Opinion
21-CV-9619 (KPF) (JW)
01-06-2023
JEFFREY WILSON, Plaintiff, v. JOHN/JANE DOE, Defendant.
REPORT & RECOMMENDATION
Jennifer E. Willis, United States Magistrate Judge
To the Honorable Katherine Polk Failla, District Judge:
On November 19, 2021, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1 (“Petition”). On March 4, 2022, Respondent filed a Motion to Dismiss on the grounds that the Petition is time-barred. Dkt. No. 12 (“Motion” or “Mot.”). Included with the Motion was a Declaration in Support of Respondent's Motion to Dismiss (“Declaration” or “Decl.”). Petitioner filed his Opposition to the Motion to Dismiss on March 18, 2022 (“Opposition” or “Opp.”). Respondent filed their Reply Affidavit on May 13, 2022 (“Reply”). The Motion was referred to Judge Willis for a Report and Recommendation on March 16, 2022. Dkt. No. 13. This Report follows.
BACKGROUND
On August 1, 2012, Petitioner was convicted of Robbery in the First Degree as well as Assault in the First Degree. See Petition at 27. Petitioner's trial was presided over by Judge Marcus of the Supreme Court, Bronx County. Id. Shortly thereafter, Judge Marcus recused himself from presiding over Petitioner's sentencing, which was then handled by Judge Newman of the Supreme Court, Bronx County. Id. Petitioner was subsequently sentenced to a term of imprisonment of seventeen years, and five years of post-release supervision. Id. Subsequently, Petitioner filed several motions to vacate his judgment under various legal theories:
• On November 19, 2013, Petitioner moved to vacate his judgment pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 and for dismissal of the indictment pursuant to CPL § 210.40. Petition at 33. On August 7, 2014, the motion was denied. Decl. at ¶ 7. On May 5, 2015, the Appellate Division, First Department denied Petitioner's application for leave to appeal. People v. Wilson, 2015 Slip Op. 72160(U) (1st Dept. May 5, 2015).
• Petitioner directly appealed his conviction and on April 28, 2016, the Appellate Division, First Department denied this appeal. People v. Wilson, 138 A.D. 637, 637 (1st Dept. 2016). On August 10, 2016, the Court of Appeals denied Petitioner's application for leave to appeal the Appellate Division, First Department's affirmance. People v. Wilson, 28 N.Y.3d 939, 939 (2016). Petitioner's conviction then became final on November 8, 2016. Decl. at ¶ 11.
• On January 12, 2017, Petitioner filed a writ of error coram nobis with the Appellate Division, First Department alleging ineffective assistance of his appellate counsel. Petition at 82. On May 18, 2017, the Appellate Division, First Department denied this application. People v. Wilson, 2017 NY Slip Op. 74211(U) (May 18, 2017); see also Petition at 126.
• On April 21, 2017, Petitioner supplemented his coram nobis application, Petition at 107; as these papers were received after the May 18, 2017 decision was handed down, the Appellate Division, First Department converted these papers into a second coram nobis application. On August 1, 2017, this application was denied. People v. Wilson, 2017 NY Slip Op. 81351(U) (1st Dept. Aug. 1, 2017); see also Petition at 127. On August 15 and 28, 2017, Petitioner moved for leave to appeal these denials. Petition at 115; 124. On October 11, 2017, the Court of Appeals denied Petitioner's applications for leave to appeal both of the Appellate Division's denials of the coram nobis writs. People v. Wilson, 30 N.Y.3d 984, 984 (2017); People v. Wilson, 30 N.Y.3d 984, 984 (2017).
• Petitioner alleges that on August 15, 2017, he filed a motion pursuant to New York Civil Practice Law and Rules (“CPLR”) § 5015 that was received by the Bronx County Court, but never filed. Petition at 153. Petitioner submitted a copy of the report that was sworn before a notary on March 11,
2018, but is dated March 11, 2019. Petition at 159. The affidavit of service bears the same two dates. Petition at 160.
• On October 30, 2017, Petitioner moved to vacate his judgment of conviction pursuant to CPL § 440.10 in Supreme Court, Bronx County. Petition at 130. This motion was entered as received by the Court on May 23, 2018. Petition at 19. On August 31, 2018, this motion was denied. Petition at 21. On September 12, 2018, Petitioner moved for leave to appeal the decision of the Supreme Court. Petition at 140. On December 6, 2018, the Appellate Division, First Department denied Petitioner's application for leave to appeal the denial of this second CPL § 440.10 motion. People v. Wilson, 2018 NY Slip Op. 90111(U) (Dec. 6, 2018). On December 18, 2018, Petitioner filed for leave to appeal the Appellate Division's denial. Petition at 148. Leave to appeal was denied on February 11, 2019. People v. Wilson, 32 N.Y.3d 1211 (2019). Reconsideration of the denial was denied on April 25, 2019. People v. Wilson, 33 N.Y.3d 982 (2019).
• On or about August 18, 2020, Petitioner submitted to the Appellate Division, Third Department a petition for writ of habeas corpus. On November 12, 2020, this petition was denied. Decision and Order on Motion, People etc. ex rel. Jeffrey Wilson v. M. Rockwood, etc. (3d Dept. Nov. 12, 2020) (Decl. at Ex. 12). On December 7, 2020, Petitioner filed for leave to appeal the Appellate Division's denial. Petition at 242. On March 25, 2021, Petitioner's application for leave to appeal the Appellate Division, Third Department's was denied. People etc. ex rel. Jeffrey Wilson v. M. Rockwood, etc., 36 N.Y.3d 908, 908 (2021); Petition at 275. On March 31, 2021, Petitioner requested reconsideration of that denial. Petition at 270. On September 9, 2021, reconsideration of that decision was denied. People etc. ex rel. Wilson v. M. Rockwood etc., 37 N.Y.3d 1005, 1005 (2021).
• On November 18, 2020, Petitioner filed in Supreme Court, Bronx County, seeking to vacate his judgment of conviction pursuant to CPL § 440.10. Petition at 28. On September 29, 2021, this third motion pursuant to CPL § 440.10 was denied. Id. On February 28, 2022, Notice of Entry was served. Decl. at ¶ 23.
On November 19, 2021, Petitioner filed this Petition in the Southern District of New York.
LEGAL STANDARD
Motions to dismiss a habeas petition are subject to the same standards as any civil matter faced with a Rule 12(b)(6) motion to dismiss. See Purdy v. Bennett, 214 F.Supp.2d 348, 352-53 (S.D.N.Y. 2002). Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of an action for “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss under FRCP 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When determining a motion pursuant to Rule 12(b)(6), all facts alleged in the complaint are assumed to be true, and all reasonable inferences are drawn in the plaintiff's favor. See Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655 F.3d 136, 141 (2d Cir. 2011). However, the Court is “not required to credit conclusory allegations or legal conclusions couched as factual... allegations.” Inspired Capital, LLC v. Conde Nast, 803 Fed. App'x 436, 439 (2d Cir. 2020) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). “It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotations omitted).
The Petition is subject to the statute of limitations established under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d). AEDPA states as follows that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The statute further defines from when the limitation period runs as the latest of:
(A) “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D)“the date on which the factual predicate of the claim of claims presented could have been discovered through the exercise of due diligence.”28 U.S.C. §§ 2244(d)(1)(A)-(D). This statute of limitations is tolled during the adjudication of any “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment.” 28 U.S.C. § 2244(d)(2).
DISCUSSION
Facially, the petition is time-barred. Each of Petitioner's successive habeas actions tolled the limitations period. See, e.g., Collins v. Ercole, 667 F.3d 247, 250 (2d Cir. 2012) (noting that applications under CPL § 440.10 toll the AEDPA limitations period). However, the periods of time between those petitions, which count towards the limitations period, exceed one year. For example, the denial of Petitioner's October 2017 petition became final on April 25, 2019. His next petition was filed on August 18, 2020. That period alone exceeds one year. The other gaps between Petitioner's motions only add to the time that elapsed, even assuming that every one of Petitioner's motions tolled the limitations period.
Petitioner alleges that there existed an impediment to him filing an application in violation of the Constitution. Namely, Petitioner alleges that “the Bronx County Clerk Office has continually created an impediment in accessing the court via failure to file and timely file pro se motions.” Petition at ¶ 3. The sole specific instance Petitioner points to concerns his motion of November 1, 2017, which was not filed until May of 2018. Id. at 8. However, this does not change the calculation of the tolling period. Even if the Court considers that action tolled from November 1, 2017, which would have been the start date for that action had there been no impediment, the one-year statute of limitations has still been reached and exceeded. While Petitioner alleges that this was a persistent problem, and a pro se petition is read as raising the strongest argument suggested, this Court cannot assume that the same delays occurred on every occasion without particularized allegations and facts.
Petitioner also raises concerns about the judge who presided over several of his post-conviction petitions in the state court, arguing that because he had recused himself from Petitioner's sentencing, he lacked the proper authority to preside over those later proceedings. Petition at ¶ 12. The explanation provided in Justice Marcus decision satisfies this Court. See Petition at 27, fn. 1 (“I had recused myself from the defendant's sentencing in an abundance of caution that a letter the defendant had sent to me before the scheduled date for sentence might create an appearance of bias, although not actual bias. That concern no longer applied when, six years later, I was assigned the defendant's second motion, and so I did not again recuse myself.”); see also People v. Alomar, 93 N.Y.2d 239, 246 (1999) (“Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion.”). Judges have broad discretion regarding recusal in the absence of a business interest or consanguinity. See, e.g., Shields v. Carbone, 99 A.D.3d 1100, 1102 (3d Dept. 2012) (“Absent legal disqualification.. .a judge may determine for himself or herself whether recusal is warranted, and a decision in that regard will only be overturned if there [were] an abuse of discretion.”); Matter of Yonkers Firefighters, Local 628, Intl. Assn. of Firefighters, AFL-CIO v. City of Yonkers, 175 A.D.3d 695, 696-97 (2d Dept. 2019) (“Absent legal disqualification.the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and the personal conscience of the court.” (internal quotations omitted).
Finally, Petitioner states that equitable tolling of the limitations period is appropriate. Petition at ¶ 4. Petitioner cites to Holland v. Florida, 560 U.S. 631 (2010) in support of his argument. Petitioner is correct that Holland establishes that AEDPA's timeliness provision is subject to equitable tolling. Id. at 634. However, Holland also notes that “garden variety” neglect is not subject to equitable tolling. Id. at 651 (citing Irwin v. Dep't of Veteran Affairs, 498 U.S. 89, 96 (1990) (noting that “Federal courts have typically extended equitable relief only sparingly). Examples of situations warranting equitable tolling include “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing a filing deadline to pass.” Irwin, 498 U.S. at 96. Here, Petitioner simply failed to file a Federal habeas petition within the limitation period. As such, equitable tolling is not appropriate in this case.
RECOMMENDATION
I recommend that the motion to dismiss be GRANTED, as the Petition is not timely under 28 U.S.C. § 2244(d).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Failla. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.