Opinion
19 Civ. 7651 (KMK)(PED)
11-18-2022
Miguel Martinez, Petitioner, v. Superintendent of Sing Sing Correctional Facility, Respondent.[1]
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Miguel Martinez (“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 from a jury trial in New York Supreme Court, Westchester County. [Diet. 1.] On February 25, 2016, Petitioner was found guilty of robbery in the first degree, robbery in the second degree, grand larceny in the fourth degree, menacing in the second degree, and criminal possession in the third degree. He was sentenced to eleven years of incarceration with five years post-release supervision for robbery in the first degree and robbery in the second degree, an indeterminate term of one and one-third years to four years for grand larceny in the second degree, and seven years of incarceration with three years post-release supervision for criminal possession of a weapon in the third degree. Petitioner is currently serving his sentence at the Sing Sing Correctional Facility in Westchester County, New York. The Petition comes before me pursuant to an Order of Reference entered on September 25, 2019. [Dkt. 5.] For the reasons set forth below, I respectfully recommend that Your Honor DISMISS the Petition.
II. BACKGROUND
The information in this section is taken from the Petition [Dkt. 1], Respondent's Answer with attached exhibits [Dkt. 11].
1. The Crime
On May 18, 2015, Manuel Quirindumbay was proceeding home after closing his deli for the day. On his way home, Petitioner grabbed him by his neck from behind and stated that he had a knife and demanded all the money that Mr. Quirindumbay had on him. Petitioner's accomplice then approached and searched Mr. Quirindumbay's pockets. Petitioner and his accomplice took $1,000 from Mr. Quirindumbay and then fled. Mr. Quirindumbay then proceeded to the police station and reported the robbery. Petitioner and his accomplice were later apprehended by the police.
2. Trial and Sentencing
Petitioner's trial began on February 18, 2016 and continued until February 25, 2016. The jury ultimately found Petitioner guilty of found guilty of robbery in the first degree, robbery in the second degree, grand larceny in the fourth degree, menacing in the second degree, and criminal possession in the third degree. On May 30, 2016, Petitioner was sentenced to eleven years of incarceration with five years post-release supervision for robbery in the first degree and robbery in the second degree, an indeterminate term of one and one-third years to four years for grand larceny in the second degree, and seven years of incarceration with three years post-release supervision for criminal possession of a weapon in the third degree. Petitioner, being improperly sentenced for criminal possession of a weapon in the third degree, was later re-sentenced on July 6, 2016.
B. Procedural History
1. The Direct Appeal
On June 20, 2017, Petitioner, through counsel, appealed his conviction to the Appellate Division, Second Department. [Dkt.l 1-7 at 30.] In his brief, Petitioner raised seven grounds for appeal. Petitioner argued: (1) the trial court erred in denying Petitioner's motion for trial order of dismissal because the evidence against Petitioner was insufficient; (2) the trial court erred in failing to suppress the videotaped recording of Petitioner's statement to the police; (3) the trial court erred by permitting inflammatory and prejudicial testimony from a detective stating that he had “countless dealings” with Petitioner; (4) the trial court erred when it permitted the prosecution to introduce prejudicial evidence to unfairly bolster the prosecution's case; (5) the trial court improperly admitted unfair and inflammatory videotape evidence against Petitioner; (6) the trial court improperly admitted hearsay testimony; and (7) Petitioner did not have effective assistance of trial counsel. [See dkt. 11-7.] The state submitted its response on September 1, 2017. [Dkt. 11-8 at 70.] Petitioner submitted a reply on September 25, 2017. [Dirt. 11-9 at 18.]
By decision dated September 12, 2018, the Appellate Division affirmed Petitioner's conviction. See People v. Martinez, 83 N.Y.S.3d 677, 679 (App. Div. 2018). The Appellate Division held that the evidence was sufficient to establish Petitioner's arrest, the evidence was legally sufficient to support the guilty verdict, the videotape was properly admitted into evidence, and the tape recording of a 911 call was properly admitted under the excited utterance exception to the hearsay rule. Id. at 679-80. The Appellate Division also determined that witness's statement that he had encountered Petitioner “countless numbers of times” was unpreserved for appellate review. Id. With respect to Petitioner's argument that the video of his interview with the detective was improperly admitted, the Appellate Division found that “[t]he defendant knowingly and voluntarily waived his Miranda rights to making his statement.” Id. at 679.
Finally, the Appellate Division rejected Petitioner's ineffective assistance of counsel claim and determined that Petitioner had received effective assistance of counsel. Id. at 680. On February 15, 2019, the Court of Appeals summarily denied Petitioner leave to appeal the Appellate Division's decision. People v. Martinez, 122N.E.3d 1122 (Table) (N.Y. 2019).
2. The Instant Petition and Petitioner's CPL § 440.10
Petitioner executed the instant Petition and delivered it to prison officials for mailing on August 3, 2019. [Dkt. 1 at 22.] The Respondent filed a response in opposition to the Petition on January 17, 2020. [Dkt. 11.] Instead of a traverse, Petitioner filed a motion to stay on May 1, 2020. [Dkt. 14.] Petitioner requested the stay in light of claims that he raised in a CPL § 440.10 motion dated April 5, 2020. [Id. at 2.] In his CPL § 440.10 motion, Petitioner argues that he was deprived of effective assistance of counsel during his plea negotiations and that he was denied his right to counsel when the court failed to conduct a minimal inquiry as to the disagreement he had with his counsel after Petitioner had requested a substitution of counsel. [Id. at 8-12.] Respondent did not submit an opposition to Petitioner's motion to stay. Accordingly, I granted Petitioner's motion to stay on September 9, 2020. [Dkt. 16.] In granting Petitioner's motion to stay, I required Petitioner to move within 30 days of the resolution of his CPL § 440.10 motion to lift the stay and cautioned that failure to do so may result in the dismissal of his habeas petition. [Id.]
The state filed its opposition to Petitioner's CPL § 440,10 motion on August 4, 2021. [Dkt, 21-2 at 8.] On September 24, 2021, the Supreme Court of Westchester County denied Petitioner's CPL § 440.10 motion. [Dkt. 21-3 at 1.] The court found that Petitioner's argument that he did not receive effective assistance of counsel was “not supported by any facts” and “conclusory in nature.” [Id. at 2.] With respect to Petitioner's argument that he was denied his right to counsel, the court determined that Petitioner failed to show “good cause” for the trial court to substitute counsel or conduct any further inquiiy prior to denying his motion for new counsel. [Id. at 4.] Petitioner did not seek leave to appeal the decision to the Appellate Division within the requisite amount of time.
On June 29, 2022, this Court issued an order directing the parties to advise this Court regarding the status of Petitioner's CPL § 440.10 motion. [Dkt. 18.] That day, Respondent filed a letter informing the Court that Petitioner's CPL § 440.10 had been denied on September 24, 2021 and requesting that the Court lift the stay. [Dkt. 19.] Petitioner did not submit a response to the Court's order. On September 8, 2022, Respondent submitted a letter that included the record from Petitioner's CPL § 440.10 motion. [Dkt. 21.] On September 30, 2022, this Court issued an order to show cause that required Petitioner to respond to the order within 30 days and explain why he had not comply with the order that granted his stay. [Dkt. 22.] Petitioner was allowed 30 days to respond, but failed to submit a response within the requisite time and to date has not filed any response on the docket.
III. APPLICABLE LAW
A. Timeliness Requirement
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, “[consistent 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.”).
B. Non-Compliance with “Stay and Abeyance” Order
Where appropriate, a district court may use a “stay and abeyance” technique when confronted with a habeas petition that presents both exhausted and unexhausted claims, also known as a “mixed” habeas petition. See Rhines v. Weber, 544 U.S. 269, 276-77 (2005). The purpose of the stay is to allow a petitioner to exhaust their unexhausted claims in state court before returning to federal court. See id. at 277. Nonetheless, in the instance where a stay is granted, it must be appropriately conditioned to limit the amount of time to initiate the exhaustion procedure and the amount of time to return to federal court after completion of the exhaustion procedure. Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001). In the instance where “either condition of the stay is not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed (unless the time the petitioner has taken to initiate exhaustion in the state courts and to return to federal court after exhaustion has not consumed more than the portion of the one-year limitations period that remained when the habeas petition was initially filed),” Id.
IV. ANALYSIS
A. The Petition Is Untimely
Petitioner failed to comply with the condition of the stay, and has not responded to an order directing him to show cause for his failure to do so.
This Court's Order granting the stay explicitly provided that upon resolution of Petitioner's CPL § 440.10 motion, “Petitioner must move, within thirty (30) days, to lift the stay and reopen this case for further proceedings.” [Dkt. 16.] The Order also cautioned Petitioner that if he did not “comply with this condition of the stay, the Court may vacate the stay nunc pro tunc as of the date the stay was entered and may dismiss his habeas petition.” [AZ] Petitioner's CPL § 440.10 motion was denied by the Supreme Court of Westchester County on September 24, 2021. [Dkt. 21-3 at 4.] Petitioner did not move to appeal the denial of his CPL § 440.10 motion. Accordingly, Petitioner had until October 25, 2021 to notify this Court that his state court proceedings had been completed, but failed to do so.
The period would have expired on Sunday, October 24, 2021, but the next business day was Monday, October 25, 2021.
On June 29, 2022, noting that the stay had been in effect for a substantial period of time, this Court entered an Order directing the parties the advise the Court as to the “status of Petitioner's § 440.10 motion and whether the stay should be lifted.” [Dkt. 18.] Petitioner did not respond to the Order, whereas Respondent reported that the Petitioner's motion had been denied nearly a year earlier, on September 24, 2021, and had not been appealed. [Dkts. 19, 21.] On September 30, 2022, this Court issued an Order to Show Cause, directing Petitioner to show cause within 30 days why dismissal was not warranted under the terms of the stay. [Dkt. 22.] To date, Petitioner has not responded to that Order.
Because Petitioner failed to comply with the order granting his stay, this Court vacates the stay mine pro tunc. See Zarvela, 254 F.3d at 381; see also Taylor v. Brown, 2009 WL 400365, at *3 (S.D.N.Y. Jan. 30, 2009), report and recommendation adopted 2009 WL 2448587 (S.D.N.Y. Aug. 11, 2009) Because more time has elapsed “than the portion of the one-year limitations period that remained when the habeas petition was initially filed[,]” Zarvela, 254 F.3d at 381, Petitioner's habeas petition has been “rendered untimely filed.” Taylor, 2009 WL 400365, at *3.
Copies of all unpublished cases available only in electronic form cited herein have been mailed to petitioner. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
Petitioner was convicted on February 25, 2016 in the Supreme Court of Westchester County. The Appellate Division, Second Department affirmed Petitioner's conviction on September 12, 2018 and the Court of Appeals denied Petitioner leave to appeal on February 15, 2019. See Martinez, 83 N.Y.S.3d at 679, leave denied 122 N.E.3d 1122 (Table). Therefore, Petitioner's conviction became final on May 16, 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). On August 3, 2019, 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). Accordingly, when Petitioner filed his Petition, only 79 days had elapsed and as a result, he had 286 days remaining before his AEDPA limitations period expired. This Court entered the stay on September 9, 2020. [Dkt. 16.] As the Court has now vacated the stay mine pro time to that date, and more than two years have elapsed in the interim, it is apparent that the one-year AEDPA limitations period, 28 U.S.C. § 2244(d)(1), has expired.
B. Petitioner Is Not Entitled to Statutory or Equitable Tolling
As noted above, the AEDPA one-year limitation period can be tolled. One way that the AEDPA limitations period can be tolled is if there is a state postconviction motion pending. See 28 U.S.C. § 2244(d)(2). Petitioner indeed presently has a motion for resentencing pursuant to CPL § 440.47 pending before the Supreme Court of Westchester County. [Dkt. 21-4 at 1.] However, Petitioner filed that motion on August 1, 2022, well after the expiration of his 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 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) (emphasis added). Therefore, Petitioner is not entitled to statutory tolling due to his pending CPL § 440.47 motion.
The AEDPA limitations period will also be tolled for “rare and exceptional” circumstances. Smith, 208 F.3d at 17. These circumstances entitle a petitioner to equitable tolling. In order to prevail under equitable tolling, a petitioner must show “that extraordinary circumstances prevented him from filing his petition on time” and that he acted with “reasonable diligence throughout the period he seeks to toll.” Smith, 208 F.3d at 17. Despite this Court's request for a status update on June 29, 2022, and subsequent Order to Show Cause on September 30, 2022, Petitioner has failed to communicate with this Court. Accordingly, Petitioner has not profferred any explanation for his failure to return to this Court, much less one that would justify equitable tolling. Further, given Petitioner's failure to communicate with this Court, this Court would be hard-pressed to find that Petitioner has acted with diligence. Therefore, I conclude, and I respectfully recommend Your Honor conclude, that Petitioner is not entitled to either statutory or 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 Kenneth M. Karas, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Sheet, 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 Karas. A copy of this Report and Recommendation has been mailed to:
Miguel Martinez #16A1392 Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562