Opinion
20 Civ. 4621 (VB)(JCM)
05-26-2023
RICARDO QUINONES, Petitioner, v. WILLIAM LEE, Respondent.
Honorable Vincent L. Briccetti, United States District Judge
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
Petitioner Ricardo Quinones (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”) on June 1, 2020. (Docket No. 1). On September 1, 2020, the Petition was dismissed without prejudice because Petitioner failed to comply with an order directing him to either pay the filing fee or file an application for leave to proceed in forma pauperis. (Docket No. 4). Petitioner paid the filing fee on September 16, 2019, and thereafter appraised the court of the status of his case on September 23, 2020 and May 25, 2022. (Docket Nos. 5, 6). On June 9, 2022, the dismissal order was vacated, Petitioner's action was reopened, and the case was reassigned to the Honorable Laura Swain. (Docket No. 7). By Order dated June 27, 2022, Judge Swain directed Petitioner to file a declaration showing cause why his Petition should not be denied as time barred. (Docket No. 8). On July 27, 2022, Petitioner filed a declaration (the “Declaration”) in response to Judge Swain's Order. (Docket No. 9). In his Declaration, Petitioner asked the Court for leave to file additional documents. (Id.). Respondent consented to this request and Petitioner filed a document entitled “Reply to Acceptance of Petitioner's offer to Produce Record for AAG McIver” on January 13, 2023, (Docket No. 25), to which he attached his indictment, plea, sentencing minutes, and documents from his New York Criminal Procedure Law (“N.Y.C.P.L.”) § 440.10 proceeding, (Docket Nos. 25-1-25-6).
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the Houston “prison mailbox rule”). Petitioner certified that he delivered his Petition to prison authorities for mailing on June 1, 2020. (Docket No. 1 at 75).
This matter was reassigned to the Honorable Vincent L. Briccetti on September 2, 2022. Judge Briccetti referred this case to the undersigned to determine whether the Petition was time barred. (Docket No. 11).
On September 2, 2022, the Honorable Vincent L. Briccetti determined that this matter should not be summarily dismissed and ordered Respondent to, inter alia, respond to the Petition. (Docket No. 12). Respondent moved to dismiss the Petition on February 22, 2023, (Docket No. 28), which was accompanied by a memorandum of law, (Docket No. 28-2) (“Resp't Br.”). Petitioner filed his opposition to Respondent's motion to dismiss on May 3, 2023, (Docket No. 40) (“Pet'r Br.”), and Respondent replied on May 18, 2023.
Respondent also requested that, if the Court denies Respondent's motion, it be granted an extension of 30 days to answer the Petition. (Resp't Br. at 6). Because the Court finds that the Petition is time barred, this request is denied as moot.
I. BACKGROUND
The Court assumes familiarity with the record and includes only those facts necessary to resolve the instant dispute. Petitioner pleaded guilty to robbing a McDonalds in Thompson, New York at approximately 3:00 a.m. on May 21, 2009 with the assistance of his daughter, Symone Quinones (“Symone”), and her boyfriend, James Eason (“Eason”). (Id. at 24-25). Symone signed an affidavit affirming that she drove her mother, Kimberly Gallagher's (“Gallagher”), car to McDonalds because her “poppy Ricardo and ... boyfriend James [Eason] went to . rob it.” (Docket No. 28-4 at 17). She further affirmed that her “dad said it would take three minutes or less so to stay in the area.” (Docket No. 28-5 at 1). Eason, who had worked at the McDonalds in Thompson and was familiar with its layout, affirmed that “[a] couple days prior to 05/21/2009 . Ric asked [] if I'd go along with him to rob McDonalds” and that he “agreed.” (Id. at 22). Eason further affirmed that Symone drove he and Petitioner to McDonalds at approximately 2:45 a.m., and that the pair entered the store and headed toward the safe, which was in the night manager's office. (Id.). Eason “grabbed the money,” and he and Petitioner “ran out the back door,” where they were picked up by Symone. (Id.). Symone affirmed that “[t]he next morning . [Petitioner] split the money and it was less then [sic] a thousand dollars.” (Id.). Petitioner additionally pleaded guilty to robbing a Chase Bank in Monticello, New York on July 11, 2009, at approximately 2:00 p.m. (Docket No. 28-5 at 19). Petitioner admitted to being armed with a loaded “Baretta” firearm and confirmed that after robbing the bank, he fled with the money and firearm. (Id. at 20). The firearm was recovered from Gallagher's car. (Id. at 20-21).
On December 15, 2009, Petitioner pleaded guilty to two counts of Robbery in the First Degree and one count of Criminal Possession of a Weapon in the Second Degree in exchange for a determinate sentence of twenty-five years imprisonment with five years of post-release supervision. (Docket No. 28-6 at 4-5). Petitioner was sentenced on February 9, 2010. (Docket No. 28-5 at 7). At his sentencing, Petitioner stated: “I wish to apologize to this county for what I done.. I've disrespected your county.... there is really no excuse for what I have done.” (Id. at 6). Petitioner did not appeal the judgment against him. (Petition at 2).
In mid-2016, Petitioner sent several Freedom of Information Law (“FOIL”) requests to state entities. Petitioner sent a FOIL request to the Sullivan County District Attorney's Office (“SCDAO”) on May 5, 2016, a request to the Sullivan County Court (“SCC”) on July 29, 2016, and a request to the New York State Troopers (“NYST”) on August 16, 2016. (Docket No. 28-6 at 124-29; Docket No. 25-4 at 16-26). Petitioner also received documents from the Sullivan County Sheriff's Office (“SCSO”), however, the record does not include Petitioner's FOIL request to the SCSO. The SCDAO responded to Petitioner on August 25, 2016, informing Petitioner that it needed more time to produce documents and anticipated a response on November 10, 2017. (Docket No. 28-6 at 64). The SCC responded to Petitioner in early August 2016, instructing him to request transcripts by contracting the court stenographer. (Id. at 58). The NYST provided Petitioner with documents relating to its investigation of the robberies on July 25, 2017. (Docket No. 25-3 at 66). The documents produced by the NYST included investigative records from the SCSO. (See id.).
The SCDAO first responded to Petitioner on May 17, 2016, addressing each of Petitioner's document requests and informing Petitioner that it would produce documents after receiving payment. (Docket No. 28-6 at 61-62). Petitioner paid the fee on August 15, 2016. (Id. at 63). The SCDAO confirmed receipt of the payment by letter on August 30, 2017. (Id.).
On July 17, 2018, Petitioner collaterally attacked his conviction pursuant to C.P.L. § 440.10 (“440.10”). (Docket No. 25-1 at 55). Petitioner's 440.10 motion was stayed pending a hearing on the merits on September 10, 2018, (Docket No. 25-4 at 53), which was held on October 2, 2018. (Petition at 72). The motion was denied on June 27, 2019. (Docket No. 25-6 at 16-23). Petitioner sought leave to appeal to the Supreme Court, Appellate Division, Third Department (“Appellate Division”), which was denied on January 9, 2020. (SR 268; 277).
II. LEGAL STANDARD
The Respondent's motion to dismiss is governed by The Antiterrorism and Effective Death Penalty Act (“AEDPA”), and the Federal Rules of Civil Procedure (“Rules”). Adams v. Greiner, 272 F.Supp.2d 269, 271 (S.D.N.Y. 2003).
A. Motion to Dismiss
The Federal Rules of Civil Procedure apply to habeas proceedings if they are not inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”). Adams, 272 F.Supp.2d at 571 (quoting Habeas Rule 11 (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.”)). Considering the wide discretion afforded to district judges in habeas proceedings, motions to dismiss habeas petitions pursuant to Federal Rule of Civil Procedure 12(b)(6) are not inconsistent with the Habeas Rules. See, e.g., Mears v. Graham, No. 13-cv-8737 (AJN), 2014 WL 4060022, at *4 (S.D.N.Y. Aug. 14, 2014) (“courts interpreting the current [Habeas] Rules have regularly permitted motions to dismiss”).
Pursuant to Rule 12(b)(6), the complainant must provide “enough facts to state a claim to relief that is plausible on its face” to survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Likewise, the Habeas Rules provide that a petition should be dismissed “[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief from the district court ...” Habeas Rule 4. Furthermore, pro se submissions are construed “liberally” and interpreted to raise the strongest arguments that they suggest. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
B. AEDPA Statute of Limitations
AEDPA establishes a 1-year statute of limitations for federal habeas petitions. See 28 U.S.C. § 2255(f). “Courts calculate the relevant limitations period from the latest of four benchmark dates: (1) the date on which the judgment of conviction becomes final; (2) the date a government-created impediment to making such a motion is removed; (3) the date on which the right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) the date on which the facts supporting the claim(s) could have been discovered through the exercise of due diligence.” Gil v. U.S., No. 10 Civ. 8907(CM), 2010 WL 5298848, at *1 (S.D.N.Y. Dec. 21, 2010) (citing 28 U.S.C. § 2255).
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.”).
C. Statutory Tolling
28 U.S.C. § 2244(d)(2) provides that “[t]he time during which a properly filed application for State post-conviction or collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward” the limitations period. For instance, a properly filed 440.10 motion tolls AEDPA's limitations period. See Pratt v. Greiner, 306 F.3d 1190, 1191 (2d Cir. 2002). For purposes of AEDPA, “a state court petition ‘is “pending” from the time it is first filed until [the time it is] 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) (quoting Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999)). Therefore, a 440.10 motion is pending “from the time it is filed through the time in which the petitioner could file an application for a certificate for leave to appeal the Appellate Division's denial of the motion.” Id.
D. Equitable Tolling
“[Section] 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (AEDPA “does not set forth ‘an inflexible rule requiring dismissal whenever' its ‘clock has run.'” (quoting Day v. McDonough, 547 U.S. 198, 205 (2006)). Generally, “a litigant seeking equitable tolling must establish two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented a timely filing.'” Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010) (quoting Lawrence v. Fla., 549 U.S. 327, 336 (2007)). To establish the first element, the petitioner must show that he acted “with reasonable diligence throughout the period he seeks to toll.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). The second element “focuses on the severity of the obstacle that prevented the petitioner from filing within the one-year period.” Barrientos v. Lee, No. 14-CV-3207(LTS)(JCF), 2015 WL 3767238, at *9 (S.D.N.Y. June 17, 2015). The bar to deem circumstances sufficiently “extraordinary” to warrant equitable relief is “high.” Id. “Sufficiently ‘severe' obstacles have included extraordinary attorney misconduct, the petitioner's mental illness or hospitalization, prolonged delay by a state court in sending notice of a ruling, and intentional obstruction by prison officials of an inmate's ability to file his petition.” Id. (internal citations omitted). The Petitioner must also “demonstrate[] a causal relationship between the extraordinary circumstances . 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].” Bolarinwa, 593 F.3d at 231 (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). The Second Circuit is clear that equitable tolling will only apply in “rare and exceptional circumstances.” Id.
E. Equitable “Exception” to the Statute of Limitations
Furthermore, the limitations period can be overcome via an “equitable exception” where the petitioner makes “a credible and compelling showing of actual innocence.” See Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012)). To be credible, an actual innocence claim “requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995). To be compelling, “petitioner must demonstrate that ‘more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt-or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” Rivas, 687 F.3d at 541 (quoting House v. Bell, 547 U.S. 518, 538 (2006)). “Credible claims of actual innocence are ‘extremely rare.'” Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (quoting Schlup, 513 U.S. at 321).
III. DISCUSSION
The merits of Petitioner's claim are not at issue in the present motion. The Court need only address whether the Petition was timely filed. For the following reasons, the Court finds that the Petition was untimely, that neither statutory nor equitable tolling apply, and that Petitioner has not demonstrated “actual innocence” entitling him to the equitable exception to AEDPA's limitations period. Consequently, the Court respectfully recommends that Respondent's motion to dismiss be granted.
A. The Petition is Untimely
Petitioner argues that the limitations period should be calculated from the date on which the factual predicate of his claims could have been discovered through the exercise of due diligence pursuant to 28 U.S.C. § 2244(d)(1)(D). Respondent argues that the limitations period should be calculated from the date on which the judgment became final pursuant to 28 U.S.C. § 2244(d)(1)(A). The Court agrees with Respondent.
Petitioner complains that the State agencies' responses to his FOIL requests were delayed. To the extent this can be construed as an argument that the statute of limitations should begin to run on “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 ..,” such an argument fails. § 2244(d)(1)(B) (emphasis added). Even assuming, arguendo, that responses to Petitioner's FOIL requests were delayed, “[a] state's delay in responding to a FOIL request does not constitute an impediment in violation of the Constitution or federal law that prevents the filing a timely habeas petition.” Gould v. West, No. 05 CIV. 602(RMB)(FM), 2007 WL 2323108, at *4 (S.D.N.Y. Aug. 15, 2007), report and recommendation adopted, 2007 WL 2609898 (S.D.N.Y. Sept. 7, 2007) (emphasis in original); accord Castillo v. Artuz, No. 99 CV 5801 (RR), 2000 WL 307373, at *4 (E.D.N.Y. Feb. 15, 2000) (“The disclosure obligations of FOIL ... are not mandated by federal law. They are entirely the creation of state law.”).
1. Petitioner Cannot Avail Himself of the Later Start Date Provided by § 2244(d)(1)(D)
Petitioner argues that the statute of limitations should run from the date on which he discovered “new evidence” supporting his claim, pursuant to 28 U.S.C. § 2244(d)(1)(D). (Pet'r Br. at 23). Section 2244(d)(1)(D) provides that the AEDPA limitations period may run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” The Second Circuit defines “factual predicate” as “[t]he facts vital to a habeas claim,” i.e., “those without which the claims would necessarily be dismissed under [Habeas] Rule 4” or Federal Rule of Civil Procedure 12(b)(6). Rivas, 687 F.3d at 535. “[N]ew information that is discovered that merely supports or strengthens a claim” is not “a ‘factual predicate' for purposes of triggering the statute of limitations under § 2244(d)(1)(D).” Id.
The timeliness of Petitioner's filing depends on Petitioner's “‘exercise of due diligence' in discovering the factual predicate for his claim.” Shabazz v. Filion, 402 Fed. App'x 629, 630 (2d Cir. 2010) (quoting § 2244(d)(1)(D)). Petitioner carries the burden of demonstrating that he exercised due diligence. See id. Moreover, the statute “begins to run from the date when the facts supporting the claim or claims presented could have been discovered ‘through the exercise of due diligence . regardless of whether petitioner actually discovers the relevant facts at a later date.'” Adams, 272 F.Supp. at 273-74 (emphasis added) (quoting Wims v. U.S., 225 F.3d 186, 188 (2d Cir. 2000)). Put differently, “[w]hen evidence is newly obtained, but could have been obtained earlier, the date when the evidence was actually obtained has no effect on the AEDPA limitation period.” Duamutef v. Mazzuca, No. 01-CIV-2553(WHP)(GWG), 2002 WL 413812, at *9 (S.D.N.Y. Mar. 15, 2002).
The Second Circuit provided directions for calculating timeliness for purposes of 28 U.S.C. § 2244(d)(1)(D) in Rivas, which instructs habeas courts to calculate how much time elapsed between the filing of the petition and, applicable here, the date on which discretionary review of petitioner's 440.10 motion was denied. See 687 F.3d at 534. The court then subtracts the elapsed time from the one-year limitations period. See id. Petitioner's motion for leave to appeal the denial of his 440.10 motion was denied on January 9, 2020, (Petition at 73), and he filed his habeas Petition on June 1, 2020, (id. at 75). Thus, 144 days passed between the Appellate Division's denial of Petitioner's motion for leave to appeal and his filing the Petition, leaving 221 days remaining in the limitations period. See id. Following Rivas, the Court subtracts the remaining 221 days from the date on which Petitioner filed his 440.10 motion, July 17, 2018, to arrive at December 8, 2017. See id. Accordingly, Petitioner must show that the “newly discovered” evidence obtained through his FOIL requests could not have been discovered prior to December 8, 2017. See id.
Petitioner centrally argues that § 2244(d)(1)(D) should apply because he obtained the “investigation file” from the SCSO through FOIL requests, which contained “pertinent information” undermining his conviction. (Pet'r Br. at 6). Petitioner cannot avail himself of the limitations period in § 2244(d)(1)(D) for several reasons. First, the information obtained from the FOIL requests is not “newly discovered,” as it could have been obtained prior to December 8, 2017. Second, Petitioner did not make diligent efforts to obtain this information. Third, the evidence that Petitioner seeks to introduce does not form the “factual predicate” of any claim in the Petition.
Construing the Petition liberally, Petitioner's claims fall into three categories: (1) ineffective assistance of counsel, specifically that counsel John Janusas, Esq. (“Janusas”): (a) made “inflammatory and disturbing” statements to Petitioner; (b) failed to request a hearing and “denied” Petitioner's request to appear before a grand jury; (c) failed to properly investigate his case; (d) “t[old]” defendant to accept a plea bargain “for [his] daughter;” (e) failed to challenge the legality of the search of Petitioner's person and vehicle; (f) failed to object to portions of the indictment as jurisdictionally defective; and (g) failed to properly object to stipulations entered by the government at sentencing, (Petition at 6); (2) Due Process violations, including that: (a) Petitioner was illegally detained; (b) Petitioner was not given Miranda warnings or provided counsel upon request; (c) Petitioner's confession was coerced; (d) false documents were filed about Petitioner, and (e) Petitioner was denied the right to appear before a grand jury; (id. at 9); and (3) judicial misconduct, because the trial court failed to sufficiently develop the record to ensure that Petitioner's plea was voluntary, (id. at 11).
a. The Evidence Petitioner Obtained from His FOIL Requests Was Not “Newly Discovered”
The information Petitioner obtained from his FOIL requests was not “newly discovered” because Petitioner could have known of the facts contained in the documents he received well in advance of December 8, 2017. It is immaterial whether Petitioner understood the legal significance of such facts at the time he could have discovered them; the operative question is whether Petitioner could have ascertained the information at issue. Robinson v. Artus, No. 9:06-CV-0496, 2007 WL 119455, at *2 (N.D.N.Y. Jan. 9, 2007) (quoting Hector v. Greiner, No. 99 CV 7863 (FB), 2000 WL 1240010, at *1 (E.D.N.Y. Aug. 29, 2000) (“[n]ewly discovered evidence is, by definition, incapable of discovery through counsel's due diligence before or during trial.” (emphasis added))).
Petitioner received, in response to his requests, court transcripts from the SCC and documents from the SCSO's and NYST's investigation of the crimes charged, including a narrative report, photo array, and similar documents. (Pet'r Br. at 6, 10-16). Petitioner relies chiefly on the narrative report from the SCSO to argue that there were “[i]nconsistencies” in the investigation of both robberies for which he was convicted, which Petitioner alleges constitutes newly discovered evidence. (See id.). Because Petitioner was personally involved in all the events and proceedings underlying each claim raised in the Petition, Petitioner “could have” known of the facts in the foregoing documents before December 8, 2017.
First, each of Petitioner's ineffective assistance of counsel claims involve actions or omissions by counsel that occurred during pre-trial proceedings or at Petitioner's sentencing, for which Petitioner was present, and which took place in 2009 or 2010. See Rivas, 687 F.3d at 532, 537 (ineffective assistance of counsel claims arose “well in advance” of habeas petition where “[a]ll of the[] allegations concern[ed] errors made prior to or during [petitioner's] trial”). Counsel's alleged failure to investigate, failure to request Petitioner's appearance before a grand jury, failure to object to the indictment, failure to move to exclude the results of an allegedly illegal search, failure to object to stipulations entered at Petitioner's sentencing, and comments made to Petitioner, all could have been known to Petitioner before he pleaded guilty to the robberies. See id. Moreover, Petitioner participated in all court proceedings. (See, e.g., Docket No. 28-5 at 8-9 (Petitioner answering the court's questions at his plea); Docket No. 28-6 (Petitioner's comments at his sentencing)); cf Spurgeon v. Lee, No. 11-CV-00600 (KAM), 2011 WL 1303315, at *2 (E.D.N.Y. Mar. 31, 2011) (petitioner failed to establish “good cause” for failure to exhaust where “petitioner's ineffective assistance claim is concededly premised on trial counsel's alleged failure to object, to request a specific jury charge, ... and for allegedly waiving petitioner's right to testify at trial, all of which have been known to petitioner since his trial.”) (internal citation omitted) (emphasis added)).
Regarding Petitioner's claim that counsel failed to request his testimony before the grand jury, the record shows that Petitioner knew that counsel did not request his appearance as early as December 2009. (See Docket No. 28-6 at 23). Petitioner swore in the affidavit in support of his 440.10 motion that “[i]n the beginning of December 2009,” while awaiting trial in county jail, he was shown a newspaper article by a deputy sheriff entitled “Ricardo Quinones Indicted,” and was told by the sheriff: “you better call someone.” (Id.). As such, Petitioner cannot credibly argue that he was unaware of the vital facts underlying his claim that counsel was ineffective for failing to request Petitioner's presence before the grand jury.
Second, Petitioner knew of the vital facts underlying his Due Process claims since he was the individual that was allegedly illegally detained, not properly Mirandized, not given counsel upon request, and precluded from appearing before the grand jury. See Shuckra v. Armstrong, No. 3:02-CV-583(JBA), 2003 WL 1562097, at *4 n.8 (D. Conn. Mar. 21, 2003) (“[Petitioner] was the person being interrogated, and thus obviously knew that he was not given Miranda warnings. Thus, this claim does not fall within the scope of § 2244(d)(1)(D).”). Third, the facts underlying the trial court's purported failure to ensure that Petitioner's guilty plea was voluntary could have been known to Petitioner at the time of his guilty plea. Petitioner was present at, and participated in, his plea allocution. (See Docket No. 28-5 at 8-9).
b. Petitioner Did Not Act Diligently in Seeking the Allegedly “Newly Discovered” Evidence
Petitioner cannot avail himself of the later start date set forth in § 2244(d)(1)(D) because he did not act diligently in seeking the discovery he now claims provides the factual predicate for his claims. Petitioner requested documents from the SCDAO on May 5, 2016, the SCC on July 29, 2016, and the NYST on August 16, 2016, over six years after his conviction became final. Petitioner does not explain why it took him over six years to pursue this information. Furthermore, even though Petitioner received responses from the SCDAO, NYST, and SCC by early 2017, he did not use these documents until July 17, 2018, when he filed his 440.10 motion. (Petition at 42). Petitioner does not explain why he waited over eighteen months to use the information he obtained, which he claims is “newly discovered evidence” that serves as the factual predicate for his habeas claims. Consequently, Petitioner has not met his burden of demonstrating that he exercised due diligence in pursuing his claims. See Shabbaz, 402 Fed.Appx. at 630; see also Chi Fai Wong v. U.S., No. 05-CV-176 (DLI), 2008 WL 4682428, at *2 (finding that petitioner did not exercise due diligence where FOIA request was “filed more than one year after Petitioner's conviction became final.”).
Petitioner does not include in his papers the date on which he requested documents from the Sullivan County Sheriff's Office. Petitioner carries the burden of establishing that he exercised due diligence. Shabbaz, 402 Fed.Appx. at 630.
c. The Information in the FOIL Requests Does Not Form the “Factual Predicate” of Any of Petitioner's Habeas Claims
Finally, even if the evidence Petitioner offers was “newly discovered” and diligently pursued, Petitioner cannot avail himself of the start date provided by § 2244(d)(1)(D) because the so-called newly discovered evidence does not form the “factual predicate” of any of his claims. Petitioner offers only his subjective conclusions drawn from the police's investigative file to support his claims. (See Pet'r Br. at 10-16). “[I]t should go without saying that ... [c]onclusions drawn from preexisting facts, even if the conclusions themselves are new, are not factual predicates for a claim.” Rivas, 687 F.3d at 535.
Accordingly, Petitioner is not entitled to use § 2244(d)(1)(D) to determine the date for calculating the limitations period.
2. The Petition is Untimely Under 28 U.S.C. § 2244(d)(1)(A)
Pursuant to 28 U.S.C. § 2244(d)(1)(A), the AEDPA limitations period begins to run 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.” New York law provides that a defendant has thirty days from the judgment of conviction to seek leave to appeal. N.Y.C.P.L. § 460.10(1)(a) (“A party seeking to appeal from a judgment . must, within thirty days after imposition of the sentence . file . a written notice of appeal ...”). Thus, Petitioner's conviction became final for purposes of 28 U.S.C. § 2244(d)(1)(A) when his “time for filing a notice of appeal from his judgment of conviction expired under C.P.L. § 460.10(1);” here, thirty days after his sentence was imposed. See Villegas v. Hunt, No. 07-CV-6552(VEB), 2008 WL 4724296, at *2 (W.D.N.Y. Oct. 24, 2008) (citing Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (“the one-year limitations period began running . when [petitioner's] time for filing a notice of appeal from his judgment of conviction expired [under] N.Y. C.P.L. § 460.10”)).
Petitioner did not take a direct appeal from the judgment against him. (Petition at 2). Therefore, the judgment against Petitioner became final on March 11, 2010, i.e., thirty days after February 9, 2010, the date of Petitioner's sentencing. See N.Y.C.P.L. § 460.10. Consequently, the statute of limitations began to run on March 11, 2010. Petitioner did not file the instant Petition until June 1, 2020. Thus, absent a showing that tolling is proper, the Petition is untimely.
B. Petitioner Is Not Entitled to Statutory Tolling
Construing Petitioner's complaint liberally, the Court will address whether Petitioner's 440.10 motion tolled the limitations period. By its terms, § 2244(d)(2) provides that a state court motion must be “pending” during the AEDPA limitations period for such a motion to toll the limitations period. Accordingly, a collateral attack cannot toll an already expired limitations period. See Diaz v. Kelly, 515 F.3d 149, 152 (2d Cir. 2008) (where petitioner's “one year statutory filing period had already expired, [petitioner's] subsequent state court attack does not toll the federal limitations period.”); see also Rodriguez v. Miller, 15 Civ. 1087 (VB) (PED), 2018 WL 4691248, at *3 (S.D.N.Y. Aug. 23, 2018) (“An application for state post-judgment relief or collateral review may toll the limitations period but does not restart it.”). Petitioner's conviction became final on March 11, 2010. Thus, the statute of limitations expired on March 11, 2011. Petitioner filed his 440.10 motion on July 17, 2018. Consequently, Petitioner's 440.10 motion was not pending during the limitations period, and therefore does not toll the limitations period. See Diaz, 515 F.3d at 152.
Furthermore, Petitioner's FOIL requests do not warrant statutory tolling. As a threshold matter, Petitioner filed his FOIL requests in 2016, approximately five years after the statute of limitations period lapsed. The FOIL requests were therefore not “pending” during the limitations period. See § 2244(d)(2). In any event, “FOIL requests are not ‘applications for state postconviction or other collateral review' under § 2244(d)(2),” and therefore, cannot act to toll the statute of limitations. Duamutef, 2002 WL 413812, at *7.
C. Petitioner Is Not Entitled to Equitable Tolling
To toll the limitations period on equitable grounds, Petitioner must show that “he has been pursuing his rights diligently” and “some extraordinary circumstance” prevented him from timely filing his Petition. See Holland, 560 U.S. at 649. Petitioner must also establish a causal connection between the extraordinary circumstance and his inability to file on time. See Baldayaque v. U.S., 338 F.3d 145, 150 (2d Cir. 2003). Petitioner argues that he is entitled to equitable tolling because his trial counsel did not file a notice of appeal from the judgment against him. (Pet'r Br. at 40).
Petitioner cannot satisfy the requirements set forth in Holland. First, Petitioner did not pursue his rights diligently. After pleading guilty to the underlying crimes in December 2009 and waiving his right to appeal, Petitioner took no action to remedy the alleged constitutional errors until May 2016, over six years after his conviction became final, when he sent a series of FOIL requests to state agencies. Thereafter, Petitioner waited another year-and-a-half, until July 2018, to bring his 440.10 motion, and then waited until June 2020 to file the instant Petition. Considering this delay, Petitioner cannot meet the “extremely high” burden necessary to toll almost eight years of the limitations period. See Cross v. McGinnis, No. 05 Civ. 504(PAC), 2006 WL 1788955, at *4 (S.D.N.Y. June 28, 2006) (“Given the seven-and-a-half years which [petitioner] seeks to toll, his burden to show that the circumstances were indeed extraordinary and that he acted with reasonable diligence throughout this period is extremely high”); accord Mateos v. West, 357 F.Supp.2d 572, 577 (E.D.N.Y. 2005) (burden on petitioner was “particularly high,” where he sought to toll 1318 days of the limitations period).
Second, Petitioner has not shown an extraordinary circumstance. Where, as here, the record does not indicate that Petitioner instructed his attorney to file an appeal, the fact that Janusas did not do so does not constitute an “extraordinary circumstance” warranting equitable relief. Cf Baldayaque, 338 F.3d at 152 (finding that equitable tolling was warranted where counsel, among other things, failed to file a habeas petition “[i]n spite of being specifically directed by his client's representatives to file a ‘2255,'” but noting that “attorney error normally will not constitute the extraordinary circumstances required to toll the AEDPA limitations period”) (emphasis in original).
The record does not indicate that Petitioner instructed Janusas to file a notice of appeal. In fact, Petitioner agreed to waive his right to appeal as a condition of his plea agreement. (Docket No. 28-7 at 12-13). The record shows that Petitioner and Janusas discussed Petitioner's waiver of appeal before, during, and after the plea allocution. (Docket No. 28-6 at 121).Furthermore, Petitioner did not inquire into the status of his appeal until October 20, 2017, seven years after his conviction became final. Finally, Petitioner raises this argument for the first time in his opposition brief, which was filed on May 3, 2023. (See generally Pet'r Br.). The Petition, (see generally Petition), and the brief in support of Petitioner's 440.10 motion, (Docket No. 25-6 at 1-5), is devoid of any mention of this argument.
Janusas testified to the following at Petitioner's 440.10 hearing: “Q. Did you discuss the waiver of trial rights and the waiver of appeal with Mr. Quinones? A. Yes.... I did that as part of the discussion of the plea at the jail and then also before the plea on December 15th and then afterwards.” (Docket No. 28-6 at 121).
Third, Petitioner has not demonstrated causation. Janusas's failure to file an appeal had no bearing on Petitioner's ability to file a habeas petition. As such, Petitioner has failed to show the requisite casual connection between the supposed extraordinary circumstance and his delay in filing the Petition. See, e.g., Tarafa v. Artus, No. 10 Civ. 3870(AJN)(HBP), 2013 WL 3789089, at *4 (S.D.N.Y. July 18, 2013) (“The failure of counsel to file an appeal does not prevent a petitioner from pursuing habeas relief,” and therefore cannot form the basis of a claim for equitable tolling).
Consequently, Petitioner is not entitled to equitable tolling. See, e.g., Morton v. Ercole, No. 08 Civ. 0252(RJS)(FM), 2009 WL 5251892, at *7 (S.D.N.Y. Dec. 31, 2009), report and recommendation adopted, 2010 WL 890036 (S.D.N.Y. Mar. 10, 2010) (“nearly seven-year delay in taking action” with regard to direct appeal was not “considered reasonable”) (collecting cases).
D. Petitioner Has Not Demonstrated “Actual Innocence”
The Supreme Court has recognized an “equitable exception” to § 2244(d)(1), which allows a petitioner to “overcome AEDPA's one-year statute of limitations” with a showing of “actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). “To invoke the exception (creating a ‘gateway' to habeas review despite expiration of the statute of limitations), a petitioner must make the same showing of actual innocence that is required to overcome a procedural bar to habeas review...” Jones v. Superintendent of Wende Corr. Facility, No. 16 Civ. 7109 (VB)(PED), 2020 WL 9048784, at *3 (S.D.N.Y. Oct. 6, 2020), report and recommendation adopted, 2021 WL 1198933 (S.D.N.Y. Mar. 30, 2021). Specifically, Petitioner must make “a credible and compelling showing of actual innocence,” Rivas, 687 F.3d at 548, by introducing “new reliable evidence,” Schlup, 513 U.S. at 324, that “more likely than not,” would preclude any reasonable juror from finding the petitioner guilty beyond a reasonable doubt, see House, 547 U.S. at 537.
Petitioner summarily asserts that he has “present[ed] a credible claim of actual innocence.” (Pet'r Br. at 21). Furthermore, Petitioner relies on the investigative records from the Chase Bank and McDonalds robberies to argue that the investigations underlying his convictions reveal “[inconsistencies” undermining his conviction. (See Pet'r Br. at 4-14). Petitioner's arguments are insufficient to establish “actual innocence.” As discussed herein, Petitioner obtained police and court records through his FOIL requests, which he analyzes and argues demonstrate his innocence. See supra, Section III.A.1. Petitioner has not proffered any evidence rising to the level of “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” See Johnson v. Capra, 16-civ-3116 (LAP), 2018 WL 1581682, at *6 (S.D.N.Y. Mar. 27, 2018) (quoting Schlup, 513 U.S. at 324) (petitioner's assessment of arrest report, officer's notes, and other documents in his investigative file did not constitute exculpatory evidence as contemplated by Schulp).
In fact, the evidence Petitioner submits as “newly discovered” undercuts Petitioner's claims. For example, a narrative police report from NYST that Petitioner attached to an April 14, 2023 letter to the Court, which Petitioner obtained through a FOIL request, states that on September 16, 2009, prior to Petitioner's guilty plea, “Quinones admitted to being the perpetrator in the Robbery of the Chase Bank” and on the same date, “Quinones . also admitted to being the third perpetrator in the robbery of the McDonalds in the Town of Thompson.” (Docket No. 37 at 8-9).
Furthermore, Petitioner's “new claim of innocence is directly contradicted by [his] detailed sworn admission of guilt during his ... guilty plea allocution.” Jones v. Smith, No. 09 Civ. 8437(JGK), 2011 WL 2693536, at *5 (S.D.N.Y. June 30, 2011). “Every court in this circuit has found that a guilty plea greatly undermines subsequent claims of actual innocence.” Allevato v. Howard, 9:21-CV-1159 (GTS), 2022 WL 2954365, at *9 (N.D.N.Y. July 26, 2022). Petitioner pleaded guilty to two counts of First-Degree Robbery and one count of Criminal Possession of a Weapon, thereby admitting under oath that he committed the acts charged in the indictment. (Docket No. 28-5 at 17-21, 23). Petitioner relayed specific details of the crimes charged, including information about the type of gun he was carrying, his daughter's role in the crime, and whether there were employees present at the McDonalds restaurant during the robbery.
The Court: What weapon [were you armed with]?
The Defendant: A baretta.
The Court: [Was your daughter] acting as the driver for you?
The Defendant: Yeah, but she had no knowledge of what I was doing at that time.
The Court: There was no one there other than the workers [at the McDonalds]?
The Defendant: No, it was closed.(Docket No. 28-5 at 20, 22, 24). In addition, at Petitioner's sentencing, Petitioner volunteered a statement, taking full responsibility for his crimes:
I wish to apologize to this county for what I done . I've disrespected your county.... [T]here is really no excuse for what I have done. I'd like to apologize to my family over here because, you know, they treated me well and I've come into their life again and disrespected the love they have given to me . that's basically it.(Docket No. 28-6 at 6). Petitioner's statements under oath at his plea allocution and sentencing “clearly contradict[]” his claim of actual innocence. See Johnson, 2018 WL 1581682, at *7. Consequently, Petitioner is not entitled to the equitable exception to the AEDPA limitations period. Therefore, the Petition is time barred.
IV. CONCLUSION
For the foregoing reasons, I respectfully recommend that Respondent's motion to dismiss be granted. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Habeas Rule 8(b), the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Vincent L. Briccetti and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).