Opinion
22 Civ. 1178 (VB)(PED)
03-08-2023
Adam Cottell, Petitioner, v. Patrick Reardon, Respondent.
PAUL E. DAVISON, U.S.M.J.
REPORT AND RECOMMENDATION
TO THE HONORABLE VINCENT L. BRICCETTI, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Adam Cottell (“Petitioner”), proceeding/?™ se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence upon a plea agreement in New York Supreme Court, Dutchess County. [Dkt. 1.] On April 29, 2013, Petitioner pleaded guilty to one count of a criminal sexual act in the first degree, one count of aggravated sexual abuse in the first degree, one count of criminal mischief in the first degree, and one count of endangering the welfare of a child. Petitioner was sentenced to ten years imprisonment with a ten-year period of post-release supervision. Petitioner is currently serving his sentence at the Marcy Correctional Facility in Oneida County, New York. The Petition comes before me pursuant to an Order of Reference entered on February 14, 2022. [Dkt. 8.] For the reasons set forth below, I respectfully recommend that Your Honor DISMISS the Petition as time-barred.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 1] and Respondent's Answer with attached exhibits [Dkts. 11, 12].
On May 17, 2016, Petitioner woke up his wife and raped her by anally penetrating her and using a dildo to vaginally penetrate her. His wife said “no” repeatedly. While Petitioner was raping her, she began kicking and screaming. Her screaming woke up their one-year-old daughter who began crying. Petitioner ultimately finished raping his wife and she proceeded to lock herself in the bathroom. Petitioner then began slamming himself into the bathroom door, trying to gain access. She unlocked the door to not upset their child any further. Petitioner told his wife not to contact the police, but his wife attempted to call 911. Petitioner then took the phone from her and hung up. Petitioner went back to bed, and his wife took their child and left.
B. Procedural History
1. Petitioner's Plea and Sentencing
On March 22, 2017, Petitioner pled guilty to aggravated sexual abuse in the first degree, criminal sexual act in the first degree, criminal mischief in the fourth degree, and endangering the welfare of a child. [Dkt. 11-10 at 16-17.] The judge undertook a plea colloquy to ensure that Petitioner understood the crimes that he was pleading guilty to and the rights he was waiving by pleading guilty. [Id. at 16-21.] On June 27, 2017, Petitioner was sentenced to a determinate sentence of 10 years in prison to be followed by 10 years post-release supervision for aggravated sexual abuse in the first degree and for criminal sexual act in the first degree, respectively. [Dkt. 11-12 at 21.] Petitioner was sentenced to one year for criminal mischief in the fourth degree and for endangering the welfare of a child, respectively. [Id. at 22.] Petitioner's sentences were set to run concurrently to one another. [Id. at 21-22.]
2. Petitioner's Direct Appeal
On September 27, 2018, Petitioner, through counsel, filed an appeal to the Appellate Division, Second Department. [Dkt. 11-13 at 38-39.] Petitioner appealed on four grounds: (1) Petitioner's waiver of his right to appeal was invalid; (2) the court erred in failing to suppress evidence recovered from an illegal arrest; (3) Petitioner's statement to the police should have been suppressed; and (4) the sentence was excessive. [Id. at 26-37.] The state submitted its opposition on October 9, 2018. [Dkt. 11-14 at 42.]
On May 22, 2019, the Appellate Division affirmed the judgment against Petitioner. People v. Cottell, 98 N.Y.S.3d 892 (App. Div. 2019). The Appellate Division determined that Petitioner's waiver of his right to appeal was valid, and that it foreclosed appellate review of Petitioner's arguments. Id. at 892-93. Petitioner sought leave to appeal to the Court of Appeals through papers dated June 14, 2019. [Dkt. 11-16 at 1-7.] The state submitted its opposition on July 31, 2019. [Dkt. 11-17 at 1.] Through papers dated August 15,2 019, Petitioner submitted a reply to the opposition. [Dkt 11-18 at 3.] The Court of Appeals summarily denied Petitioner's leave application on September 17, 2019. People v. Cottell, 134 N.E.2d 641 (Table) (N.Y. 2019).
3. Petitioner's CPL § 440.10 Motion
In papers dated June 27, 2019, Petitioner moved to vacate the judgment pursuant to CPL § 440.10. [Dkt. 11-20 at 11.] In his motion, Petitioner argues that he received ineffective assistance of counsel. [Id. at 2-12.] The state submitted its opposition on August 14, 2019. [Dkt. 11-21 at 27.] The County Court issued a decision on December 16, 2019. [Dkt. 11-22 at 11.] The court denied Petitioner's motion, finding that Petitioner had received effective assistance of counsel. [Id. at 7-11.] The state provided Petitioner with a copy of the County Court's decision on January 9, 2020. [Id. at 1.] Petitioner did not seek leave to appeal the County Court's decision.
4. The Instant Petition
Petitioner filed the instant Petition pro se on or about January 24, 2022. Petitioner raises four grounds for habeas relief. [Dkt. 1 at 4-9.] Petitioner argues that: (1) he plead guilty without understanding the consequences of the appeal waiver; (2) the waiver of appeal is invalid; (3) the trial court erred in failing to suppress evidence recovered as a result of Petitioner's illegal arrest; and (4) Petitioner's statement to the police should have been suppressed. [Id.] Respondent submitted an opposition on April 13, 2022. [Dkt. 12.] Through papers dated May 17, 2022, Petitioner submitted a “Motion to Continue” in which Petitioner addressed Respondent's argument that the Petition was untimely. [Dirts. 16,17.]
The date on which Petitioner placed the instant Petition in the prison mailing system. See Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (extending the “mailbox rule,” Houston v. Lack, 487 U.S. 266 (1988), to pro se petitions for habeas relief).
III. APPLICABLE LAW
AEDPA established a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction. See 28 U.S.C. § 2244(d)(1). The one-year limitation period runs from 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 or claims presented could have been discovered through the exercise of due diligence.Id. “Pursuant to 28 U.S.C. § 2244(d)(1)(A), a judgment becomes final only after the denial of certiorari or the expiration of time for seeking certiorari-in the latter case, ninety days after a decision by the New York Court of Appeals.” Chrysler v. Guiney, 14 F.Supp.3d 418, 433 (S.D.N.Y. 2014).
AEDPA's statute of limitations is tolled during the pendency of a properly filed application for state post-conviction relief, or other collateral review, of a claim raised in the petition. See 28 U.S.C. § 2244(d)(2). The one-year limitation period is also subject to equitable tolling, which is warranted when a petitioner has shown “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Hollandv. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The term ‘extraordinary' refers not to the uniqueness of a parly'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). “To secure equitable tolling, it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline.” Id. Additionally, “[c]onsistent with the maxim that equity aids the vigilant, a petitioner seeking equitable tolling of AEDPA's limitations period must demonstrate that he acted with reasonable diligence throughout the period he seeks to toll.” Id. at 138 (internal quotation marks and citations omitted); see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (A petitioner seeking equitable tolling 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 petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.”).
IV. ANALYSIS
A. The Petition Is Untimely
Petitioner's conviction became final on December 16, 2019, 90 days after his application for leave to appeal to the Court of Appeals was denied on September 17, 2019. People v. Cottell, 134 N,E.2d 641 (Table) (N.Y. 2019). Absent tolling, then, the one-year limitation period for Petitioner's habeas petition would have expired on December 16, 2020.
However, while Petitioner's appeal was pending, Petitioner filed his CPL § 440.10 motion on June 27, 2019. Accordingly, the limitations period was tolled. The County Court issued its decision on December 16, 2019 and the state provided Petitioner with a copy on January 9, 2020. Because Petitioner failed to seek leave to appeal, the tolling period ended on February 10, 2020, 30 days after Petitioner was served with notice of the trial court's entry of the order of denial on January 9, 2020. See Alke v. Artus, 2016 WL 4186965, at *3 (E.D.N.Y. Aug. 8, 2016) (collecting cases). The AEDPA limitations period thus expired on February 10, 2021. Petitioner did not file his habeas petition until January 24, 2022, nearly a year after the deadline. The Petition is therefore plainly untimely under 28 U.S.C. § 2244(d)(1).
The period would have expired on Saturday, February 8, 2020, but the next business day was Monday, February 10, 2020.
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557F.3d76 (2d Cir. 2009) (per curiam).
B. Equitable Tolling Does Not Apply
Petitioner advances several arguments which can be construed as possible grounds for equitable tolling. In his Petition, Petitioner asserts that he “was waiting for an answer” from the Dutchess County Court regarding his CPL § 440.10 motion and that he “never once got a response” when he wrote to the County Court inquiring about his motion. [Dkt. 1 at 11.] In his “Motion for Continuance”, Petitioner asserts that he received the County Court's ruling on January 13, 2020, in response to a FOIL request. [Dkt. 17 at 1-2.] He further asserts that he was admitted to the hospital on January 29, 2020 for a week due to a seizure, and that “[s]hortly thereafter Covid shut down many aspects of the facility, including the law library.” [Id. at 2.] In the interest of liberal construction, I interpret Petitioner's pro se submissions as arguing that his ignorance as to the status of his § 440.10 motion, his health issues, and CO VID shutdowns entitle him to equitable tolling. See United States v. Pilcher, 950 F.3d 39, 44 (2d Cir. 2020) (“It is well established that courts liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest.” (internal quotation marks omitted)).
“To warrant equitable tolling, the circumstances of a case must be extraordinary.” United States v. Wright, 945 F.3d 677, 684 (2d Cir. 2019) (internal quotations marks omitted). When determining what constitutes extraordinary circumstances, the Second Circuit has observed that “the proper inquiry is not how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period.” Diaz v. Kelly, 515 F.3d 149,154 (2d Cir. 2008). As noted above, it is not enough for the party seeking equitable tolling to show “that extraordinary circumstances prevented him from filing his petition on time,” but he must also show that he “acted with reasonable diligence throughout the period he seeks to toll.” Smith, 208 F.3d atl7. “If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.” Valverde, 224 F.3d at 134.
Petitioner first argues that he never received a response from the Dutchess County Court, but concedes that he did receive a copy of the County Court's decision on January 13, 2020 through a FOIL request. [Dkt. 17 at 1.] Indeed, “a state court's prolonged delay ... in notifying a petitioner about a ruling that completes exhaustion of state court remedies can constitute an extraordinary circumstance that would warrant equitable tolling.” Favourite v. Colvin, 758 Fed.Appx. 68, 69 (2d Cir. 2018) (internal quotation marks omitted). Accordingly, the County Court's failure to notify Petitioner of its decision regarding his CPL § 440.10 motion would indeed qualify as an extraordinary circumstance. Nonetheless, Petitioner must also show the causal link between the extraordinary circumstance and his failure to file, and this is where Petitioner fails. Here, Petitioner overcame the extraordinary circumstance of the County Court's failure and obtained a copy of the decision on January 13, 2020. But even after he obtained a copy of the decision, Petitioner waited more than two years to file his habeas petition. Petitioner could have filed a timely petition upon receipt of the decision on January 13, 2020, or at any point until the AEDPA limitation period expired on February 10, 2021, but he failed to do so and instead waited until January 24, 2022 to file his petition. See Holland, 560 U.S. at 653 (finding diligence where “the very day that [petitioner] discovered that his AEDPA clock had expired due to [his attorney's] failings, [petitioner] prepared his own habeas petition pro se and promptly filed it with the District Court.”). Petitioner is thus not entitled to equitable tolling due to the County Court's failure to notify him of its decision because he failed to act with reasonable diligence upon learning that his CPL § 440.10 motion had been denied.
Petitioner next argues that he was hospitalized for a week starting on January 29, 2020 as a result of a seizure. A hospitalization may indeed qualify as an extraordinary event. See Harper, 648 F.3d at 137. However, Petitioner was only hospitalized for a week and as a result, his hospitalization does not explain his failure to file for nearly two years. Further, even if Petitioner received equitable tolling as a result of his hospitalization, it would have no impact on the timeliness of his petition. Petitioner's hospitalization would toll the statute of limitations until February 5, 2020, but the limitations period did not begin to run until February 10, 2020. Accordingly, Petitioner is not entitled to equitable tolling due to his week-long hospitalization.
Finally, Petitioner argues that he was prevented from filing in a timely manner due to CO VID. Petitioner alludes to the prison shutting down and highlights the restricted access that he had to the law library as a result. [Dkt. 17 at 2.] Although there is no question that CO VID constituted an extraordinary circumstance, a petitioner seeking equitable tolling must “proffer something, at least, about his efforts to contend” with CO VID-related impediments. Mairs v. Fields, 2021 WL 4311140, at *2 (E.D.N.Y. Sept. 22, 2021). Here, Petitioner fails to proffer anything regarding his efforts to contend with the extraordinary circumstances. Further, Petitioner has not explained how COVID-related shut downs of the law library prevented him from submitting a timely petition, particularly given that most of the grounds upon which Petitioner now seeks habeas review were previously asserted in his direct appeal. Thus, Petitioner has failed to show why he is entitled to equitable tolling on the basis of the COVID-19 pandemic.
Accordingly, I conclude, and I respectfully recommend Your Honor conclude, that Petitioner is not entitled to equitable tolling.
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that Your Honor DISMISS the Petition for a Writ of Habeas Corpus as time-barred. I recommend that no certificate of appealability be issued 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. See 28 U.S.C. 2253 (c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, 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 service 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 an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed.R.Civ.P. 6 (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Briccetti. A copy of this Report and Recommendation has been mailed to:
Adam Cottell
DIN# 17A2922
Marcy Correctional Facility
P.O. Box 3600
Marcy, NY 13403