Opinion
21 Civ. 6503 (NSR)(PED)
10-10-2024
Eryc Hairston, Petitioner, v. Earl Bell, Superintendent of Clinton Correctional Facility Respondent.
REPORT AND RECOMMENDATION
Paul E. Davison, U.S M.J. TO THE HONORABLE NELSON STEPHEN ROMAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Eryc Hairston (“Petitioner”), proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence upon a jury verdict in County Court for the County of Westchester. [Dkt. 1.] On June 24, 2016, Petitioner was convicted of murder in the second degree. He was sentenced to twenty-two years to life in prison. Petitioner is currently serving his sentence at the Clinton Correctional Facility in Clinton County, New York. The Petition comes before me pursuant to an Order of Reference entered on October 28, 2021. [Dkt. 13.] For the reasons set forth below, I respectfully recommend that Your Honor DISMISS the Petition as time-barred.
On October 22, 2021, Petitioner filed a motion seeking to stay his petition pending further proceedings in state court. [Dkts. 11-12.] I deny that motion without prejudice in a contemporaneously-filed order.
II. BACKGROUND
The information in this section is taken from the Petition [Diet. 1] and Respondent's Answer with attached exhibits [Dkt. 9].
In the early hours of the morning of July 8, 2015, Kennedy Gonzalez and Miguel Vega were walking around the streets of Yonkers, New York. Petitioner encountered Gonzalez and Vega, and he stopped them. He then pulled a silver handgun from his right pocket. Petitioner waved the handgun back and forth between Gonzalez and Vega, and demanded that they empty their pockets. Vega removed his watch, but Gonzalez attempted to swat Petitioner's handgun away. Gonzalez then began to turn away when Petitioner stepped back and shot Gonzalez twice in the back, at close range. Petitioner then fled the scene. Vega was able to flag down three members of the Yonkers police who were in the area. The police ordered an ambulance for Gonzalez, but Gonzalez succumbed to his wounds shortly after arriving at the hospital. Through an extensive review of surveillance videos, the police were able to locate and arrest Petitioner.
B. Procedural History
1. The Trial and Sentencing
The trial for Petitioner's criminal activity began with jury selection on June 1, 2016. [Dkt. 10-2 at 1.] The trial concluded and the jury rendered a verdict that found Petitioner guilty of murder in the second degree on June 24, 2016. [Dkt. 10-4 at 313-14.] On August 30, 2016, Petitioner was sentenced to an indeterminate sentence, the minimum of which was 22 years in prison and the maximum of which was life in prison. [Dkt. 10-1 at 16.]
2. The Direct Appeal
On January 11, 2018, Petitioner, through counsel, submitted a brief to the Appellate ' Division, Second Department, appealing the jury's verdict. [Dkt. 9-2 at 2.] Petitioner argued that: (1) the verdict was against the weight of the evidence; (2) the trial court improperly gave the jury additional instructions in response to a jury note; and (3) Petitioner's sentence was unduly harsh and excessive. [Id. at 8-36.] On April 13, 2018, the state submitted its opposition to Petitioner's appeal. [Dkt. 9-3 at 64.] By opinion dated December 19, 2018, the Appellate Division affirmed Petitioner's conviction and sentence. People v. Hairston, 90 N.Y.S.3d 117 (App. Div. 2018). On February 15, 2019, Petitioner submitted an application requesting leave to appeal the Appellate Division's decision to the Court of Appeals. [Dkt. 9-5 at 1.] The state submitted its opposition on April 3, 2019. [Dkt. 9-6 at 1.] By opinion dated April 8, 2019, the Court of Appeals summarily denied Petitioner leave to appeal the Appellate Division's decision. People v. Hairston, 124 N.E.3d 762 (N.Y. 2019).
3. The Motion for a Writ of Error Coram Nobis
On July 9, 2020, Petitioner submitted a motion for a writ of error coram nobis. [Dkt. 9-8 at 1.] Petitioner argued that he received ineffective assistance of appellate counsel because his counsel failed to raise certain arguments on appeal. [Id. at 7-13.] The state submitted its opposition on October 1, 2020. [Dkt. 9-9 at 8.] By decision dated December 30, 2020, the Appellate Division denied Petitioner's writ of error coram nobis, finding that Petitioner failed to establish that he did not receive effective assistance of counsel. People v. Hairston, 135 N.Y.S.3d 307 (App. Div. 2020). By letter dated February 8, 2021, Petitioner requested leave to appeal the Appellate Division's decision. [Dkt. 9-11 at 1.] The state submitted a letter in opposition on March 11, 2021. [Dkt. 9-12 at 1.] By decision dated May 26, 2021, the Court of Appeals summarily denied Petitioner's application. People v. Hairston, 170 N.E.3d 400 (Table) (N.Y. 2021).
4. The Instant Petition
Petitioner filed the instant Petition pro se on or about July 27, 2021, wherein he seeks habeas review of the claim that there was insufficient evidence to support his conviction. [Dkt. 1 at 5.] With respect to the timeliness of the Petition, Petitioner stated that he “received denial of leave to appeal on April 8, 2019.” [Id. at 13.] He further noted that “[t]his petition was due to be filed by July 8, 2020, and thus is timely filed.” [Zd] Respondent submitted its opposition on October 8, 2021. [Dkt, 9.]
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).
On March 18, 2022, the Court's preliminary review of the instant petition revealed that neither party had addressed the issue of timeliness. Accordingly, the undersigned issued an Order directing the parties to submit supplemental briefs within forty-five days, addressing the issue of whether the instant petition was timely filed. [Dkt. 17.] Respondent filed its supplemental brief on March 21, 2022. [Dkt. 18.] On May 9, 2022, Petitioner filed a supplemental brief, arguing that the AEDPA deadline be subject to equitable tolling in light of “a set of rare and extraordinary circumstance[s].” [Dkt. 20 at 4.]
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.” Holland v. 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 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). “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 was convicted on June 24, 2016 in the New York Supreme Court, Westchester County. The Appellate Division, Second Department affirmed Petitioner's conviction on December 19, 2018 and the Court of Appeals denied Petitioner leave to appeal on April 8, 2019. See People v. Hairston, 90 N.Y.S.3d 117 (App. Div. 2018), leave denied 124 N.E.3d 762 (Table) (N.Y. 2019). Accordingly, Petitioner's conviction became final on July 8, 2019, 90 days after his application for leave to appeal to the Court of Appeals was denied. See Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000). Absent tolling, then, the one-year limitation period for Petitioner's habeas petition expired on July 8, 2020. Petitioner concedes as much in his Petition: “[t]his petition was due to be filed by July 8, 2020[.]” [Dkt. 1 at 13.]
On July 9, 2020-one day after the AEDPA limitations period expired-Petitioner filed his application for a writ of error coram nobis. Although this collateral action would toll an unexpired AEDPA deadline under 28 U.S.C. § 2244(d)(2), “proper calculation of Section 2244(d)(2) 's tolling provision excludes time during which properly filed state relief applications are pending but does not re,yet the date from which the one-year statute of limitations begins to run.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (emphasis added). Thus, Petitioner's coram nobis filing had no impact on the already-expired AEDPA deadline.
Moreover, the New York Court of Appeals denied Petitioner's leave application with respect to the coram nobis application on May 26, 2021. People v. Hairston, 170 N.E.3d 400 (Table) (N.Y. 2021). An additional 32 days elapsed before Petitioner filed this habeas action on July 27, 2021. The Petition was plainly untimely under 28 U.S.C. § 2244(d)(1).
Petitioner is not entitled to statutory tolling on the basis of his coram nobis application because the AEDPA limitations period had already expired. I note, however, that Petitioner did not apply for a writ of certiorari with respect to his coram nobis. In the Second Circuit, “the AEDPA limitations period is not tolled during the time in which a petition for a writ of certiorari to the United States Supreme Court could have been filed with respect to a state collateral motion[.]” Saunders v. Senkowski, 587 F.3d 543, 548-49 (2d Cir. 2009) (citing Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) abrogation on other grounds recognized by Dillon v. Conway, 642 F.3d 358 (2d Cir. 2011)).
B. Petitioner Is Not Entitled to Equitable Tolling
Petitioner argues that the statute of limitations for his habeas petition is entitled to equitable tolling due to “a set of rare and extraordinary circumstance[s].” [Dkt. 20 at 4.] First, Petitioner claims that after his conviction a corrections officer confiscated, lost or destroyed his legal work. Petitioner next argues that his appellate counsel failed to correspond or inform him of replies, decisions, and orders. Petitioner further argues that he exercised his due diligence and continuously sought to obtain transcripts. Finally, Petitioner argues that COVID-19-related measures also contributed to his delay. None of these circumstances warrants equitable tolling.
Petitioner's first argument is that a corrections officer “confiscate[d], los[t] or destroy[ed]” his “legal work.” [Dkt. 20 at 6.] The Second Circuit has held that intentional confiscation of legal papers can be the basis for equitable tolling, at least where the confiscation occurs shortly before the deadline. Valverde v, Stinson, 224 F.3d 129 (2d Cir. 2000). But “[i]f 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.” Id. at 134. Here, Petitioner apparently lost certain legal paperwork in or about June 2017, well before his direct appeal was perfected in January 2018. [See Dkt. 20 at 20.] Thus, there is no causal connection between any loss of Petitioner's files in June 2017 and his failure to comply, more than three years later, with a July 2020 AEDPA deadline. Petitioner is not entitled to equitable tolling based on his lost legal papers.
Petitioner next argues that he is entitled to equitable tolling because his appellate counsel failed to communicate with him regarding the progress of his direct appeal. In particular, Petitioner states that his attorney never informed him that his leave application to the New York Court of Appeals had been denied, an event which of course triggered the AEDPA limitations clock. But although Petitioner claims he only learned that his appeal was over “after the habeas corpus time expired” [Dkt. 20 at 2], the letter he submits in support of this contention shows that a clerk at the Court of Appeals informed him on or about April 20, 2020 that his leave application had been denied on April 8, 2019 [Dkt. 20 at 51]; at that point Petitioner still had more than two and a half months to submit a timely habeas petition. Once again, Petitioner fails to show a causal connection between the claimed lack of attorney communication and his failure to meet the AEDPA deadline.
Petitioner next argues that he “continuously exercised due diligence in an effort to obtain legal work/transcripts.” [Dkt. 20 at 5.] But courts routinely hold that “lack of access to legal materials or papers does not constitute an extraordinary circumstance that warrants equitable tolling.” Morales v. Bradt, 2013 WL 600176, at *4 (W.D.N.Y. Feb. 11, 2013) (collecting cases). Petitioner also fails to explain how the “legal work/transcripts” were necessary for the preparation of the Petition. Notably, the petition advances only one ground for relief, and Petitioner maintains that his “[a]ppellate counsel refused to argue this groundf,]” [Dkt. 1 at 5], signifying that Petitioner was aware of his claim-and could have presented it in a timely petition-despite his lack of access to transcripts or other materials. Petitioner has failed to show that he is entitled to equitable tolling on this basis.
Copies of unreported cases cited herein will be mailed to Petitioner as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Finally, Petitioner argues that he was prevented from filing in a timely manner due to COVID-19. Petitioner broadly alludes to prison outbreaks and shut-downs, and notes that HE served as an essential worker fabricating PPE at the facility. [Dkt. 20 at 5, 10.] But although there is no question that COVID constituted an extraordinary circumstance, a petitioner seeking equitable tolling must “proffer something, at least, about his efforts to contend” with the extraordinary circumstance. Mairs v. Fields, 2021 WL 4311140, at *2 (E.D.N.Y. 2021). Petitioner has not explained how COVID-related circumstances prevented him from submitting a timely petition, particularly given that he was able to prepare and submit a pro se coram nobis application during the same time frame. I note as well that, as in Mairs, “it is apparent from the face of the petition that it took minimal time to prepare.” Id. at *3. 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 Nelson S. Roman, 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 Roman. A copy of this Report'and Recommendation has been mailed to: .
Eryc Hairston
DIN# 16A3636
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929