Pittman v. The People of the State of New York

Filing 11

DECISION AND ORDER denying 1 Petition for Writ of Habeas Corpus filed by Mario Pittman and denying a certificate of appealability. Signed by Hon. Michael A. Telesca on 11/17/17. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is requested to send a copy of this Decision and Order to the pro se petitioner. The Clerk of Court is further requested to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARIO PITTMAN,
Petitioner,

No. 6:15-cv-06293-MAT
DECISION AND ORDER

-vsP. ZHAPPIU,
Respondent.

INTRODUCTION
Proceeding pro se, Mario Pittman (“Petitioner”) has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254
alleging that he is unconstitutionally incarcerated in Respondent’s
custody pursuant to a judgment entered November 23, 2010, in New
York State Supreme Court, Erie County (Kloch, A.J.), following a
jury trial at which he was convicted of first-degree attempted
murder (N.Y. Penal Law §§ 110.00, 125.27(1)(a)(i); (b)) seconddegree criminal possession of a weapon (id., § 265.03(former (2)));
and

third-degree

criminal

possession

of

a

weapon

(id.,

§

265.02(1)). Petitioner is presently serving his sentence.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Under Erie County Indictment No. 00887-2005, Petitioner was
charged

with

first-degree

125.27(l)(a)(i)),

two

attempted

counts

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of

murder

(P.L.

second-degree

§§

110.00,

attempted

(intentional) murder (id., §§ 110.00, 125.25(1)), second-degree
criminal possession of a weapon (id., § 265.03(former (2)), and
third-degree criminal possession of a weapon (id., § 265.02(1)).
The charges stemmed from an incident on April 7, 2005, in which
Petitioner allegedly attempted to fatally shoot Buffalo Police
Department Officers Thomas English (“English”) and Gregory Braswell
(“Braswell”) with a revolver. Petitioner was tried before a jury in
New York State Erie County Court (Amico, J.). He was acquitted of
second-degree

attempted

murder

with

regard

to

Braswell

but

convicted of the remaining counts.
On March 14, 2008, the Appellate Division, Fourth Department,
of New York State Supreme Court (“the Fourth Department”) reversed
the judgment of conviction on the law and granted a new trial. In
a 4-1 decision, the Fourth Department found that the trial court
“erred in permitting the People to present evidence concerning his
conviction of attempted criminal possession of a weapon in the
second degree arising from a 1998 incident in which defendant
attempted to shoot a police officer.” People v. Pittman, 49 A.D.3d
1166, 1167, 854 N.Y.S.2d 623, 624 (4th Dep’t 2008). Finding that
the potential for prejudice outweighed the probative value of that
evidence, the majority found the evidentiary error not harmless and
reversed Petitioner’s conviction.
Petitioner proceeded to a re-trial before Associate Justice
Richard Kloch, Sr. in Erie County Supreme Court. As noted above,

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the jury returned a verdict convicting Petitioner of first-degree
attempted murder and related weapons-possession charges. He was
sentenced

as

a

persistent

violent

felony

offender

to

four

consecutive indeterminate terms of imprisonment with the maximum
term of life and the minimum term of twenty-five years.
On direct appea1, Petitioner’s appellate counsel raised the
following grounds for reversal: the trial court’s erroneously
refused to hold a competency hearing; the trial court erred in
denying two for-cause challenges by defense counsel during jury
selection; the trial court erred in admitting testimony by one of
the victims, Braswell; the verdict was against the weight of the
credible evidence and not supported by legally sufficient evidence;
Petitioner was excluded from a material stage of the trial; the
prosecutor committed misconduct; and the sentence was harsh and
excessive.

By

an

order dated

September

27, 2013,

the

Fourth

Department unanimously affirmed the conviction. People v. Pittman,
109 A.D.3d 1080, 91 N.Y.S.2d 600 (4th Dep’t 2013). The New York
Court of Appeals denied leave to appeal on December 30, 2013.
People v. Pittman, 22 N.Y.3d 1043 (2013).
Petitioner then filed the instant habeas petition on June 29,
2015. Respondent answered the petition. Petitioner did not file a
traverse.
For the reasons discussed below, the petition is dismissed.
DISCUSSION

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I.

The Petition is Untimely
Petitioner’s

petition

post-dates

the

enactment

of

the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
which sets forth a one-year limitations period for filing habeas
petitions. The start-date of the limitations period can vary but in
most

cases–including

this

one–the

period

commences

after

the

prisoner’s state conviction becomes final. Thus, the conviction
became final on the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review, pursuant to 28 U.S.C. § 2244(d)(1)(A).
Where,
conviction,

as

here,

the

the

prisoner

limitations

period

has

actually

begins

to

appealed

run

after

the
the

expiration of the ninety-day period within which a petition for a
writ of certiorari may be filed in the United States Supreme Court,
even if such a petition is not actually filed. See 28 U.S.C. §
2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 525 (2003)
(“[A] judgment of conviction becomes final when the time expires
for filing a petition for certiorari contesting the appellate
court’s affirmation of the conviction.”).
As

noted

above,

the

New

York

Court

of

Appeals

denied

permission to appeal on December 30, 2013. Petitioner thereafter
had ninety (90) days in which to file a petition seeking a writ of
certiorari in the United States Supreme Court. See Sup. Ct. R.
13(1) (“A petition for a writ of certiorari seeking review of a

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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
Monday, March 31, 2014.1
Petitioner then had one year from that date, or until March
31, 2015, to file his federal habeas petition and have it be found
timely. See 28 U.S.C. 2244(d)(1)(A). The petition, deemed to have
been filed on June 29, 2015,2 when Petitioner signed it, was filed
90 days after the one-year limitations period expired. Therefore,
it is untimely.
II.

Petitioner Is Not Entitled to Statutory or Equitable Tolling
A.

Statutory Tolling

AEDPA contains a tolling provision which provides that “[t]he
time

during

which

a

properly

filed

application

for

State

post-conviction or other collateral review with respect to the

1

Ninety days after December 30, 2013, fell on Sunday, March 30, 2014, but,
by operation of law, the due date for Petitioner to file his petition is deemed
to be the next business day, Monday, March 31, 2014. See Fed. R. Civ. P.
6(a)(1)(C).
2

By operation of the “prison mailbox rule,” the petition is deemed to have
been filed on the date that Petitioner signed it. See Houston v. Lack, 487 U.S.
266, 276 (1988) (stating that the “prison mailbox rule” applies to pro se
incarcerated petitioners and provides that a pleading is deemed filed on the day
the petitioner hands it over to prison officials for mailing).

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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); see also, e.g., Smith v. McGinnis, 208 F.3d at 16.
On the form habeas petition, where it asks, “[o]ther than a
direct appeal from the judgment of conviction and sentence, have
you previously filed any petitions, applications, or motions (e.g.
a petition under NY CPL§ 440, a state habeas petition, or a
previous petition under 28 U.S.C. 2254) with respect to this
judgment in any court, state or federal[,]” Petitioner checked the
“No”

box.

(See

Petition

(“Pet.”)

(Dkt

#1),

¶

14).

Because

Petitioner never filed applications for State post-conviction or
other collateral review, he cannot avail himself of the statutory
tolling allowed for in 28 U.S.C. § 2244(d)(2).
B.

Equitable Tolling

The Second Circuit and the Supreme Court have found that
because AEDPA’s one-year time-bar is a statute of limitations
rather than a jurisdictional bar, it may be equitably tolled. See
Holland v. Florida, 560 U.S. 631, 645 (2010) (confirming that
AEDPA’s statute of limitations is not jurisdictional and “does not
set forth an inflexible rule requiring dismissal whenever its clock
has run”) (internal quotation marks omitted); Smith v. McGinnis,
208 F.3d 13, 16 (2d Cir. 2000). However, equitable tolling is
available only in the “rare and exceptional circumstances,” namely,
when “extraordinary circumstances prevented [the petitioner] from

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filing his petition on time.” Smith, 208 F.3d at 17. Thus, in order
to benefit from equitable tolling, a petitioner must establish “(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Harper v. Ercole, 648 F.3d 132, 136 (2d Cir. 2011)
(quoting

Holland,

560

U.S.

at

649

(internal

quotation

marks

omitted)).
The

Second

Circuit

“has

seldom

found

extraordinary

circumstances sufficient to warrant equitable tolling,” Atkins v.
Warden, 585 F. Supp.2d 286, 296 (D. Conn. 2008), aff’d, 354 F.
App’x 564

(2d

Cir.

2009),

and

has

“set

a

high

bar

to

deem

circumstances sufficiently ‘extraordinary’ to warrant equitable
tolling.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011).
Indeed, the term “extraordinary” does not refer to whether the
claimed obstacle is merely out of the ordinary or unusual, but
rather

to

“‘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) (quoting Diaz v.
Kelly, 515 F.3d 149, 154 (2d Cir. 2008)).
On the form petition, Petitioner was asked, “[i]f you did not
appeal from the adverse action on any petition, application, or
motion, explain briefly why you did not.” Petitioner stated that
this was his “first petition” and “furthermore, [he] just learn
about Supreme Court[.]” (Pet., ¶ 21). It is well established that

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lack of legal representation or ignorance of the law alone cannot
constitute an extraordinary circumstance that tolls the AEDPA’s
one-year statute of limitations. See, e.g., Doe v. Menefee, 391
F.3d 147, 175 (2d Cir. 2004) (noting that “pro se status does not
. . . merit equitable tolling” of AEDPA’s statute of limitations)
(citing Smith, 208 F.3d at 18)); Ormiston v. Nelson, 117 F.3d 69,
72 n. 5 (2d Cir. 1997) (“Mere ignorance of the law is, of course,
insufficient to delay the accrual of the statute of limitations.”).
On

the

record

before

the

Court,

there

is

no

suggestion

of

circumstances “sufficiently ‘extraordinary’ to warrant equitable
tolling,” Dillon, 642 F.3d at 363, and the Court finds that
Petitioner cannot avail himself of this doctrine.
In short, Petitioner’s petition must be dismissed as untimely.
III. The Petitioner’s Claims Are Unexhausted But Must Be Deemed
Exhausted and Procedurally Defaulted.
The grounds identified by Petitioner are somewhat difficult to
discern, but it appears that he is asserting the following claims:
(1) he was actually the victim of a shooting on April 7, 2005, and
he was “falsely arrested when [he] approached police after running
from gun men” (Pet., ¶ 22(A)); (2) defense counsel failed to move
to suppress his statement to police (Pet., ¶ 22(B)); (3) the
prosecutor failed to produce the results of gun powder residue
testing that would have proved he did not shoot a gun on the night
of the “false arrest) (Pet., ¶ 22(C)); (4) he was “never supposed

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to get indicted [by the grand jury] because the gun didn’t belong
to [him] (Pet., ¶ 22(D)). All of these claims are unexhausted
because, as Petitioner admits in the petition, he has never fairly
presented them in Federal constitutional terms to the State courts
in the course of completing one round of the State’s established
appellate review process. E.g., Baldwin v. Reese, 541 U.S. 27, 29
(2004) (describing exhaustion process that state prisoners must
follow). However, the claims must be deemed exhausted because
Petitioner no longer has available remedies in state court. E.g.,
Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). First, he has
already completed his direct appeal. By statute, New York law used
to specifically provide for only a single application for direct
review. Spence v. Sup’t, Great Meadow Corr. Fac., 219 F.3d 162, 170
(2d Cir.2000) (relying on former New York Rules for the Court of
Appeals (“N.Y. R. Ct.”) § 500.10(a) (discussing leave applications
for criminal appeals)). N.Y. R. Ct. § 500.10 has since been
amended, and criminal leave applications are now addressed in N.Y.
R. Ct. § 500.20. Although § 500.20 “does not specifically state
that there may be only one application for appeal, see N.Y. R. Ct.
§ 500.20, such a restriction may be inferred,” since “[b]oth Rule
500.20(d) and CPL § 460.10(5) provide a 30–day window for any such
application to be filed; this time limit would be meaningless were
multiple applications permitted.” Colon v. Connell, No. 07 Civ.
7169(BSJ)(JCF), 2009 WL 2002036, at *6 n. 4 (S.D.N.Y. July 9, 2009)

-9-

(noting that both N.Y. R. Ct. § 500.20(d) and N.Y. Crim. Proc. Law
§ 460.10(5) provide a 30–day window for any such application to be
filed;

"this

time

limit

would

be

meaningless

were

multiple

applications permitted"); accord, e.g., Cunningham v. Conway, 717
F.

Supp.2d

339,

365

(W.D.N.Y.

2010)

(collecting

cases).

In

addition, § 500.20(a)(2) provides that the leave letter must
indicate that “that no application for the same relief has been
addressed to a justice of the Appellate Division, as only one
application is available[.]” N.Y. R. CT. § 500.20(a)(2).
Apart from a direct appeal, the only other way for Petitioner
to exhaust his habeas claims would be to file a motion to vacate
the judgment pursuant to New York Criminal Procedure Law (“C.P.L.”)
§ 440.10. Because all of the claims are based on matters of record
that could have been raised on direct appeal, collateral review by
means of a such a motion is unavailable. See N.Y. Crim. Proc. Law
§ 440.10(2)(c) (“[T]he court must deny a motion to vacate a
judgment when . . . Although sufficient facts appear on the record
. . . such appellate review or determination occurred owing to the
defendant’s unjustifiable failure to take or perfect an appeal
during the prescribed period or to his unjustifiable failure to
raise such ground or issue upon an appeal actually perfected by
him. . . .”); see also Reyes v. Keane, 118 F.3d 136, 139-40 (2d
Cir. 1997) (“Denial of a [C.P.L. §] 440.10 motion, pursuant to
[C.P.L. §] 440.10(2)(c), will not always be appropriate in the

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ineffective assistance context. However, Reyes’s claim does not
fall within any of the exceptions noted by the New York courts
[because it was record-based]. . . . Reyes is therefore deemed to
have exhausted his state remedies for the ineffective assistance
claim by his procedural default on that issue.”) (internal citation
omitted).
The procedural rules that foreclose Petitioner’s return to
state court also render his habeas claims procedurally defaulted.
“A habeas petitioner may bypass the independent and adequate state
ground

bar

by

demonstrating

a

constitutional

violation

that

resulted in a fundamental miscarriage of justice, i.e., that he is
actually innocent of the crime for which he has been convicted.”
Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup
v. Delo, 513 U.S. 298, 321 (1995); other citation omitted).
In order to show “cause” for a default, a habeas petitioner
must demonstrate that “some objective factor external to the
defense”
Coleman

prevented
v.

the

Thompson,

petitioner
501

U.S.

from

722,

presenting

753

(1991).

the

claim.

Ineffective

assistance of counsel can constitute cause, but it must be true,
constitutional ineffectiveness, and it must be a fully exhausted,
non-procedurally defaulted claim. See Reyes v. Keane, 118 F.3d at
139–40.

Petitioner

here

does

not

have

a

meritorious,

fully

exhausted, and non-defaulted claim of ineffective assistance of
counsel to utilize as cause. It is immaterial whether prejudice

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exists because Petitioner has failed to demonstrate cause. See,
e.g., Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) (“[W]e need
not, in light of our conclusion that there was no showing of cause,
reach the question of whether or not [the petitioner] showed
prejudice.”).
Finally, for purposes of the miscarriage of justice exception,
“‘actual

innocence’

means

factual

innocence,

not

mere

legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
“To demonstrate ‘actual innocence’ a habeas petitioner ‘must show
that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence.’” Dunham, 313 F.3d at
730 (quoting Schlup, 513 U.S. at 327). Petitioner’s conclusory
protestations of innocence do not fulfill the heightened showing
necessary

to

invoke

the

“fundamental

miscarriage

of

justice”

exception to the procedural default rule. Thus, the Court finds
that all of Petitioner’s habeas claims are subject to an unexcused
procedural default.
In addition to being untimely, the petition contains only
procedurally defaulted claims which may not be reviewed on the
merits. Therefore, the petition properly may be dismissed on the
basis of procedural default, as well.
CONCLUSION
For the foregoing reasons, the petition is dismissed with
prejudice. Because Petitioner has failed to make a substantial

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showing of a denial of a constitutional right, see 28 U.S.C. §
2253(c)(2), no certificate of appealability shall issue. The Clerk
of Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
_______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 17, 2017
Rochester, New York.

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