Opinion
09 Civ. 8437 (JGK).
June 30, 2011
MEMORANDUM OPINION AND ORDER
The petitioner filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1986 conviction in New York State Supreme Court, New York County. The petitioner pleaded guilty to one count of grand larceny in the third degree. The petitioner challenges his conviction on the grounds that the New York State Supreme Court erred in denying his New York Criminal Procedure Law ("CPL") § 440.10 petition without holding a hearing. The respondent seeks to dismiss the Petition on the grounds that this Court does not have jurisdiction under § 2254 and because the Petition is time-barred pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244, et seq. For the reasons stated below, the respondent's motion to dismiss is granted.
I.
On January 25, 1986, pursuant to his guilty plea, the petitioner was convicted of one count of grand larceny in the third degree in New York State Supreme Court, New York County. (La Ferlita Decl. Ex. I ¶ 6.) The petitioner was sentenced to an indeterminate prison term of one and one half to three years. (La Ferlita Decl. Ex. I ¶ 6.) The petitioner did not appeal his conviction. (La Ferlita Decl. Ex. A ¶ 4.) Before the termination date for his 1986 sentence, and unrelated to the grand larceny, the petitioner was convicted of two counts of manslaughter in the second degree and one count of assault in the first degree, and sentenced to an indeterminate term of thirty-five years to life imprisonment. That conviction was based upon events that occurred in January, 1989. Jones v. Artuz, No. 97 Civ. 2063, 2002 WL 31006171, at *1 (E.D.N.Y. Aug. 30, 2002). The judgment of conviction was entered on April 13, 1990. (La Ferlita Decl. ¶ 3.)
The events that formed the basis of the current petition began in 2001. The petitioner alleges that, on December 4, 2001, he encountered Delanta McGregory ("McGregory"), while both were in transit to separate correctional facilities. (La Ferlita Decl. Ex. A ¶ 8.) McGregory had been arrested with the petitioner for the 1986 grand larceny. (La Ferlita Decl. Ex. E ¶ 3.) The petitioner alleges that McGregory told him that during their 1986 arrests, McGregory told police that McGregory was solely responsible for the grand larceny and that the petitioner was not involved. (La Ferlita Decl. Ex. A ¶¶ 9-10.) The petitioner subsequently drafted an affidavit for McGregory which McGregory signed and had delivered to the petitioner in April 2003. (La Ferlita Decl. Ex. A ¶¶ 11-16).
In June 2003, more than sixteen years after his conviction, the petitioner filed a motion in New York State Supreme Court, challenging his conviction under CPL § 440.10. (La Ferlita Decl. Ex. A.) In his petition, the petitioner alleged that the prosecution withheld McGregory's statement to police in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963). (La Ferlita Decl. Ex. A ¶ 5.) In September 2003, the petitioner supplemented his CPL § 440.10 petition, alleging that although his attorney swore on April 22, 1985, that he was admitted to practice law in New York State, a letter from the New York State Supreme Court, Appellate Division ("Appellate Division"), indicated that the petitioner's attorney was not actually admitted to practice law until May 20, 1985. (La Ferlita Decl. Ex. C ¶¶ 5-9.) Because his attorney began representing him in March 1985, supposedly before his attorney's admission to the bar, the petitioner alleged that he was deprived of his right to the effective assistance of counsel. (La Ferlita Decl. Ex. C ¶¶ 3, 9.) Without opposition by the State, Justice Fried of the New York State Supreme Court, granted the petitioner's motion solely on the grounds that the petitioner was not represented by a licensed attorney beginning with the petitioner's arraignment on March 21, 1985. (La Ferlita Decl. Ex. D.)
On February 24, 2004, the State filed a motion to reargue the court's decision, and submitted a document from the office of the Clerk for the Appellate Division stating that the petitioner's attorney had been admitted to practice law on March 20, 1985, and that the earlier reference to May 20, 1985 was merely a typographical error. (La Ferlita Decl. Ex. E ¶ 14.) Justice Fried granted the motion to reargue on February 26, 2004. (La Ferlita Decl. Ex. G.) The State also asserted during reargument that court and police records showed no indication of McGregory's alleged statement, and that even if such records did exist, the petitioner's guilty plea precluded him from claiming a Brady violation. (La Ferlita Decl. Ex. I ¶¶ 19-25, 31.) On November 29, 2004, Justice Fried denied the petitioner's CPL § 440.10 motion. (La Ferlita Decl. Ex. K ("Supreme Court Order").) Justice Fried found that the evidence showed that the petitioner's attorney was licensed during the petitioner's arraignment and subsequent court proceedings. (Supreme Court Order at 2.) Justice Fried also found that, because the petitioner pleaded guilty, he could not claim a Brady violation. (Supreme Court Order at 3.) Justice Fried also found that the petitioner's own admission of guilt, "completely belied" his claim of innocence, and that the McGregory affidavit, "defie[d] credulity." (Supreme Court Order at 3, 5.)
The petitioner then sought leave to appeal to the Appellate Division on the same grounds raised in his original CPL § 440.10 motion. (La Ferlita Decl. Ex. L.) The application was denied on April 5, 2005. (La Ferlita Decl. Ex. N.) The petitioner then sought leave to appeal to the New York Court of Appeals, which was denied on June 29, 2005. (La Ferlita Decl. Ex. O.)
On August 28, 2009, the petitioner filed this Petition pursuant to 28 U.S.C. § 2254, challenging his 1986 conviction on the grounds that the New York State Supreme Court erred by denying his CPL § 440.10 petition without holding a hearing. (Pet'r's Mem. of Law 1). In response, the respondent moved to dismiss the Petition, arguing that (a) the petitioner is not in custody for the crime he is seeking to challenge as required by § 2254 and 28 U.S.C. § 2241(c)(3), and (b) his petition is untimely under AEDPA's statute of limitations.
II.
Pursuant to AEDPA, a federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision, "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States" or, "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2); see Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006); see also Brown v. Woods, No. 07 civ. 10391, 2010 WL 2605744, at *2 (S.D.N.Y. June 29, 2010).
Federal district courts have jurisdiction to hear a petition for a writ of habeas corpus only when the petitioner is, "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); 28 U.S.C. § 2254(a). The Supreme Court of the United States requires, "that the habeas petitioner be `in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
Initially, the respondent, citing Maleng, asserts that the Court lacks jurisdiction because the petitioner has fully served the conviction he is seeking to challenge and is therefore not "in custody" for the purposes of §§ 2241(c)(3) and 2254(a).
The parties agree that the petitioner completed his sentence pursuant to the challenged 1986 conviction on October 2, 1990. The petitioner argues, however, that his April, 1990 conviction for which the petitioner is currently serving a sentence of thirty-five years to life imprisonment was imposed to run consecutively to the sentence for his challenged 1986 conviction. The petitioner cites N.Y. Penal law § 70.25(2-a) (effective until Sept. 1, 2009) which provides for certain mandatory consecutive sentences. The respondent never disputes that the sentence for the April, 1990 conviction was imposed as a consecutive sentence to the undischarged term of the challenged 1986 conviction, but relies on the fact that the term of the petitioner's 1986 conviction expired on October 2, 1990. The respondent argues that the petitioner cannot be in custody for a conviction where the sentence has expired.
The respondent's argument is inconsistent with Garlotte v. Fordice, 515 U.S. 39 (1995). In Garlotte, the Supreme Court held that for the purposes of a habeas petition under § 2254, "a prisoner serving consecutive sentences is `in custody' under any one of them," even if the challenged sentence has been fully served. Garlotte, 515 U.S. at 45-46 (quoting Peyton v. Rowe, 391 U.S. 54, 67 (1968)). Unlike the petitioner here, the petitioner in Garlotte received his consecutive sentences on the same day, and in connection with the same events. Garlotte, 515 U.S. at 41. However, that distinction is irrelevant to Garlotte's holding. See Smalls v. Batista, 22 F. Supp. 2d 230, 233 (S.D.N.Y. 1998), aff'd, 191 F.3d 272 (2d Cir. 1999); see also DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir. 2005) (Garlotte not limited to sentences imposed on the same day); Foster v. Booher, 296 F.3d 947, 949-50 (10th Cir. 2002) (same). Like this case,Batista involved a petitioner attempting to challenge an expired sentence while serving a separately imposed, and unrelated, consecutive sentence. Smalls 22 F. Supp. 2d at 232. The respondent in that case argued that because the petitioner did not receive his consecutive sentences on the same day, or in connection with the same events, Garlotte was inapplicable. Id at 233. Judge Sweet noted in his opinion, however, that "nowhere does the Garlotte . . . Court give any indication that the fact that the sentences were imposed on the same day, or resulted from the same events, was a factor, or proved dispositive, in [its] decision[.]" Id. Therefore, a prisoner serving consecutive sentences is `in custody' for the purposes of § 2254 even if the challenged sentence is fully served. See Id. at 233-34.
Therefore, assuming for the purposes of this motion that the petitioner is in fact serving a sentence that is consecutive to the sentence imposed for the conviction he is challenging, the petitioner is sufficiently in custody for purposes of challenging his 1986 conviction under § 2254(a).
IV.
The respondent next argues that the Petition is time-barred under AEDPA. AEDPA imposes a one-year statute of limitations on habeas corpus petitions, effective generally 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." 28 U.S.C. § 2244(d)(1)(a). A petitioner whose judgment of conviction became final prior to April 24, 1996, the effective date of the enactment of AEDPA, was given a one-year grace period in which to file. Hence, petitions are not barred by the one-year limitation if filed on or before April 24, 1997. Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998); see also Carbone v. Cunningham, No. 06 Civ. 5710, 2007 WL 4205821, at *2 (S.D.N.Y. Nov. 28, 2007).
The petitioner's grand larceny conviction was entered on January 24, 1986, and the petitioner did not directly appeal the conviction. Because this conviction became final prior to the enactment of AEDPA, the petitioner had until April 24, 1997, to file a timely petition. The Petition was filed on August 28, 2009. Therefore, the Petition is more than twelve years past the deadline and is untimely.
The petitioner does not rely on § 2244(d)(1)(D), which allows the one-year statute of limitations to begin on "the date on which the factual predicate of the claim . . . presented could have been discovered through the exercise of due diligence." Here, even if petitioner could not have known about McGregory's statement until receiving McGregory's affidavit in April 2003, the petitioner would have had to file his petition by April 2004, more than five years before the petitioner did so. Moreover, the one-year statute of limitations cannot be tolled under § 2244(d)(2) during the pendency of the petitioner's CPL § 440.10 motion, because the motion was filed after April 24, 1997, the expiration date of AEDPA's statute of limitations. See, e.g.,Montalvo v. Stack, No. 99 Civ. 5087, 2000 WL 718439, at *3 (S.D.N.Y. June 5, 2000) (citing Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam)) (tolling under § 2244(d)(2) is unavailable when the petitioner fails to file the state collateral review action within AEDPA's one-year statute of limitations.) Even if the Court were to toll the statute of limitations during the pendency of the petitioner's CPL § 440.10 motion, and to begin the one-year limitation on the date of the petitioner's receipt of McGregory's affidavit, the Petition would still be untimely. The petitioner waited over four years after the denial of his CPL § 440.10 motion before bringing his current petition. See McGinnis, 208 F.3d at 17.
In "extraordinary circumstances," the court may excuse an otherwise time-barred petition under the doctrine of equitable tolling. See Dillon v. Conway, No. 08-4030-pr., 2011 WL 1548955, at *3 (2d Cir. Apr. 26, 2011) (citing Holland v. Florida, 130 S.Ct. 2549, 2560-62 (2010)) (equitable tolling under AEDPA is permissible under "extraordinary circumstances."). In order to qualify for equitable tolling, the petitioner must establish that "he has been pursuing his rights diligently, and . . . that some extraordinary circumstance stood in his way and prevented timely filing." Id. Extraordinary circumstances warranting equitable tolling have been found only in a limited range of situations involving factors beyond the control of the petitioner. See Doe v. Menefee, 391 F.3d 147, 159-60 (2d Cir. 2004) (Sotomayor, J); see also Carbone, 2007 WL 4205821 at *2.
The petitioner offers no explanation for why he failed to file a timely petition, but instead argues that his Petition should be subject to equitable tolling based on the actual innocence doctrine, explained in Schlup v. Delo, 513 U.S. 298 (1995). In "exceptional cases," the actual innocence doctrine gives petitioners a gateway to assert otherwise procedurally barred claims. House v. Bell, 547 U.S. 518, 522 (2006). In order to bring an actual innocence claim, a petitioner must offer new evidence not available at trial, such as new scientific findings or a reliable eye witness account. See Isaacs v. Smith, No. 04 Civ. 3403, 2006 WL 2884399, at *2 (S.D.N.Y. Oct. 10, 2006) (quoting House, 547 U.S. at 537). Further, the petitioner must show that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt if given the new evidence. House, 547 U.S. at 537 (citing Schlup, 513 U.S. at 327).
Although reserving the question of whether application of the actual innocence doctrine may toll AEDPA, the Second Circuit Court of Appeals has directed courts, before deciding whether the petitioner is entitled to equitable tolling on the basis of an actual innocence claim, to evaluate new evidence using theSchlup standard in order to determine if the petitioner has made a credible claim of actual innocence. See Menefee, 391 F.3d at 161. Here, the petitioner has not offered any new evidence that meets the Schlup standard for actual innocence.
In support of his innocence claim, the petitioner offers the McGregory affidavit, which states that McGregory was the sole actor in the events that led to the petitioner's conviction. (Pet'r's Ex. A ("McGregory Aff.") ¶¶ 9-11). The affidavit also states that after being arrested in connection with the grand larceny and informing police of his guilt, McGregory was released and never contacted by the police again. (McGregory Aff. ¶ 11.) Despite the fact that the petitioner and McGregory shared the same residence at the time of their arrests, (Supreme Court Order at 5), it took nearly sixteen years for McGregory to come forward with this information. (McGregory Aff.) Further, during the CPL § 440.10 proceedings, the People claimed that no such statement by McGregory existed in court or police records. (Supreme Court Order at 5). The People's assertion that no record of a statement by McGregory exists, combined with the delay in the affidavit's production, cast serious doubt on the credibility of the petitioner's new evidence. Moreover, as rightly noted by Justice Fried, the petitioner's new claim of innocence is directly contradicted by the petitioner's detailed sworn admission of guilt during his 1986 guilty plea allocution, and the petitioner offers no explanation for his original guilty plea in light of his new innocence claim. Accordingly, the petitioner has failed to show that no reasonable juror would find him guilty beyond a reasonable doubt in light of McGregory's affidavit. Therefore, because the petitioner has failed meet the actual innocence standard set out in Schlup and because he has offered no defense for his delay in filing this Petition, he is not entitled to equitable tolling of the one-year statute of limitations imposed by AEDPA. The petition is therefore time-barred.
Conclusion
For the foregoing reasons, the respondent's Motion to dismiss the petitioner's Petition for a writ of habeas corpus is granted. Accordingly, the Petition is dismissed.The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) because the petitioner has failed to make a substantial showing of the denial of a constitutional right. The Clerk is directed to enter judgment in favor of the respondent, to close all pending motions, and to close this case.