Wallace v. Elmira CF

Filing 16

-CLERK TO FOLLOW UP- DECISION AND ORDER dismissing the amended petition (Dkt #7) as time-barred. 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). (Clerk to close case.) Copy of this Decision and Order sent to Mr. Wallace by first class mail. Signed by Hon. Michael A. Telesca on 8/30/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
RICHARD WALLACE,
No. 6:15-cv-06060(MAT)
DECISION AND ORDER

Petitioner,
-vsPAUL CHAPPIUS, Superintendent,
Respondent.
______________________________________
I.

Introduction
Pro se petitioner Richard Wallace (“Petitioner”) seeks a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he
is being detained in Respondent’s custody in violation of his
Federal constitutional rights. Petitioner is currently serving an
indeterminate prison term of 25 years to life as the result of a
judgment entered against him on October 24, 1997, in New York State
Supreme Court, Monroe County (Affronti, J.), following a jury
verdict convicting him of Murder in the Second Degree (N.Y. Penal
Law § 125.25(1)).
II.

Factual Background and Procedural History
The

conviction

here

at

issue

stems

from

an

incident

on

March 29, 1996, in which Petitioner shot and killed Sadiki Maxwell
(“Maxwell”) inside a grocery store in Monroe County. At some point
prior to the shooting, Maxwell and one of his cohorts had broken
into the home where Petitioner and his girlfriend lived, assaulted
them, and robbed them of cash at gunpoint.

Later, while Petitioner, his girlfriend, and another man were
driving around, they saw Maxwell on the street. Petitioner, armed
with a handgun, got out of the car and followed Maxwell into a
grocery store, where he fatally shot him multiple times. Petitioner
ran back into the car and informed his girlfriend that he had
killed Maxwell.
The jury convicted Petitioner as charged in the indictment.
After Petitioner was sentenced, he pursued a direct appeal of his
conviction. The Appellate Division, Fourth Department, of New York
State Supreme Court unanimously affirmed the judgment, and the
New York Court of Appeals denied leave to appeal. People v.
Wallace, 270 A.D.2d 823 (4th Dep’t), lv. denied, 95 N.Y.2d 806
(2000).
In pro se papers dated September 6, 2012, Petitioner attacked
appellate counsel’s effectiveness by filing an application for a
writ of error coram nobis. The Appellate Division denied the motion
on December 21, 2012, and denied reargument on March 15, 2013. The
Court of Appeals denied leave to appeal on March 25, 2013.
On February 17, 2014, Petitioner filed a pro se motion to
vacate the judgment pursuant to New York Criminal Procedure Law
(“C.P.L.”) § 440.10 in Supreme Court, Monroe County (Affronti, J.)
(“the § 440 Court”). Petitioner asserted that trial counsel was
ineffective for failing to communicate to him that the prosecutor
had extended an offer of a 25-year determinate prison term in
exchange

for

his

guilty

plea
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to

a

charge

of

first-degree

manslaughter. Petitioner claimed to have first learned of the plea
offer through a conversation he had with his mother, Angella
Wallace (“Mrs. Wallace”), on July 27, 2013, when she visited him in
prison. Petitioner submitted an affidavit from his mother in
support of his motion. The § 440 Court ordered a hearing, which was
conducted on June 9, 2014.
Following the hearing, the § 440 Court issued a written
decision denying relief. Among other things, the § 440 Court held
that Petitioner “did not meet his burden of establishing, by a
preponderance of the evidence, that counsel failed to convey a plea
offer to him.” SR.251. According to Petitioner, he first learned of
the alleged offer when his mother mentioned it to him when she
visited him in prison in July 2013, and asked him why he “didn’t
take the plea.” From speaking to his mother, Petitioner testified,
he

learned

that

the

offer

involved

a

plea

to

first-degree

manslaughter in exchange for a 25-year determinate prison sentence
and

waiver

of

his

right

to

appeal.

SR.205-07.

Although

Mrs. Wallace’s affidavit stated that the prosecutor had offered
Petitioner a “plea deal of 25 years,” the § 440 Court found that
“her testimony at the hearing belie[d] [such a] belief,” because
she testified that her discussion with defense counsel did not
include the nature of the plea or the sentence Petitioner would
receive. Id. Notably, on cross-examination, Mrs. Wallace admitted
that she did not know any of the terms of the plea offer. Rather,
she said that defense counsel had told her that the prosecution was
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going to make a plea offer, and because the case did not look good
for Petitioner, he should take the plea. However, Mrs. Wallace did
not know what crime her son would be expected to plead guilty to;
nor did she know what sentence he would receive in return. The
§ 440 Court concluded that Mrs. Wallace’s lack of detail when she
related

her

conversation

with

defense

counsel

regarding

Petitioner’s sentence actually supported the testimony of the
prosecutor, who said that he had no recollection of any offer and
that, given the serious nature of the charges, such an offer would
have required supervisory approval. The prosecutor testified that
there was no information in the file to corroborate Petitioner’s
assertions regarding the alleged plea offer. The § 440 Court
further concluded that “the weight of the evidence supports the
view that no plea discussions ever occurred between the defense and
the prosecution.” SR.252 (emphasis in original). Finally, the § 440
Court took judicial notice of the fact that in 1997, New York’s
Penal Law required that prison sentences for class B felonies be
indeterminate, not determinate. Thus, any offer of a determinate
25-year sentence in return for a guilty plea to first-degree
manslaughter,

a

class

B

felony,

would

have

been

an

illegal

sentence. SR.252-53. Petitioner sought leave to appeal the denial
of the C.P.L. § 440.10 motion, and the Appellate Division denied
leave on [ ].
Petitioner filed his original petition on January 12, 2015
(Dkt #1), and an amended petition (Dkt #7) on May 5, 2015. He
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asserts entitlement to habeas relief on the basis that his trial
counsel was ineffective for failing to communicate a plea offer to
him, and that he was prejudiced by counsel’s performance because he
would have elected to plead guilty had he known of the alleged plea
offer. Respondent filed a memorandum of law in opposition arguing
that the petition is untimely and is, in any event, without merit.
Petitioner did not file a reply.
For the reasons discussed below, the Court dismisses the
amended petition as untimely.
III. Timeliness
This matter is governed by the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). AEDPA imposes a one-year
statute of limitations on state prisoners seeking habeas corpus
review in federal court. See 28 U.S.C. § 2244(d)(1). The statute
begins to run from the latest of four dates, including “(A) the
date on which the [petitioner’s] judgment [of conviction] became
final by the conclusion of direct review or the expiration of the
time for seeking such 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).
Calculating timeliness using subsection (A) of § 2244(d)(1)
results in the petition being untimely. Here, the New York Court of
Appeals denied Petitioner’s application for leave to appeal on
March 25, 2000. His conviction became final 90 days later, on
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June 23, 2000, the date that his time to seek a writ of certiorari
to the Supreme Court expired. Jimenez v. Quarterman, 555 U.S. 113,
119 (2009). The petition was required to have been filed within one
year of that date, i.e., by June 23, 2001. While “[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[,]” 28 U.S.C. § 2244(d)(2), Petitioner did not file any
such applications until 2013, when he brought an application for a
writ of error coram nobis. By that time, however, over a decade had
passed

since

the

expiration

of

statute

of

limitations.

“A

state-court post-conviction motion cannot restart a statute of
limitations period that has already run.” Conception v. Brown, 794
F. Supp.2d 416, 420 (W.D.N.Y. 2011) (citing Doe v. Menefee, 391
F.3d 147, 154 (2d Cir. 2004) (“When the AEDPA limitations period
expired on November 19, 1999, Wall had not yet filed the § 440
motion,

thereby

losing

the

opportunity

to

invoke

28

U.S.C.

§ 2244(d)(2)’s provision for tolling the limitations period during
the pendency of a state post-conviction motion.”); other citations
omitted).
Subsection

(D)

of

§

2244(d)(1)

extends

the

statute

of

limitations for claims based on newly discovered evidence, and
arguably could be applicable here. Petitioner claims that he first
“discovered” that his attorney provided ineffective assistance on
July 27, 2013, the date on which his mother first informed him that
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the prosecutor had communicated to defense counsel an offer (never
conveyed to Petitioner) whereby Petitioner could resolve the murder
charge against him by pleading guilty to first-degree manslaughter
in exchange for a sentence of 8 1/3 to 25 years. As Respondent
points out, Petitioner’s allegations in the petition about the
nature and length of the sentence he would have received under the
plea agreement are at odds with his assertions made in connection
with the C.P.L. § 440.10 motion, where he claimed that the alleged
sentence under the plea offer would have been a determinate term of
25 years. The Court agrees that this appears to be an attempt by
Petitioner to tailor his allegations to comport with information he
learned following the evidentiary hearing on his C.P.L. § 440.10
motion. As noted above, the § 440 Court observed that in 1997,
former N.Y. Penal Law § 70.00(1) only permitted an indeterminate
prison sentence with regard to a first-degree manslaughter charge.
In 1997, then, the maximum sentence Petitioner could have received
as a non-predicate felon was an indeterminate term 8 1/3 to 25
years. SR.228-29, 252-53. The § 440 Court found that “any offer of
a determinate sentence of 25 years in return for a plea of guilty
to Manslaughter in the First Degree would have been rejected by the
court because it constituted an illegal sentence” in 1997. SR.25253. Indeed, the illegality of the 25-year determinate sentence
allegedly offered by the prosecutor was a key factor in the § 440
Court’s conclusion that no plea offer ever had been extended to
Petitioner.
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This Court finds that subsection (D) of § 2244(d)(1) cannot
apply here because Petitioner’s alleged conversation with his
mother in 2013 did not create a new “factual predicate” for his
ineffective assistance claim. The § 440 Court found Mrs. Wallace’s
version of events not credible, given the discrepancies between her
affidavit and testimony. It concluded that there was, in fact, no
plea

offer

extended

to

Petitioner.

AEDPA

provides

that

“a

determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). Petitioner provided no such
evidence in state court, and he did not respond to Respondent’s
timeliness arguments in this proceeding. The Court therefore finds
that

Petitioner

has

failed

to

overcome

the

presumption

of

correctness accorded to the § 440 Court’s factual determinations
regarding, inter alia, witness credibility and the existence of a
plea offer. See Williams v. Ercole, 486 F. App’x 208, 211, 2012 WL
2548535, at *2 (2d Cir. 2012) (unpublished opn.) (letter and
affidavit that state court found to lack credibility did not create
factual predicate within meaning of 28 U.S.C. § 2244(d)(1)(D) so as
to delay start of limitations period for state prisoner seeking
habeas relief under § 2254).

Furthermore, Petitioner’s shifting

allegations regarding the substance of the alleged plea offer makes
it even less credible that he had a conversation in 2013 with his

-8-

mother

in

which

she

provided

the

factual

predicate

for

his

ineffective assistance claim.
To

qualify

for

equitable

tolling

of

the

statute

of

limitations, a habeas petitioner “bears the burden of establishing
two elements: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner has not
attempted to make the requisite showing, and the Court concludes
that there is no basis on the present record for finding that
Petitioner pursued his rights diligently, and was obstructed from
timely filing his petition by some extraordinary circumstance.
IV.

Conclusion
For the reasons stated above, the amended petition (Dkt #7) is

dismissed as time-barred. 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.

28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
_______________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

August 30, 2016
Rochester, New York.

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See