

date

clearly

violates

State

and

Federal

laws[.]” Motion to Vacate at 3 (citing James v. Walsh, 308 F.3d 162
(2d Cir. 2002); McCullough v. Fischer, No. 13-CV-1176S, 2014 WL
-16-

576260 (W.D.N.Y. Feb. 10, 2014)). Relying on James and McCullough,
Nolley asserts that the start-date of the limitations period should
be October 17, 2014, which he contends is the date the factual
basis of his claim came into existence. He states that this new
petition (i.e., the Motion to Vacate) would be timely because,
taking into account statutory tolling,7 less than one year elapsed
between October 17, 2014, and January 17, 2017, the date he filed
the Motion to Vacate in this Court.
In James, 308 F.3d at 167–68, the Second Circuit addressed the
question of whether a later-filed petition which raised a claim
alleging the incorrect application of credit for time served and a
miscalculation of the conditional release date was a second or
successive petition under § 2244(b). James previously had filed a
habeas corpus petition under § 2254 challenging the imposition of
his sentence, and it was denied as time barred. James then brought
another § 2254 petition claiming that the New York State Department
of Corrections (DOCS), DOCCS’s predecessor, had erred “in its
calculation and application of his sentence and that he was being
held in violation of federal and state law. Specifically, James
alleged that DOCS had failed to apply the credit for time served on
his lesser sentence to his overall sentence, and thus miscalculated
7

Petitioner indicates that he filed a state habeas corpus proceeding on
April 22, 2015, in New York State Supreme Court, Wyoming County, which ceased to
be pending on December 23, 2016. See People ex rel. Nolley v. Annucci, 145 A.D.3d
1518, 2016 WL 7421240 (4th Dep’t Dec. 23, 2016), aff’g Decision and Order dated
June 23, 2015, Supreme Court, Wyoming County (Mohun, A.J.).

-17-

his conditional release date as April 2000 instead of April 1999.”
Id. at 165. The district court transferred the case to the Second
Circuit for certification as a second or successive petition, but
the Circuit found that it was not subject to AEDPA’s gatekeeping
provisions because it did not raise “a claim that was, or could
have been, raised in an earlier petition.” Id. at 167. To the
contrary, “James could not have argued that he was in custody in
violation of laws of the United States before the time when,
according to his calculations, he should have been released. . . .
Thus, the present claim had not arisen by 1997, when James filed
his first habeas petition.” Id. at 168.
McCullough

then

applied

James

to

a

situation

where

the

“petitioner claim[ed], or at least appear[ed] to claim, that
because the sentencing court orally imposed only a single sentence
of 7–1/2 to 15 years on the two Criminal Possession of a Weapon in
the Second Degree convictions but the commitment order imposed a
sentence of 7–1/2 to 15 years on both counts to run consecutively,
the order of commitment is a nullity and cannot be corrected at
this time without running afoul of due process.” McCullough v.
Fischer, 2014 WL 576260, at *5. McCullough reasoned that because he
had served the minimum term of his unrelated 10-to-20 year sentence
by over six years, and because the order of commitment upon which
he is being held by DOCCS was (according to him) a nullity, he was
entitled to an unconditional discharge. Thus, McCullough argued, in
2002, when he filed the first petition, he would not have served

-18-

the minimum term of his unrelated 10-to-20-year sentence, and
therefore he could not have brought this claim in that earlier
petition. Id. The district court agreed that the petitioner, in
2002, could not have brought that claim regarding the execution of
his sentence, and pursuant to James, his current petition was not
second or successive. Id.
The Court finds that James does not compel the result that
Nolley

urges,

and

the

Court

respectfully

declines

to

follow

McCullough. In James, the basis of the petitioner’s second petition
was that DOCS had erroneously failed to correctly apply his goodtime credit when calculating his conditional release date. It is
axiomatic that James could not have earned credit for time served
until he actually began serving his sentence. However, at the time
his sentence was imposed and he filed his first petition, he had
not yet earned the credit for time served that he claims was
erroneously

excluded.

In

other

words,

DOCS

could

not

have

erroneously failed to apply good-time credit that James had not yet
earned. Though Nolley argues that his new claim is actually a
challenge to the execution of his sentence by DOCCS, as opposed to
the imposition of his sentence by the sentencing court, it is a
distinction

without

a

difference.

The

gravamen

of

Nolley’s

sentencing claim is, and has always been, the alleged discrepancy
between Judge Kubiniec’s orally pronounced sentence and the Erie
County Court Clerk’s commitment order. In short, Nolley’s Motion to
Vacate raises a claim that not only could have been raised, but was

-19-

raised in an earlier petition. James, 308 F.3d at 167. The Court
therefore declines to re-characterize Nolley’s Motion to Vacate as
a new Section 2254 petition.
CONCLUSION
Petitioner’s Motion to Vacate is denied in its entirety. The
Court denies Petitioner’s request for vacatur of the Court’s
judgment dismissing his 2011 Petition, further denies his request
to recharacterize his Motion to Vacate as a new petition brought
under 28 U.S.C. § 2254. A court may only issue a certificate of
appealability “if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Since Petitioner has failed to make such a showing with regard to
any of his claims, the Court declines to issue a certificate of
appealability in this matter.
SO ORDERED.
S/Michael A. Telesca
__________________________
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

March 7, 2017
Rochester, New York

-20-