Canty v. Rock
Filing
9
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 6 Motion to Dismiss and the Petition for a writ of habeas corpus is dismissed. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/13/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MOSHE CINQUE CANTY,
Petitioner,
-vs-
No. 6:13-CV-6232(MAT)
DECISION AND ORDER
DAVID ROCK, Superintendent of
Upstate,
Respondent.
I.
Introduction
Pro
se
petitioner
Moshe
Cinque
Canty
(“Canty”
or
“Petitioner”), a prisoner in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”) has
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging the constitutionality of a prison disciplinary
hearing which resulted in the imposition of segregated confinement
and the recommended loss of good time credits.
II.
Factual Background and Procedural History
Petitioner is incarcerated pursuant to a November 18, 1999
judgment of
the
New
York
State
Supreme
Court,
Kings County,
following a jury verdict convicting him of Attempted Murder in the
Second Degree and lesser charges. See People v. Canty, 305 A.D.2d
612 (2d Dept. 2003), lv. denied, 100 N.Y.2d 579 (2003). Canty was
sentenced to an aggregate prison term of twenty years, to be
followed by five years of post-release supervision. Canty does not
challenge the constitutionality of these underlying convictions.
The subject of the instant habeas petition is a Tier III
prison disciplinary hearing held at Southport Correctional Facility
on January 1, 2010, following which Canty was found guilty of
possessing
gang-related
material,
namely,
a
document
entitled
“Blood Hound Brim Prison Chapter Structure,” which was found in a
Bible in Canty’s cell. Canty was sentenced to 18 months in the
Special Housing Unit, with six months of the sentence suspended and
deferred, and twelve months recommended loss of good time credits.
Petitioner appealed the decision, arguing that (1) he was
denied his right to be present during a portion of the hearing;
(2) he was denied adequate assistance in preparing for the hearing;
(3) he was denied his right to call a witness; (4) the hearing
officer failed to explain in writing why the witness request was
denied; and (5) the punishment was excessive. On March 31, 2010,
the
determination
Director
Norman
was
affirmed
Bezio
on
denied
administrative
Petitioner’s
appeal.
request
SHU
for
reconsideration on April 14, 2010.
Petitioner filed an action in New York State Supreme Court,
Chemung County pursuant to New York Civil Practice Law and Rules
(“C.P.L.R.”)
Article
78,
challenging
the
adverse
disciplinary
finding. The Article 78 petition was denied on March 10, 2011. On
February 9, 2012, the Appellate Division, Third Department affirmed
the denial, and on May 3, 2012 the New York Court of Appeals denied
leave to appeal. Canty v. Fischer, 92 A.D.3d 1055 (3d Dept.), lv.
denied, 19 N.Y.3d 802 (2012).
In his pro se habeas petition dated April 21, 2013, Canty
claims that (1) he was denied his right to be present at the
hearing; and (2) he was denied his right to call witnesses.
-2-
Respondent has moved to dismiss the petition as untimely. Canty has
not responded to Respondent’s motion to dismiss.
For
the
reasons
discussed
below,
Respondent’s
motion
to
dismiss the petition is granted, and the petition is dismissed as
untimely.
III. Timeliness
Canty, a prisoner in state custody whose habeas petition
challenges an administrative decision by DOCCS, properly brought
his petition pursuant to 28 U.S.C. § 2254. See Cook v. New York
State Div. of Parole, 321 F.3d 274, 278-79 (2d Cir. 2003) (holding
that petition challenging administrative decision revoking state
prisoner’s parole was an “application . . .
in behalf of . . . a
person in custody pursuant to the judgment of a State court . . .
on the ground that [the applicant] is in custody in violation of
the
Constitution
.
.
.
of
the
United
States[,]”
28
U.S.C.
§ 2254(a)). A one-year statute of limitations, see 28 U.S.C.
§ 2244(d)(1), is applicable to habeas petitions brought pursuant to
28 U.S.C. § 2254. In Cook, the Second Circuit applied § 2244(d)(1)
to the petition challenging a parole revocation. There is no reason
why § 2244 should not apply in Canty’s case. See Walker v. O’Brien,
216 F.3d 626, 632-33 (7th Cir.) (“[W]e have held in numerous cases
that § 2254 was the correct vehicle for contesting loss of good
time credit in prison disciplinary proceedings, and we adhere to
those decisions today.”) (citations omitted), cert. denied sub nom.
Hanks v. Finfrock, 531 U.S. 1029 (2000).
-3-
Respondent argues that Canty’s petition is untimely because it
was
not
filed
with
in
the
applicable
one-year
statute
of
limitations period set forth in 28 U.S.C. § 2244(d)(1), which
provides that a§ 2254 petition must be filed no more than one year
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). However, the statute of limitations in
§ 2244(d)(1) is tolled during the pendency of a properly filed
application for state post-conviction or other collateral review
with respect to the pertinent judgment or decision. See 28 U.S.C.
§ 2244(d)(2).
Turning to the issue of which event supplies the correct
start-date, the Court finds that § 2244(d)(1)(A) does not apply
because Canty is challenging an administrative decision and not a
court-imposed judgment of conviction. See Palmer v. Phillips,
No. 05 Civ. 9894(KMW), 2007 WL 60419, at *4 (S.D.N.Y. Jan. 8, 2007)
(“The word “final” in § 2244(d)(1)(A) refers to a judgment of
-4-
conviction, not to an administrative decision.”) (citing Cook, 321
F.3d at 280) (where a prisoner’s habeas petition challenges his
parole revocation, the statute of limitations runs not from the
date
of
underlying
conviction
but
from
the
date
of
final
revocation, because the revocation is the “factual predicate” for
the
petition)).
Sections
2244(d)(1)(B)
and
(C)
likewise
are
inapplicable because Canty is not claiming that some state action
impeded him from seeking habeas relief or that there is an issue
regarding
the
retroactive
application
of
a
newly
recognized
constitutional right.
In accordance with other courts in this Circuit, the Court
finds that § 2244(d)(1)(D) supplies the correct limitations startdate for a habeas petition a challenging prison disciplinary
hearing. E.g., Pitt v. Rabiduea, No. 9:10-CV-1233 GLS/RFT, 2013 WL
4457377, at *2-3 (N.D.N.Y. Aug. 16, 2013). The statutory period
thus begins to run on the “date on which the factual predicate of
the claim or claims presented could have been discovered through
the exercise of due diligence.” Id. (citing Cook, 321 F.3d at
280–81)
(holding
that
“[t]he
limitations
time
therefore
did
commence at a time set by the statute, when that ‘factual predicate
[for his] claim . . . could’ reasonably have been discovered” and
that the “factual predicate” for a petitioner challenging a parole
revocation “is the revocation of his parole”)).
The “factual predicate” of Canty’s habeas petition is the
superintendent’s decision recommending that good time credits be
withheld. E.g., Pitt, 2013 WL 4457377, at *3. That decision became
-5-
“discoverable” within the meaning of § 2244(d)(1)(D) on the date
that it became administratively final. Id. (citing Cook, 321 F.3d
at 280) (“factual predicate” under § 2244(d)(1)(D) was “when Cook
was notified that the administrative decision to revoke his parole
had become final”); other citation omitted).
Here,
Canty
was
found
guilty
of
possessing
gang-related
material at the conclusion of the superintendent’s hearing on
January 27, 2010. He administratively appealed the disciplinary
finding, which was affirmed on March 31, 2010. Canty then sought
reconsideration of the administrative appeal, and that request was
denied on April 14, 2010. At that point, Canty had no further
administrative
avenues
open
to
him.1
Thus,
under
28
U.S.C.
§ 2244(d)(1)(D), April 14, 2010 is the relevant start-date for the
statute of limitations. See McPherson v. Burge, No. 9:06-CV-1076
(GTS/VEB), 2009 WL 1293342, at *5 (N.D.N.Y. May 5, 2009) (relying
on Cook to find that the “factual predicate” of petitioner’s claims
regarding the revocation of his good time credits “was readily
identifiable on the date the administrative decision to revoke his
good time credits became final”); see also Pitt, 2013 WL 4457377,
at *4 (“[F]or purposes of [§ 2244(d)(1)]’s one-year limitations
period, the superintendent’s disciplinary decision became final
upon Petitioner’s receipt of the Commissioner’s decision [affirming
the decision].”).
1
An inmate wishing to challenge an adverse disciplinary decision by the
facility superintendent has only one direct administrative remedy available,
i.e., an appeal the decision to DOCCS’ commissioner, who can modify or overturn
the superintendent’s decision. See N.Y. COMP. CODES R. & REGS. tit. 7, § 254.8.
-6-
Absent
any
statutory
or
equitable
tolling,
the
one-year
limitations period would have ended on April 14, 2011. However,
Canty was entitled to some tolling under 28 U.S.C. § 2244(d)(2)
because he sought collateral review of the Commissioner’s decision
by filing a C.P.L.R. Article 78 petition. See Wall v. Kholi, ___
U.S. ____, 131 S. Ct. 1278, 1285 (2011) (defining “collateral
review” in the context of 28 U.S.C. § 2244(d)(2) as “judicial
review of a judgment in a proceeding that is not part of direct
review”); see also People v. Liden, 19 N.Y.3d 271, 275 (2012) (“The
usual
way
to
obtain
judicial
review
of
the
action
of
an
administrative agency is a proceeding under CPLR article 78. . .
.”).
The limitations period here ran for 100 days, from April 14,
2010,
until
July
23,
2010,
when
Canty
filed
his
Article
78
proceeding. A collateral motion is pending for purposes of Section
2244(d)(2) “from the time it is first filed until the time it’s
finally disposed of and further appellate review is unavailable
under the particular state’s procedures.” Saunders v. Senkowski,
587 F.3d 543, 548 (2d Cir. 2009). The limitations period thus was
tolled from July 23, 2010, until May 3, 2012, the date that the New
York Court of Appeals denied leave to appeal the denial of the
Article 78 petition.
The statute of limitations ran again from May 3, 2012, until
April 21, 2013, the date Canty commenced this action, for a total
of 353 days. As noted above, 100 days elapsed prior to Canty filing
his Article 78 proceeding. Thus, the statute of limitations ran for
-7-
a total of 453 days (353 days plus 100 days), making his federal
habeas petition, filed on April 21, 2013, untimely by 88 days.
In order to obtain review on the merits of his untimely
petition, Canty bears the burden of showing that he is entitled to
equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). There are two elements to a claim of equitable tolling: (1)
diligent pursuit by the petitioner of his rights; and (2) an
“extraordinary circumstance” which stood in the petitioner’s way
and prevented him from timely filing. Id.; see also Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (equitable tolling applies
only
in
“rare
petitioner
to
and
exceptional
demonstrate
circumstances”
that
“extraordinary
and
requires
a
circumstances”
prevented him from timely filing and that he “acted with reasonable
diligence throughout the period he seeks to toll”). Equitable
tolling also “requires the petitioner to demonstrate a causal
relationship between the extraordinary circumstances on which the
claim for equitable tolling rests and the lateness of his filing,
a demonstration that cannot be made if the petitioner, acting with
reasonable diligence, could have filed on time notwithstanding the
extraordinary circumstances.” Valverde v. Stinson, 224 F.3d 129,
134 (2d Cir. 2000).
Canty
did
not
file
a
traverse
or
reply
to
Respondent’s
memorandum of law in opposition to the petition and has not claimed
that he is entitled to equitable tolling. There is nothing in the
record indicate that this is one of those “rare and exceptional”
cases where equitable tolling should apply. In particular, there is
-8-
no
suggestion
that
any
“extraordinary
circumstance”
“beyond
[Canty’s] control,” Smaldone v. Senkowski, 273 F.3d 133, 138
(2d Cir. 2001), prevented him from timely filing his petition.
Accordingly, the Court agrees with Respondent that the petition
should be dismissed because it is untimely, and Canty has not
established entitlement to equitable tolling of the limitations
period.
IV.
Conclusion
For the foregoing reasons, the petition (Dkt #1) for a writ of
habeas corpus is dismissed.
Because Petitioner has failed to make
a substantial showing of a denial of a constitutional right, see
28 U.S.C. § 2253(c)(2), no certificate of appealability shall
issue. The
Court
hereby certifies
that
any appeal
from
this
Decision and Order would not be taken in good faith and therefore
denies leave to appeal as a poor person. Any further requests for
poor person status must be made, on motion, to the Second Circuit.
The Clerk of the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
December 13, 2013
Rochester, New York
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?