Opinion
14 Civ. 8088 (VB)(JCM)
03-20-2017
SANTIAGO ALVAREZ, Petitioner, v. ADA PEREZ, Respondent.
REPORT AND RECOMMENDATION
To the Honorable Vincent L. Briccetti, United States District Judge:
Petitioner Santiago Alvarez ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 dated October 1, 2014 (the "Petition"). (Docket No. 1). Respondent Ada Perez ("Respondent") opposed the Petition by affidavit and memorandum of law dated May 1, 2015. (Docket Nos. 12, 13). For the reasons set forth below, I respectfully recommend that the Petition be denied.
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 original Petition to prison authorities for mailing on October 1, 2014. (Docket No. 1 at 12). Unless otherwise noted, the Court adopts Petitioner's dates for this filing and for all other filings discussed herein.
I. BACKGROUND
A. The Crime and Indictment
Petitioner's convictions arise from an incident in which he assaulted his girlfriend, Benida Morales ("Ms. Morales"). Construing the evidence in the light most favorable to the State, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
On the evening of June 9, 2009, Ms. Morales arrived at the home of her neighbor, Roseann Campos ("Ms. Campos"), located along East Main Street in Middletown, New York. (Tr. at 199, 226). Ms. Campos opened the main door to the residence, leaving the clear outer screen door closed, and spoke to Ms. Morales. (Id. at 226-227). Ms. Morales, who had an order of protection against Petitioner, told Ms. Campos that she just had a fight with Petitioner and that he had hit her. (Id. at 226). Ms. Campos and Ms. Morales then saw Petitioner walking down the street. (Id. at 227-228). Ms. Morales cursed at Petitioner in Spanish. (Id. at 228). Petitioner became angry, turned around and ran toward Ms. Campos' residence. (Id. at 229). Ms. Campos, who was home with her three children, mother and brother, told Ms. Morales to come inside. (Id. at 229, 238). As Ms. Campos attempted to close and lock the doors, Petitioner broke through the screen door and kicked at the main door. (Id. at 230-231). Ms. Morales hid behind Ms. Campos, but Ms. Campos, who was pregnant, moved away from the door to avoid being hit. (Id. at 231-232, 250-251).
Refers to the transcript of Petitioner's jury trial that commenced on December 8, 2009. (Docket Nos. 13-3 to 13-8). The trial transcript citations herein refer to the pagination of the original transcript, and not the pages numbers that were assigned upon electronic filing.
Ms. Morales obtained an order of protection (the "Order") against Petitioner from Judge Carol Klein of the Orange County Family Court ("Judge Klein") on March 12, 2009. (Tr. at 302). Because the application for the Order was made ex parte, Judge Klein required that Petitioner be personally served. (Id. at 266-267). Accordingly, Ms. Morales asked her friend Patricia Zgrodek ("Ms. Zgrodek"), who attended counseling sessions with Petitioner, to serve the papers. (Id. at 271, 303-304). Ms. Zgrodek served the papers upon Petitioner, who accepted the service, prior to June 9, 2009 after one of their counseling sessions. (Id. at 271), Ms. Morales later stated that she petitioned Judge Klein for the Order only because her children were in jeopardy and they "come first." (Id. at 302-303). Ms. Morales also stated that Petitioner had even waited outside of the family court when Judge Klein issued the Order against him. (Id. at 303).
Petitioner gained access to the residence and, as he entered the living area, started to punch Ms. Morales in the face with a closed fist as he yelled, "you like calling me them names." (Tr. at 232-235). He then kicked Ms. Morales several times, which caused her to fall to the floor. (Id.). Petitioner continued to punch Ms. Morales in the face and head. (Id. at 235). When Ms. Morales was finally able to get up from the floor, Petitioner pushed her down onto the couch and continued hitting her. (Id. at 235-236). Ms. Morales remained silent, but attempted to defend herself by hitting Petitioner and covering her face with her hands. (Id. at 236). Finally, Ms. Campos' brother told Petitioner that the police were on their way and, though Petitioner responded that he did not care, Petitioner quickly left the residence. (Id. at 236-237). Ms. Morales left shortly thereafter, not telling Ms. Campos where she was going. (Id. at 237).
Police Officer George Valentin ("Officer Valentin") and Sergeant Booth of the City of Middletown Police Department (jointly "the Officers") arrived at the scene. (Tr. at 210). Ms. Campos and her mother immediately told the Officers that Petitioner had forced his way into the residence to assault Ms. Morales. (Id. at 210-211). They further informed the Officers that Petitioner fled and that they observed Ms. Morales leave in the direction toward her apartment on Railroad Avenue. (Id.). In response, the Officers went to Ms. Morales' residence and, when they arrived, Ms. Morales answered the door and appeared "upset, disheveled [and] angry." (Id. at 214) . She informed the Officers that her boyfriend, Petitioner, assaulted her and described him as a dark-skinned male weighing approximately 150 pounds. (Id. at 213).
The Officers then asked Ms. Morales to come to the station to make a formal statement. (Tr. at 213-214). While Ms. Morales arranged for someone to watch her children, Officer Valentin left the apartment to return to Ms. Campos' residence. (Id. at 214). As he exited, Officer Valentin ran into Petitioner, who introduced himself as Santiago Alvarez. (Id. at 214-215) . Officer Valentin took Petitioner into custody. (Id. at 215-216). As Officer Valentin walked back with Petitioner toward the patrol car, they passed Ms. Campos and her mother, who Officer Valentin heard say, "Oh, that's the man . . . he is the one that broke in." (Id. at 216). Officer Valentin subsequently learned about the damage to Ms. Campos' residence, and asked her to come to the police station to make a statement as well. (Id. at 217-218).
At trial, Ms. Morales' testimony differed from that of other witnesses and from the initial statements she gave to the police. Ms. Morales testified that on June 9, 2009, she was with Petitioner, the father of her youngest son, at her apartment on Railroad Avenue. (Tr. at 291-292). Both had been drinking. (Id. at 295). Sometime that evening, Petitioner turned on music and Ms. Morales asked him to turn it down because her baby was sleeping. (Id. at 292-293). Petitioner did not respond, and the two subsequently began cursing at each other. (Id. at 293). The argument then escalated into a shoving match, which culminated in Petitioner on top of Ms. Morales and holding her down on the kitchen floor. (Id. at 293-294). Seeing Petitioner restrain his mother, Ms. Morales' six-year-old son said, "Get off, Mommy," and hit Petitioner in the back of the head with a golf club. (Id. at 294). Petitioner removed the cord from the house telephone, so Ms. Morales left to Ms. Campos' residence to make a call. (Id. at 295-296). While at Ms. Campos' home, Ms. Morales testified that she saw Petitioner walking on the street and cursed at him in Spanish. (Id. at 296-297). Petitioner then headed toward Ms. Campos' home, and Ms. Campos told Ms. Morales to "get inside." (Id. at 297). Petitioner gained access to the residence, and Ms. Morales recalls Petitioner kicking and yelling at her, and the two ending up on the floor. (Id. at 298-299).
By Orange County Indictment Number 2009-389, Petitioner was charged with: (i) burglary in the second degree; (ii) criminal contempt in the first degree; and (iii) criminal mischief in the fourth degree. (Docket No. 13-1 at 2-3).
B. Trial, Verdict and Sentencing
On December 8, 2009, Petitioner's trial commenced before the Honorable Jeffrey G. Berry. The jury returned a verdict on December 14, 2009, convicting Petitioner on all three counts. (Tr. at 422-426).
On January 11, 2010, the court sentenced Petitioner as a second felony offender to: (i) a determinate term of imprisonment of ten years and a five-year period of post-release supervision upon Petitioner's burglary conviction; (ii) an indeterminate term of imprisonment of two to four years upon the conviction for criminal contempt in the first degree; and (iii) a one-year sentence on the remaining charge of criminal mischief. (Docket No. 13-9). The court further ordered all of the sentences to run concurrently. (Id. at 10).
C. Direct Appeal
Petitioner filed a timely notice of appeal from his judgment. On direct appeal, Petitioner limited his appeal to the claim that his sentence was excessive, and asked that it be reduced in the interest of justice. (Docket No. 13-1 at 65-80). On July 12, 2011, the New York State Supreme Court, Appellate Division (the "Appellate Division") affirmed Petitioner's conviction. (Docket No. 13-2 at 9). In March 2012, Petitioner moved pro se for an extension of time in which to seek leave to appeal to the New York State Court of Appeals (the "Court of Appeals"), (Id. at 25), which was granted on May 31, 2012, (Id. at 28). On July 2, 2012, the Court of Appeals denied Petitioner's application for leave to appeal from the Appellate Division decision. (Id. at 32-33). D. Writ of Error Coram Nobis
On January 13, 2014, Petitioner commenced a coram nobis proceeding in the Appellate Division wherein he claimed that he was denied effective assistance of appellate counsel. (Docket No. 13-2 at 33-45, 54-55). The People opposed the application. (Id. at 46-52). On July 3, 2014, the Appellate Division denied the application. (Id. at 58-59). Notice of entry of the Appellate Division's order was served on Petitioner on July 9, 2014. (Id. at 60).
E. Federal Habeas Corpus Proceedings
Petitioner filed a petition for writ of habeas corpus dated October 1, 2014, raising two grounds for relief. (Docket No. 1). Petitioner first claims that he was denied due process and a fair trial based on his trial counsel's failure to: (i) object to alleged prosecutorial misconduct; (ii) question Ms. Campos' mother on her criminal history; and (iii) call Ms. Morales as a defense witness. (Id. at 3, 5). His second claim is that he was denied effective assistance of appellate counsel on his direct appeal. (Id. at 6). Respondent filed an opposition to the Petition (the "Opposition") by papers dated May 1, 2015. (Docket No. 13).
By order dated December 2, 2014, Judge Loretta A. Preska directed Petitioner to file an affirmation showing cause why the Petition should not be denied as time-barred. (Docket No. 4). On January 6, 2015, Petitioner filed an affirmation in which he argued that the statute of limitations should be equitably tolled because his appellate attorney and the Appellate Division misinformed him regarding how to obtain his trial transcript. (Docket No. 6 at 1-4).
II. DISCUSSION
Respondent argues, inter alia, that the Petition should be dismissed because it is time-barred. (Docket No. 13 at 14-16). Upon a review of the record, the Court agrees that Petitioner did not timely file his Petition, and provides no compelling reasons for why the one-year statutory requirement should be tolled. Accordingly, the Court respectfully recommends that the Petition be dismissed as time-barred.
A. Limitations Period
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). "Before a federal district court may review the merits of a state court criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254." Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The statute allows for four different potential starting points to determine the limitations period, and states that the latest of these shall apply:
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and other cases, infra, that are unpublished or only available by electronic database, accompany this Report and Recommendation and shall be simultaneously delivered to pro se Petitioner.
(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;28 U.S.C. § 2244(d).
(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 or claims presented could have been discovered through the exercise of due diligence.
Petitioner does not argue that the State prevented him from filing his Petition. Nor does he contend that he seeks relief on the basis of a newly-recognized constitutional right, or that the factual bases of his claims were unknown to him prior to filing his Petition. Therefore, the appropriate triggering date here is "the date on winch the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." § 2244(d)(1)(A).
"[A] petitioner's conviction becomes final for AEDPA purposes when his time to seek direct review in the United States Supreme Court by writ of certiorari expires." Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) (internal quotation marks and brackets omitted). A party has ninety days in which to file a petition for a writ of certiorari requesting review of a state court decision. Sup. Ct. R. 13(1); Bowles v. Russell, 551 U.S. 205, 212 (2007); Saunders v. Senkowski, 587 F.3d 543, 547-548 (2d Cir. 2009); Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000). Here, because Petitioner's application for leave to appeal to the Court of Appeals was denied on July 2, 2012, and because Petitioner did not file a petition for a writ of certiorari, the AEDPA limitations period began to run on October 1, 2012. Accordingly, absent tolling, the one-year statute of limitations would have expired on or about October 1, 2013.
The ninety-day count from July 2, 2012 lands on September 30, 2012, a Sunday. Therefore, the Court deems the AEDPA limitations period to have begun on the first subsequent weekday, Monday, October 1, 2012.
B. Statutory Tolling
The AEDPA contains a tolling provision providing 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 any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). If the state collateral proceedings are themselves commenced after the one-year statute of limitations has already expired, however, they have no effect because they do "not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
A coram nobis petition is deemed filed on the date it is delivered to prison authorities for mailing. Fernandez v. Artuz, 402 F.3d 111, 113 (2d Cir. 2005). In this case, Petitioner placed his application for a writ of error coram nobis in a prison mailbox on January 13, 2014. (Docket No. 13-2 at 33-45, 54-55). Though such application would normally toll a limitations period, Petitioner filed his coram nobis application approximately three months after the expiration of the October 1, 2013 AEDPA limitations period. This filing, therefore, does "not reset the date from which the one-year statute of limitations begins to run." Smith, 208 F.3d at 17.
Since both this application and all of Petitioner's other submissions were filed with this Court well after the limitations period had expired, Petitioner is not entitled to further statutory tolling on the basis of these motions. See, e.g., Fernandez, 402 F.3d at 116 ("To toll the AEDPA statute of limitations, the state petition [for a writ of coram nobis] must be . . . 'pending' during the tolling period."). Accordingly, Petitioner's habeas proceeding is untimely unless he can establish another basis for overcoming the AEDPA statute of limitations.
C. Equitable Tolling
In Holland v. Florida, the Supreme Court confirmed the unanimous view of the Second Circuit and other circuit courts that the AEDPA limitations period "is subject to equitable tolling in appropriate cases." 130 S.Ct. 2549, 2560 (2010). Equitable tolling permits a court to entertain an otherwise untimely habeas petition if the petitioner establishes: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (internal quotation marks omitted). "The term 'extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). Therefore, there is "a high bar to deem circumstances sufficiently 'extraordinary' to warrant equitable tolling." Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011).
Courts have found "extraordinary circumstances" in only a small number of situations. See, e.g., id. at 363-364 (attorney affirmatively misled petitioner by promising that he would file the petition before the "last day to file"); Diaz v. Kelly, 515 F.3d 149, 154-155 (2d Cir. 2008) (state appellate court failed to inform prisoner that leave to appeal was denied); Baldayaque v. United States, 338 F.3d 145, 150-153 (2d Cir. 2003) (attorney failed to file habeas petition, despite explicit directions to do so); Valverde, 224 F.3d at 133 (corrections officer intentionally confiscated prisoner's petition shortly before the filing deadline); see also Holland, 130 S.Ct. at 2564-2565 (suggesting that "extraordinary circumstances" may be present when attorney, inter alia, failed to file a timely habeas petition despite petitioner's many letters instructing him to do so, did not inform petitioner that the state's highest court had decided his case, and ignored petitioner's letters for a period of years).
Here, Petitioner does not allege facts that meet the high bar for equitable tolling. Petitioner argues that the Petition should be equitably tolled because he was misinformed about how to obtain his trial transcript. (Docket No. 6 at 3). However, "lack of access to a trial transcript does not prevent a petitioner from filing a writ of habeas corpus." Trovato v. Kaplan, No. 11 Civ. 6092 (VB)(GAY), 2012 WL 7060608, at *4 (S.D.N.Y. Dec. 19, 2012), report and recommendation adopted, 2013 WL 636956 (S.D.N.Y. Feb. 11, 2013); see also Crawford v. Costello, 27 Fed. App'x. 57, 59 (2d Cir. 2001) ("Because there is no constitutional right to a trial transcript for collateral appeals, the state's denial of [petitioner's] request for a transcript did not constitute an unconstitutional impediment sufficient to toll the statute of limitations . . . . Nor did [petitioner's] lack of transcript prevent him from filing a habeas petition."); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) ("[L]ack of access to a trial transcript does not preclude a petitioner from commencing post-conviction proceedings and therefore does not warrant equitable tolling."). The Court acknowledges that Petitioner was initially diligent in attempting to obtain the trial transcripts, especially in light of his appellate counsel's delay. (See Docket No. 6 at 6-12). However, the Orange County Clerk's Office, the custodian of the trial transcripts, informed Petitioner on October 10, 2012 that "a friend or relative [could] come in and copy the transcripts" on Petitioner's behalf. (Docket No. 6 at 20). This afforded Petitioner nearly one year to obtain the transcripts prior to the expiration of the AEDPA limitations period on October 1, 2013. Petitioner offers no explanation as to why he failed to obtain the transcripts during that time, and provides no evidence of continued diligence throughout that near one-year period. See, e.g., Padilla v. United States, No. 02 Civ. 1142 (CSH), 2002 WL 31571733, at *4 (S.D.N.Y. Nov. 19, 2002) (lack of access to court papers and a delay in obtaining them "are not extraordinary circumstances warranting equitable tolling"). Furthermore, Petitioner points to no other impediments that prevented him from obtaining the transcripts and timely filing his Petition.
Accordingly, I respectfully recommend that Your Honor conclude that there is no basis to toll the statute of limitations on equitable grounds.
D. Actual Innocence
To make a colorable claim of actual innocence, a petitioner must establish that it is "more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The petitioner must also present "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." House v. Bell, 547 U.S. 518, 537 (2006); Doe v. Menefee, 391 F.3d 147, 161-162 (2d Cir. 2013).
Here, at minimum, Petitioner has failed to tender any "new reliable evidence" demonstrating his innocence. In light of this failure, the Court has no reason to question the jury's verdict, and Petitioner cannot rely on any potential "actual innocence" exception to the AEDPA as a basis for overcoming the one-year statute of limitations.
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be dismissed as time-barred. 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, 483-484 (2000).
IV. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, 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 tile 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 and 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). Dated: March 20, 2017
White Plains, New York
RESPECTFULLY SUBMITTED,
/s/_________
JUDITH C. McCARTHY
United States Magistrate Judge