Opinion
9:23-CV-1249 (GTS/TWD)
06-24-2024
DANIEL BEMISS, Petitioner, v. SUPERINTENDENT, Clinton Correctional Facility Respondent.
DANIEL BEMISS Petitioner Pro Se HON. LETITIA JAMES Attorney for Respondent MATTHEW KELLER, ESQ. Ass't Attorney General
DANIEL BEMISS Petitioner Pro Se
HON. LETITIA JAMES Attorney for Respondent MATTHEW KELLER, ESQ. Ass't Attorney General
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Petitioner Daniel Bemiss seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet."); Dkt. No. 1-1, Exhibits. After an initial review, petitioner was directed to file a written affirmation explaining why the statute of limitations should not bar his Petition. Dkt. No. 7, Decision and Order ("November Order"). Petitioner timely complied with the November Order, Dkt. No. 8, and the Court directed respondent to answer the Petition, Dkt. No. 9, Decision and Order.
Citations to the parties' filings and the Court's Orders refer to the pagination generated by CM/ECF, the Court's electronic filing system.
In lieu of an answer, respondent filed a motion to dismiss the action as untimely. Dkt. No. 12, Motion to Dismiss; Dkt. Nos. 12-2 --12-16, Exhibits; Dkt. No. 13, Memorandum of Law in Opposition. In the event the Court denied respondent's motion, respondent requested an additional forty-five (45) days to file an answer addressing the merits of the Petition.Petitioner opposed the motion to dismiss. Dkt. No. 15, Response. Respondent filed a reply. Dkt. No. 16, Reply.
The Rules Governing Section 2254 Cases in the United States District Courts, specifically Rule 4, states that “[i]f the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time[.]” Respondent was ordered to file an answer, not a motion; however, respondent's submission will be interpreted as both a request to file, and submission of, a motion to dismiss the Petition. Further, in the event the motion is not granted, the undersigned also grants respondent's request for an additional forty-five days' time to file an answer addressing the merits of the Petition.
For the reasons which follow, it is recommended that respondent's motion be granted, and the petition be denied and dismissed in its entirety.
II. RELEVANT BACKGROUND
A. Charges, Plea & Sentencing
Petitioner was originally charged with two counts of Criminal Sex Act in the First Degree, two counts of Criminal Sex Act in the Second Degree, three counts of Criminal Sex Act in the Third Degree, a single count of Sexual Abuse in the Second Degree, and two counts of Sexual Abuse in the Third Degree. Dkt. No. 12-14 at 3; see also Dkt. No. 1-1 at 8791.
On December 11, 2019, petitioner appeared, with counsel, in Columbia County Court for a plea hearing. Dkt. No. 12-2. Petitioner was placed under oath and indicated that, at that time, he was 52 years old, had completed two years of post-secondary education, and was not currently under the influence of drugs or alcohol. Id. at 12. Moreover, petitioner did not have any sort of "physical, mental or emotional disability which would prevent [him] from understanding [the] proceedings or [his] attorney's advice[.]" Id. Petitioner confirmed that he had not been threatened, coerced, or otherwise promised anything other than a sentence of 12 ½ years incarceration plus 20 years of post-release supervision in exchange for his guilty plea. Id. at 12-13.
Petitioner also included a copy of the transcript from his plea hearing in the exhibits he submitted in support of his Petition. Dkt. No. 1-1 at 63-85.
During the plea hearing, petitioner stated that he had sufficient time to discuss his criminal and plea proceedings with his assigned counsel and that he was satisfied with her advice and representation throughout the matter. Dkt. No. 12-2 at 8. The judge also informed petitioner of his potential sentencing exposure if he were to be found guilty of the felonies for which he was presently charged, or the additional felonies which the prosecution indicated it intended on bringing before the grand jury in the event petitioner had chosen not to plead guilty. Id. at 13-14. The County Court then informed petitioner of the rights he was waiving - his right to remain silent, his right to a trial with calling witnesses and crossexamination, his right to testify and present evidence, his right against self-incrimination, and the government's burden to prove guilt beyond reasonable doubt - and confirmed that petitioner understood the consequences of those waivers and still wished to continue with his plea. Id. at 15-18.
The judge then addressed petitioner's right to appeal, specifically his ability "to request to the Appellate Division Third Department to reverse or modify any and all of the decisions that [the County Court judge] may make." Dkt. No. 12-2 at 18. Petitioner indicated his understanding and acknowledgment that his guilty plea came with a waiver of his ability to appeal those rulings, as well as his continued retained ability "to appeal the sentence to be imposed should it be harsher than the sentence the district attorney and [petitioner] negotiated and jointly recommended[.]" Id. at 18-19.
Petitioner then admitted that "on or about the evening of August 26, 2010 . . . [he] being 18-years old or more did engage in oral sexual conduct . . . with a person who is less than 13-years-old . . . for the sexual gratification of the petitioner[.]" Dkt. No. 12-2 at 19-20. The County Court Judge concluded that petitioner's plea was "knowing, intelligent and voluntary," and the plea was accepted. Id. at 21.
On February 10, 2020, petitioner returned to Columbia County Court with his counsel for sentencing. Dkt. No. 12-3. Petitioner was sentenced to 12 ½ years incarceration, with 20 years post-supervised release, per agreement and stipulation. Id. at 13-14. Petitioner was also reminded of his obligation to register as a sex offender and signed a written acknowledgement of the waiver of his right to appeal. Id. at 14, 18-23. After engaging in another colloquy with the court about the waiver of appeal, petitioner concluded by indicating that he did not intend on appealing. Id. at 18-23; see also Dkt. No. 12-4 (the signed appeal waiver informing petitioner that he had thirty days to file a notice of appeal and indicating, via his initials and signature on the form, that he did not wish to appeal).
In the Petition, petitioner incorrectly states that he was sentenced on February 20, 2020, as opposed to February 10, 2020. Compare Dkt. No. 12-3 at 1 with Pet. at 1. While this appears to be an unintentional misstatement, as respondent indicates, it does change the calculation of the limitations periods from that which was originally opined by the Court in the November Order. See Dkt. No. 13 at 13 n.9 (citing November Order at 4-5). However, this is the reason why the action was not dismissed sua sponte after the initial review and petitioner was provided with the opportunity to file a written affirmation and respondent was directed to answer the pleading. This way the Court could properly evaluate the timeliness and, if appropriate, the merits of the Petition with the benefit of the relevant State Court Records and the parties' best arguments.
B. Post-conviction Proceedings
Petitioner did not successfully directly appeal his conviction. Pet. at 1-2. However, over nine months after petitioner's sentencing, on or about November 24, 2020, he mailed the Third Department a Notice to Appeal attempting to appeal it. Dkt. No. 12-5. On February 5, 2021, the Third Department denied petitioner's motion "without prejudice to renewal supported by an affidavit setting forth facts which establish grounds for relief under [New York Criminal Procedure Law §] 460.30." Dkt. No. 12-6.
On or about March 25, 2021, petitioner filed a renewed request for permission to file a late notice of appeal with the Third Department. Dkt. No. 12-7. Specifically, petitioner argued that he "instructed [his] trial lawyer to file a notice of appeal on [his] behalf, but she never did." Id. at 4. On May 28, 2021, the Third Department denied petitioner's motion. Dkt. No. 12-9.
On August 30, 2022, approximately fifteen months after the Third Department's decision was issued, petitioner filed a motion to vacate his judgment pursuant to New York Criminal Procedure Law § 440.10 ("440 motion"). Dkt. No. 12-10. Petitioner argued that he was entitled to relief because his counsel was constitutionally ineffective during his pleabargaining process and subsequent proceedings. Id. at 3-6, 8-9; see also Dkt. No. 12-11 (brief in support of ineffective assistance of counsel argument).
Petitioner also included a copy of his 440 motion in the exhibits he submitted in support of his Petition. Dkt. No. 1-1 at 92-102.
On November 25, 2022, the Columbia County Court denied petitioner's motion. Dkt. No. 12-14 at 7. Specifically, the county court determined that petitioner's counsel was not ineffective because he received an advantageous plea deal since he was charged with several criminal counts, yet only pled guilty to one, and his plea halted the prosecution from indicting petitioner with several more serious felonies. Id. at 2-4. Moreover, the record evidence belied petitioner's claims as it included his own statements that petitioner understood the rights that he was waiving and was satisfied with the representation he had received. Id. at 4-5.
Petitioner also included a copy of the County Court's decision in the exhibits he submitted in support of his Petition. Dkt. No. 1-1 at 43-49.
On or about December 22, 2022, petitioner moved for permission to appeal the County Court's denial of his 440 motion. Dkt. No. 12-15. On February 2, 2023, the Third Department denied petitioner's application. Dkt. No. 12-16.
Petitioner also included a copy of his application in the exhibits he submitted in support of his Petition. Dkt. No. 1-1 at 34-42.
Petitioner also included a copy of the Third Department's decision in the exhibits he submitted in support of his Petition. Dkt. No. 1-1 at 32.
III. THE PETITION
Petitioner challenges his 2020 judgment of conviction, upon a guilty plea, from Columbia County, for one count of a first-degree criminal sex act. Pet. at 1-2. Petitioner argues that he is entitled to federal habeas relief because (1) his counsel was constitutionally ineffective for various reasons and (2) his constitutional rights were violated when he was precluded from confronting the witnesses against him and coerced into waiving his right to appeal. Id. at 5-8.
IV. DISCUSSION
A. Standard of Review
Respondent moves to dismiss the petition, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that it fails to state a claim upon which habeas corpus relief may be granted. Dkt. No. 12. Specifically, respondent contends that the petition is untimely and neither statutory tolling nor any equitable considerations excuse the time-bar. Dkt. No. 13 at 12-19.
"Motions to dismiss habeas petitions on procedural grounds pursuant to Rule 12(b)(6) are not inconsistent with the Habeas Rules, given the wide discretion afforded district judges in the disposition of habeas petitions." Williams v. Breslin, 274 F.Supp.2d 421, 424-25 (S.D.N.Y. 2003). Dismissal of an action "is proper only where it appears beyond doubt that the [petitioner] can prove no set of facts in support of his claim which would entitle him to relief." Id. at 425 (citing cases). "[T]he Court must accept all well-pleaded factual allegations in the Petition as true and draw[] all reasonable inferences in favor of the petitioner . . . [and b]ecause [petitioner] is proceeding pro se, his petition must be read liberally and should be interpreted to raise the strongest arguments it suggests." Id. (internal quotation marks and citations omitted).
B. Timeliness
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, established a one-year statute of limitations for prisoners to seek federal review of their state court criminal convictions. 28 U.S.C. § 2244(d)(1). The one-year period generally begins to run from the date on which the state criminal conviction became final by the conclusion of direct review or by the expiration of the time to seek direct review. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 & n.9 (2012).
Other dates from which the limitations period may start running are (1) the date on which an unconstitutional, state-created impediment to filing a habeas petition is removed; (2) the date on which the constitutional right on which the petitioner bases his habeas application was initially recognized by the Supreme Court, if the right was newly recognized and made retroactively applicable; or (3) the date on which the factual predicate for the claim or claims presented could have been discovered through the exercise of due diligence (newly discovered evidence). See 28 U.S.C. § 2244(d)(1)(B)-(D). None of these alternate accrual dates are applicable here.
Petitioner was sentenced on February 10, 2020, and his petition explicitly states that he did not directly appeal his criminal conviction. Because petitioner did not file a direct appeal, his conviction became "final" thirty days later, on March 11, 2020, when the time in which he could have sought appellate review of his conviction in state court expired. See Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (per curiam) (explaining that the one-year statute of limitations began to run when the petitioner's time for filing a notice of appeal from the judgment of conviction expired); Vaughan v. Lape, No. 9:05-CV-1323 (DNH), 2007 WL 2042471, *4 (N.D.N.Y. July 12, 2007) (“In New York, a defendant has thirty days after the ‘imposition of the sentence' to notify the court that he will appeal.") (quoting CPL § 460.10(1)(a)).
While there was an executive order issued by the New York State Governor suspending or tolling time limits under New York Law, that order was effective from March 20, 2020, through November 3, 2020, after the relevant dates in the instant action. See Hayducka v. City of New York, 164 N.Y.S.3d 806, 2022 WL 1041150, at *3-*4 (Kings Co. Sup. Ct. Apr. 6, 2022); 9 NYCRR 8.202.8.
Accordingly, petitioner had one year from that date, or until March 11, 2021, to timely file his habeas petition. 28 U.S.C. §2244(d)(1); Saunders v. Senkowski, 587 F.3d 543, 54849 (2d Cir. 2009). The Petition was signed and placed into the prison mailing system on September 25, 2023. Pet. at 15. Thus, the action was commenced over two and a half years beyond the expiration of the limitations period.
According to Rule 6(a) of the Federal Rules of Civil Procedure, "[w]hen a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the state of the limitations period." Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). "The anniversary date is the 'last day to file even when the intervening period includes the extra leap year day.'" Ryan v. Griffin, No. 9:10-CV-0395 (MAD/ATB), 2011 WL 6934269, at *3 (N.D.N.Y. Dec. 30, 2011) (quoting United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003).
Under the prison “mailbox rule,” a petitioner's application is deemed filed on the date he delivers it to the prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988)
i. Statutory Tolling
However, the one-year limitation period under AEDPA is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); Saunders, 587 F.3d at 548. The tolling provision excludes from the limitations period only the time that the state relief application remained undecided, including the time during which an appeal from the denial of the motion was taken. Saunders, 587 F.3d at 548; Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) (per curium). Further, the tolling provision does not reset the date from which the one-year statute of limitations began to run. Smith, 208 F.3d at 17.
Petitioner argues that his trial attorney's ineffective assistance, specifically in failing to file a direct appeal challenging his criminal conviction as petitioner allegedly instructed her to do, should constitute tolling that excuses his untimely filing. Dkt. No. 8 at 1-3. Petitioner's applications seeking permission to file late notices of appeal were filed on November 24, 2020, prior to the expiration of the limitations period, and on March 25, 2021, after the expiration of the limitations period.
Respondent argues that statutory tolling is inapplicable to petitioner's motions seeking late notices to appeal and, even if it was, it would still be insufficient to save the instant action. Dkt. No. 13 at 14-16. The undersigned agrees.
The Second Circuit has stated that it is doubtful that a motion to extend the time to appeal or file a late notice of appeal tolls the statutory limitations period because such motions are not "properly filed application[s] for state post-conviction or other collateral review." Bethea v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002). Later decisions from the Eastern District of New York have construed the Second Circuit's holding to conclude that a "motion for [an] extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted." Kendrick v. Greiner, 296 F.Supp.2d 348, 356 (E.D.N.Y. 2003); see also Ewing v. New York, No. 1:12-CV-2027, 2012 WL 5424103, at *2 n.3 (E.D.N.Y. Nov. 5, 2012) (citing Kendrick). Further, the Second Circuit has explicitly held "that the filing of a motion to extend the time to appeal or to file a late notice of appeal does not 'restart' the AEDPA limitation period." Id. at 578-79. Accordingly, petitioner's arguments that his applications to file late notices to appeal are subject to tolling is tenuous at best.
Here, the record evidence of petitioner's testimony and signed waiver of appeal belies his current self-serving assertion that he intended on instructing his trial counsel to appeal his guilty plea and criminal conviction. However, assuming that petitioner changed his mind and later decided he was going to pursue a direct appeal, both of petitioner's motions to file a late notice of appeal were denied. Accordingly, the undersigned is persuaded by the Eastern District's conclusion that statutory tolling should not apply.
Even assuming such tolling does apply, it would not change the result because the instant action would still be untimely. Petitioner is entitled to tolling only while his applications were pending before the Third Department. See Chettana v. Racette, No. 9:15-CV-0028 (MAD), 2016 WL 447716, at *6 & n.5 (N.D.N.Y. Feb. 4, 2016) (explaining that, to the extent an application to file a late notice of appeal tolls the limitation period, it is while the application is pending before the Appellate Division and does not include any subsequent motions to the Court of Appeals after an Appellate Division denial because any such subsequent appeal is relief not recognized in New York State) (citing N.Y. Crim. Pro. Law §450.90(1); Cendeno v. Conway, 724 F.Supp.2d 373, 377 (W.D.N.Y. 2010)). Therefore, the limitations period (1) ran for 258 days (between March 11, 2020 when petitioner's conviction became final and his first application for a late notice of appeal was filed); (2) was tolled until the Third Department denied petitioner's application on February 5, 2021; (3) ran for an additional 47 days until petitioner filed his second application for a late notice of appeal on March 25, 2021; (4) was tolled until the Third Department denied the second application on May 28, 2021; and (5) expired 60 days later, on July 27, 2021. Because the instant action was commenced on September 25, 2023, it is still untimely even if statutory tolling is applied to petitioner's applications to file late notices of appeal.
Further, the 440 motion that petitioner filed collaterally challenging his state court conviction will not trigger any statutory tolling. That is because the 440 motion was filed on August 30, 2022, approximately thirteen months after the limitations period had expired, and a 440 motion cannot serve to "revive [an] expired statute of limitations." Gillard v. Sticht, No. 9:16-CV-0513 (MAD), 2017 WL 318848, at *3 (N.D.N.Y. Jan. 23, 2017) (citations omitted); accord, Roberts v. Artus, No. 1:16-CV-2055, 2016 WL 2727112, at *2 (E.D.N.Y. May 5, 2016) ("If the 440 motion was filed after the one-year statute of limitations period expired, it cannot be counted for purposes of statutory tolling.").
Consequently, statutory tolling alone does not save petitioner's claims from being deemed untimely.
ii. Equitable Tolling
The AEDPA's one-year statute of limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). To warrant equitable tolling, a petitioner must show "'(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 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008).
To show that extraordinary circumstances 'prevented' him from filing his petition on time, [P]etitioner must 'demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the [P]etitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.Hizbullanhankhamon, 255 F.3d at 75 (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Petitioner argues that his trial counsel's actions in ignoring petitioner's allegedly explicit instructions to directly appeal his criminal conviction constitute extraordinary circumstances which justify equitable tolling. Dkt. No. 15 at 1-2. Moreover, petitioner states that when his trial counsel was confronted about her "unproffesional [sic] and unsatisfactory capacity" she discontinued representing him in his concurrently pending divorce proceeding, resulting in petitioner having "to represent [him]self because [he] used up [his] resources to retain her." Id. Petitioner "concentrated [his efforts] on trying to learn and represent [him]self in Domestic Law and had no time to continue with appeals and motions for [his] criminal actions." Id. at 2. Finally, petitioner asserts that the law library and movement restrictions which were imposed during, and continued after, the global pandemic also support petitioner's request for equitable tolling. Id.
Respondent opposes petitioner's arguments, stating that petitioner's decision to solely concentrate on one legal action -- instead of distributing his time and energy among all his legal issues -- was a personal choice that does not constitute an extraordinary circumstance. Dkt. No. 16 at 1-2. Second, respondent contends that petitioner's assertions about limited movement and law library time are among the difficulties commonly experienced by all incarcerated individuals and do not rise to the level of extraordinary circumstances. Id.
Assuming, without deciding, that petitioner's arguments that the actions of his trial counsel constituted extraordinary circumstances, petitioner must show that he "consistently and diligently pursued his rights throughout the entire period he seeks to toll" because "show[ing] reasonable diligence for [only] a discrete period of time," is insufficient. Owens v. Keyser, No. 1:18-CV-11638, 2020 WL 9596014, at *7 (S.D.N.Y. Sept. 25, 2020) (denying equitable tolling where petitioner failed to "proffer[] any facts to show that he exhibited any diligence [for the eighteen months' time from when] . . . he learned that his leave to appeal was denied until he filed his Petition, except for the brief time [for one month] when he enlisted the help of his housing officer [to acquire his legal file]."); see also Taylor v. Brown, No. 1:06-CV-7675, 2009 WL 400365, at *4 (S.D.N.Y. Oct. 2, 2008) (opining that equitable tolling would not be available for a petitioner who timely filed a habeas petition which then was stayed, but then failed to promptly request that the stay be lifted until 200 days after the limitations period had expired, and did not otherwise "proffer an explanation for the actions he took [during those 200 days] to pursue exhaustion of his state-court remedies or his federal habeas corpus petition."); Gadson v. Greiner, 1:00-CV-1179, 2000 WL 1692846, at *2 (E.D.N.Y. Sept. 27, 2000) (holding that a one-year period and seven and one-half month period constitute "prolonged periods of inactivity [that] cannot be viewed as anything other than a marked lack of diligence.").
Here, petitioner has failed to establish reasonable diligence. Petitioner was fully aware that, as of May 28, 2021, when the Third Department denied his second application for filing a late notice to appeal, any avenue to directly appeal his criminal conviction was over. Petitioner still had two months remaining in the statutory limitations period to either file a collateral challenge, to further toll the limitations period, or a timely federal habeas action. Instead, petitioner waited over a year to file his collateral challenge to his state court conviction and over two years before he filed the instant federal habeas action. Based on that time period alone, equitable tolling has been denied. See Barrett v. United States, 961 F.Supp.2d 403, 409 (D. Conn. 2013) (finding petitioner's "inordinate delay in filing his petition - nearly seven months after his attorney explicitly informed him of his right to do so -precludes any finding or reasonable diligence.") (citing Belot v. Burge, 490 F.3d 201, 207-08 (2d Cir. 2007) (affirming district court's decision that petitioner was not entitled to equitable tolling because "the petitioner ought reasonably to have begun his preparation earlier and filed an unpolished-but-timely-petition rather than wait to file his more polished petition . . . the week that the deadline expired.") (internal quotation marks and alterations omitted).
Further, petitioner provides no information on what he was doing or how he was acting with reasonable diligence for that two-year period between the expiration of the statutory limitations period and the filing of the instant action. "[P]etitioner's attorney's alleged failure to file a promised appeal did not necessarily foreclose petitioner's own efforts at filing a habeas petition nor did it cause [the habeas] petition to be untimely." Tarafa v. Artus, No. 1:10-CV-3870, 2013 WL 3778795, at *6 (S.D.N.Y. Mar. 11, 2013), adopted as modified, 2013 WL 3789089 (S.D.N.Y. July 18, 2013); Craig v. Connolly, No. 15-CV-384 (GLS/CFH), 2016 WL 7993378, at *3 (N.D.N.Y. Dec. 6, 2016), report and recommendation adopted, 2017 WL 375662 (Jan. 26, 2017) (holding that Petitioner's attorney's failure to file a notice of appeal "would bear no causal connection to petitioner's independent failure to timely file a habeas petition .... "). This is because "[a]n attorney's failure to file a promised appeal is distinct from an attorney's failure to file a promised habeas petition ...." Tarafa, 2013 WL 3778795, at *6. In other words, even where a petitioner establishes an "'extraordinary circumstance' warranting equitable tolling," they may be unable to show "that [the] extraordinary circumstance prevented him from filing a timely habeas petition." Hizbullanhankhamon, 255 F.3d at 76 (emphasis in original). "[P]etitioner's failure to describe any step he took toward preparing his application during the relevant period means the link of causation between the extraordinary circumstances and the failure to file is broken, and equitable tolling is not warranted." Perez v. Johnson, No. 1:21-CV-3061, 2023 WL 4405656, at *5 (E.D.N.Y. July 7, 2023) (internal quotation marks and citations omitted).
Finally, petitioner's arguments about his limited movement and access to the law library do not fare much better. "Generally, the difficulties attendant on prison life, such as transfers between facilities, solitary confinement, lockdowns, restricted access to the law library, and an inability to secure court documents, do not, by themselves qualify as extraordinary circumstances." Ghee v. McAuliffe, No. 9:23-CV-0505 (MAD), 2024 WL 1558480, at *3 (N.D.N.Y. Apr. 10, 2024) (citing cases); see also Franzese v. Miller, No. 1:23-CV-7380, 2024 WL 1623322, at *3 (E.D.N.Y. Apr. 15, 2024) ("Loss of legal materials or lack of access to the law library at new penal facilities have consistently been held not to amount to extraordinary circumstances under the AEDPA.") (citing cases). Further, any arguments that petitioner was a layman and unskilled in the law are similarly insufficient to change the Court's analysis. "Most courts . . . recognize that lack of knowledge and education about the law and one's legal rights is not an extraordinary circumstance because tolling for this common obstacle that most petitioners face would undermine the legislative decision to impose a one-year limitations period." Adkins v. Warden, 585 F.Supp.2d 286, 297 (D. Conn. 2008), aff'd, 354 Fed.Appx. 564 (2d Cir. 2009), cert. denied, 562 U.S. 953 (2010) (citing cases). Finally, petitioner has failed to specifically articulate how these restrictions interfered or prevented his ability to timely file the instant action.
Consequently, petitioner has failed to establish the diligent pursuit of his claims; therefore, equitable tolling will not save the untimely petition.
iii. Equitable Exception
Courts have also recognized an equitable exception to the one-year statute of limitations under 28 U.S.C. §2244(d)(1) in cases where a petitioner can prove actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). It is important to stress that "[o]nce guilt is . . . established . . . a federal habeas court will not relitigate the question of guilt for a state defendant who protests his actual innocence . . . [r]ather, a federal habeas court will review state convictions for constitutional error." Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019).
An actual innocence claim will be recognized only in a "narrow class of truly extraordinary cases [where a petitioner can] present[] credible and compelling claims of actual innocence." Hyman, 927 F.3d at 656 (citing Schlup, 513 U.S. at 315) (internal quotation marks omitted); see also House, 547 U.S. at 538 (noting that the actual innocence gateway standard is "demanding and permits review only in the extraordinary case.") (internal quotation marks omitted). "The petitioner's burden in making a gateway showing of actual innocence is deliberately demanding." Hyman, 927 F.3d at 656 (citing cases).
"To be credible, such a 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-that was not presented at trial." Schlup, 513 U.S. at 324; see also Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012); Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). In addition, "prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House, 547 U.S. at 536-37 (quoting Schlup, 513 U.S. at 327); see also Doe, 391 F.3d at 160-62.
Schlup and House involved procedurally defaulted claims. See McQuiggan, 569 U.S. at 386. The Supreme Court in McQuiggan held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, the expiration of the statute of limitations." Id.
"The standard's demand for evidence of innocence references factual innocence, not mere legal insufficiency." Hyman, 927 F.3d at 657 (quoting Schlup, 513 U.S. at 316 & Bousley v. United States, 523 U.S. 614, 623-24 (1998)) (internal quotation marks omitted). In clarifying what this standard requires, the Second Circuit explained:
a reviewing court assessing the probability of actual innocence is not limited to the trial record. To the contrary, it "must consider all the evidence, old and new, incriminating and exculpatory," House v. Bell, 547 U.S. at 538 . . . (internal quotation marks omitted), and, in doing so, "is not bound by the rules of admissibility that would govern at trial," Schlup v. Delo, 513 U.S. at 327 . . . This is because, at the gateway stage of inquiry, a habeas court's task is . . . to identify those cases in which a compelling showing of actual innocence would make it a manifest injustice to maintain conviction unless it was free of constitutional error. Thus, incriminating evidence obtained in the course of an unlawful search, or custodial admissions made in the absence of Miranda warnings, may well be inadmissible at trial. Nevertheless, such evidence is properly considered in assessing factual innocence, with the manner of procurement informing reliability and relevance and, therefore, weight.Id. at 658.
Here, petitioner does not argue that he is actually innocent. Instead, he focuses on the errors of his counsel and the conditions of his incarceration. However, to the extent any of petitioner's arguments could be construed to allege actual innocence, any such assertions would be conclusory and unsupported. Moreover, they would be belied by petitioner's sworn testimony at the plea hearing. "In habeas proceedings, guilty pleas are impossible to ignore," and while "[a] gateway claim of innocence is . . . not barred per se by a petitioner's guilty plea," it should also not be "downplay[ed since it] . . . carries a strong presumption of verity." Cosey v. Lilley, 62 F.4th 74, 85 (2d Cir. 2023) (internal quotation marks and citations omitted). Petitioner's statements, as well as the totality of the circumstances of this case, demonstrate that petitioner has failed to rebut his guilty plea's presumption of verity.
V. CONCLUSION
WHEREFORE, it is
RECOMMENDED that respondent's motion to dismiss, Dkt. No. 12, be GRANTED; and it is further
RECOMMENDED that the petition, Dkt. No. 1, be DENIED and DISMISSED in its entirety; and it is further
RECOMMENDED that no Certificate of Appealability ("COA") shall issue because petitioner has failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. § 2253(c)(2) requires; and it is further
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (holding that if the court denies a habeas petition on procedural grounds, "the certificate of appealability must show that jurists of reason would find debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the applicant has established a valid constitutional violation" (emphasis in original)).
RECOMMENDED that any further request for a Certificate of Appealability must be addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk of the Court respectfully provide petitioner with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall serve a copy of this Report-Recommendation and Order upon the parties in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report,
19 (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 & 6(a). recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).