Opinion
19-CV-11964(VSB)(RWL)
09-20-2021
EDDIE MOISE, Petitioner, v. LEROY FIELDS, Respondent.
REPORT AND RECOMMENDATION TO VERNON S. BRODERICK: HABEAS CORPUS
ROBERT W. LEHRBURGER, U.S. Magistrate Judge.
Eddie Moise, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in the New York State Supreme Court, New York County. Having been found guilty as a second violent felony offender, Moise received an aggregate prison term of 15 years. Respondent contends that Moise's petition should be dismissed as barred by the one-year statute of limitations governing claims for habeas relief from state court convictions. For the reasons that follow, I find that the Respondent is correct and recommend that the petition be DISMISSED as untimely.
Background
A. The Conviction And Sentence
On May 17, 2011, following a jury verdict, a New York trial court convicted Moise of three counts: criminal possession of a weapon in the second degree, criminal sale of a firearm in the third degree, and unlawful possession of ammunition. The trial court sentenced Moise as a second violent felony offender to an aggregate prison term of 15 years. That conviction was reversed on the grounds that Moise's right to a public trial had been violated. A new trial began on April 7, 2014, and a jury again found Moise guilty of all counts. On May 28, 2014, the trial court sentenced Moise to the same sentence previously imposed.
The procedural history of Moise's case is briefly set forth in The People Of The State of New York v. Moise, Index No. 4514/2010 (Sup. Ct. N.Y. Cty Sept. 19, 2019) (denying Moise's motion to vacate pursuant to N.Y. C.P.L. §§ 440.10 and 440.20) ("Moise 440 Decision"), attached to Moise's Amended Petition For Habeas Corpus (Dkt. 13) ("Amended Petition") at ECF pp.61-69.
B. Post-Trial Motions And Appeals
On direct appeal, the New York State Supreme Court Appellate Division, First Department unanimously affirmed Moise's conviction, and, on January 18, 2017, the New York State Of Appeals denied Moise's application for leave to appeal. See People v. Moise, 144 A.D.3d 491 (1st Dep't 2016), leave denied, 28 N.Y.3d 1148 (2017). Moise did not file a petition for certiorari with the United States Supreme Court.
Amended Petition at ECF p.3.
Moise filed a state habeas corpus petition on September 3, 2018. The state court denied the petition, finding that Moise's should have raised his arguments on direct appeal or in a motion to vacate pursuant to N.Y.C.P.L. § 440. The state appellate court affirmed, and the New York Court Of Appeals denied leave to appeal on March 4, 2020. See People ex re. Moise v. Coveny, 175 A.D.3d 1693 (3d Dep't 2019), leave denied, 34 N.Y.3d 912 (2020).
Declaration of Michelle Maerov in support of motion to dismiss petition for a writ of habeas corpus (Dkt. 26) ("Maerov Decl.") ¶ 3 and Ex. B.
See People ex re. Moise v. Coveny, Index No. 2018-2085 (Sup. Ct. Chemung Cty Dec. 17, 2018), attached to Amended Petition at ECF pp.55-56.
By motion dated January 16, 2019, Moise, acting pro se, moved to vacate his conviction in state court pursuant to N.Y. C.P.L. § 440.10. His cover letter to that motion, which is otherwise typed, bears a handwritten notation “Please be advised I am resubmitting because I did not sign or get page 25 notarized.” On September 19, 2019, the state court denied Moise's § 440 motion. As discussed below, Moise asserts that he initially tried to file his § 440 motion on April 30, 2018.
Maerov Decl. Ex. C.
Maerov Decl. ¶ 4 and Ex. E.
Amended Petition at ECF 49.
C. Proceedings Before This Court
Moise commenced this habeas proceeding when he mailed his petition on December 10, 2019. On April 17, 2020, the Court asked Moise to show cause why his petition should not be dismissed due to Moise's apparent failure to comply with the one-year statute of limitations period applicable to habeas corpus actions filed under 28 U.S.C. § 2254. Moise filed his response on May 21, 2020. Moise asserted that his petition was timely due to statutory tolling of the limitations period, and, even if the petition were untimely, the court should accept it because Moise is actually innocent.
Dkt. 1.
Dkt. 8.
Dkt. 10.
On October 22, 2020, the Court ruled that Moise's petition was untimely and unexhausted and granted Moise leave to file an amended petition to address those deficiencies. Moise filed his Amended Petition on November 5, 2020. The Amended Petition advances four grounds for habeas relief: (1) the state court lacked jurisdiction because the prosecution used a gun that had been seized on August 25, 2010 to prosecute Moise for selling a gun on September 10, 2010; (2) the prosecution engaged in misconduct in that the prosecutor knowingly used a firearm from an uncharged crime; (3) the jury was not comprised of impartial jurors; and (4) Moise is actually innocent in that he could not have sold a gun on September 10, 2010, that was in police custody on August 25, 2010. Moise also included allegations as to why his petition should not be barred by the one-year statute of limitations on federal habeas claims challenging state convictions.
Dkt. 12.
Amended Petition.
D. The Instant Motion To Dismiss
On May 12, 2021, Respondent filed the instant motion to dismiss. Moise filed an opposing brief on June 2, 2021, followed by several additional filings essentially reiterating the same arguments. Respondent did not submit a reply.
Dkt. 25.
Dkt. 30, 32, 33, 35.
Respondent asserts that the one-year statute of limitations expired on April 18, 2018, but that Moise did not file his petition until December 10, 2019, more than a year after Moise's conviction became final. Respondent argues that Moise did not timely file a proper § 440 motion or state habeas petition that would have tolled the statute of limitations. Respondent also argues that there is no new evidence to support Moise's assertion of actual innocence.
Dkt. 27.
Moise contends that the statute of limitations for filing his petition was tolled by virtue of his filing his § 440 motion before the statute of limitations expired and by his filing a state court habeas corpus petition. Moise asserts that he “dropped” his § 440 motion on “Monday April 30.” Although Moise does not specify the year, the year must be 2018 as the last April 30 to fall on a Monday was from that year. Indeed, an attachment to the petition includes a signature page signed by Moise and dated April 30, 2018, on which Moise's annotation states that he mailed the § 440 motion on April 30, 2018.
Amended Petition at ECF p.14.
The Court takes judicial notice of the calendars for years 2016-2019.
Amended Pet. at ECF p.49. In his earlier response to the Court's order to show cause regarding timeliness, Moise asserted that he placed his § 440 motion in the mailbox at the prison where he was then housed, Wende Correctional Facility, “in the early parts of April 2017”. The signature page submitted by Moise confirms that the actual date was April 30, 2018.
According to Moise, the motion was returned to him for lack of postage. On a later unspecified date, Moise “resubmitted the same package same postage and it was mailed out.” But Moise's petition was returned once again because “I never got it notarized.” Having twice had his § 440 motion returned, Moise decided not to file a corrected motion. Instead, he filed a state habeas petition. Moise purportedly encountered difficulties in processing his state court filings because Elmira Correctional Facility was locked down for 40 days and because he could not locate a notary.
Dkt. 10 at ECF p.3.
Dkt. 10 at ECF p.3.
Amended Petition at ECF p.49; see also Maerov Decl. Ex. C (Moise's cover letter to § 440 motion submitted January 16, 2019, stating that Moise was resubmitting the motion because he did not sign or get it notarized). In his earlier response to the Court's order to show cause regarding timeliness, Moise asserted that the petition was returned in June 2018 because it lacked an affidavit of service. (Dkt. 10 at ECF p.4.)
Dkt. 10 at ECF p.4.
Dkt. 10 at ECF p.5; see also Amended Petition at ECF pp.13-15 (referring to Moise's attempts to get help from lawyers and others, and unspecified difficulties with “access and notary”). Records submitted by Respondent indicate that Moise was incarcerated at Elmira Correctional Facility from April 6 to June 16, 2015, and June 22, 2018 to August 23, 2019. He appears to have been incarcerated at Five Points much of the time in between those dates and was at Wende during all of April 2018. (Maerov Decl. ¶ 13 n.1 and Ex. F.)
In support of his claim that he initially tried to file his § 440 motion in April 2018, Moise submitted a letter from his appellate counsel. The letter is dated June 18, 2018 and acknowledges receipt of Moise's § 440.10 motion and its exhibits. In the letter, counsel noted that he had investigated Moise's § 440 claims while preparing Moise's earlier appeals and had not been able to find supporting documentary evidence. Counsel turned down Moise's request for “support and assistance” with the motion.
Dkt. 10 at ECF p.8.
As for his claim of actual innocence, Moise argues that he was the victim of fraudulent police and prosecutor conduct. Moise had been charged and convicted for selling a Hi-Point brand gun and ammunition on September 10, 2010 to an undercover police officer. Evidence also showed that Moise sold a Cobra brand gun to an undercover officer on August 25, 2010, but that sale was not the subject of the charge filed or for which he was convicted. Ballistics evidence at trial included a firearms analysis report, ammunition analysis report, and firearm inventory notes, each referring to the Hi-Point gun but identifying the “date of occurrence” as August 25, 2010. Because the police already had custody of the gun that was tested on August 25, 2010, Moise argues that it could not be the gun sold on September 10, 2010. In opposing Moise's § 440 motion, the government explained that the August date on the Hi-Point ballistics reports was an error and that evidence of the separate sale of the Cobra gun was presented in rebuttal testimony.
See Moise 440 Decision at ECF p.65 (referring to government's rebuttal evidence at trial).
Amended Pet. at ECF pp.19-20 (firearm analysis report and inventory notes), 24 (ammunition analysis report).
Maerov Decl. Ex. D at 9-10; see Moise 440 Decision at ECF p.65 (referring to government's rebuttal evidence about Moise's earlier sale of a Cobra gun).
As new evidence supporting his innocence, Moise points to claims of police misconduct from malicious prosecution lawsuits that included certain police officers and district attorney personnel who purportedly also were involved in Moise's case. In the principal case cited by Moise, the Second Circuit affirmed the district court's grant of summary judgment in favor of the police defendants. Rios v. City Of New York, No. 14-CV-894, 2016 WL 9022590 (S.D.N.Y. May 17, 2016), aff'd, 687 Fed.Appx. 88 (2d Cir. 2017).
Dkt. 10 at ECF pp.26-29.
The filings of a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers; accordingly, the Court construes Moise's petition liberally “to raise the strongest arguments” it suggests. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007); Triestman v. Federal Bureau Of Prisons, 470 F.3d 471, 472 (2d Cir. 2006). At the same time, however, the pro se status of petitioner such as Moise “does not exempt [that] party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477.
Respondent argues that the petition should be dismissed because it is time-barred. Having reviewed the record, the Court agrees that the petition is untimely, that the statute of limitations was not tolled, and that Moise has not presented sufficient evidence of innocence that would forestall the consequences of filing after the one-year statute of limitations expired.
A. Moise Filed The Petition After The Limitations Period Expired
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides a remedy for a state prisoner to petition for a writ of habeas corpus when his continued custody is in violation of federal law. See 28 U.S.C § 2254(a); Harrington v. Richter, 562 U.S. 86, 97, 131 S.Ct. 770, 783 (2011) (“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by [AEDPA]”). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, ” however, “the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10-CV-4160, 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013).
One of those procedural requirements is the statute of limitations. The statute of limitations to file a habeas petition for a prisoner seeking relief from a state court judgment is one year. 28 U.S.C. § 2244(d)(1). The one-year filing period begins on the latest of four dates: (1) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) 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; (3) 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 (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D).
In this case, the first subsection, 28 U.S.C. § 2244(d)(1)(A), determines the commencement of the one-year statute of limitations. Nothing in the petition or the record suggests that another provision would apply. To satisfy the statute of limitations, Moise therefore must have filed his petition within one year from the date on which the state court judgment became final.
A conviction becomes final under the AEDPA by virtue of the exhaustion of all direct appeals or expiration of the time period for filing such direct appeals. 28 U.S.C. § 2244(d)(1)(A); see Anderson v. O'Gara, No. 01-CV-5712, 2002 WL 1633917, at *3 (S.D.N.Y. July 23, 2002). When, as here, the Court of Appeals denies leave to appeal and the petitioner does not seek a writ of certiorari from the United States Supreme Court, the judgment of conviction becomes final 90 days after the denial of leave to appeal. See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005); Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) (“a petitioner's conviction becomes final for AEDPA purposes when his time to seek direct review in the United States Supreme Court by writ of certiorari expires”) (internal quotation marks and brackets omitted).
The 90-day period is drawn from the time to file for certiorari in the Supreme Court. A party has 90 days in which to file a petition for a writ of certiorari requesting review of a state court decision. Sup. Ct. R. 13(1); Bowles v. Russell, 551 U.S. 205, 212, 127 S.Ct. 2360, 2365 (2007); Saunders v. Senkowski, 587 F.3d 543, 547-548 (2d Cir. 2009).
Here, the New York Court of Appeals denied Moise's leave for appeal on January 18, 2017, and Rodriguez did not seek Supreme Court review. Rodriguez's court conviction thus became final 90 days later, on April 18, 2017, when the window for seeking certiorari expired. 28 U.S.C. § 2244(d)(1)(A); see Williams, 237 F.3d at 151; Feliciano v. Lee, 18-CV-9591, 2020 WL 5076865, at *6-7 (S.D.N.Y. Aug. 26, 2020). If Moise wanted to timely file a habeas petition in federal court, he therefore had to file no later than April 18, 2018. Moise did not, however, properly file his petition until December 10, 2019, more than a year-and-a-half after the deadline passed. Moise's petition thus is barred by the statute of limitations unless an exception applies. As discussed next, none of the possible exceptions - statutory tolling, equitable tolling, or proof of actual innocence - helps Moise.
B. Statutory Tolling Does Not Save Moise's Petition
AEDPA contains a tolling provision providing that “[t]he time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). “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).
Moise references two events that allegedly trigger the statutory tolling provision: his § 440 motion and his state court habeas petition. Neither filing, however, tolled the limitations period that expired on April 18, 2018. That is because Moise did not file each until after expiration of the period. In order to toll the statute of limitations, a state court collateral motion must be pending during the limitations period; a state court collateral action filed after the period has expired has no tolling effect. See, e.g., Diaz v. Kelly, 515 F.3d 149, 152 (2d Cir. 2008) (“Because his one year statutory filing period had already expired, this subsequent state court collateral attack does not toll the federal limitations period”); Pleasant v. Capra, No. 16-CV-9842, 2018 WL 9539170, at *5 (S.D.N.Y. Aug. 1, 2018) (“Put simply, tolling extends the time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired”), R. & R. adopted, 2018 WL 9539116 (S.D.N.Y. Sept. 6, 2018); Mears v. Graham, No. 13-CV-8737, 2014 WL 4060022, at *9 (S.D.N.Y. Aug. 14, 2014) (finding that the limitations period cannot be statutory tolled where motions were filed after the AEDPA expiration) (collecting cases).
Moise cites two cases supporting the proposition that collateral review triggers statutory tolling. (Dkt. 33 at ECF p.1 (citing Wall v. Kholi, 562 U.S. 545, 131 S.Ct. 1278 (2011); Collins v. Ercole, No. 08-CV-7636, 2010 WL 11507380 (S.D.N.Y. March 19, 2010)). Neither case, however, supports application of statutory tolling here. In Wall, the petitioner filed two state court motions before the limitations period had expired, whereas here Moise filed his collateral motion after the period had expired. See 562 U.S. at 548-49, 131 S.Ct. at 1282. In Collins, the court held that petitioner did not qualify for either statutory or equitable tolling. 2010 WL 11507380 at *3-4.
Only a “properly filed” collateral challenge to a judgment of conviction can toll the statute of limitations. 28 U.S.C. § 2244(d)(2). “An application is ‘properly filed' if it is ‘an application for post-conviction relief recognized as such under governing state procedures, and ‘when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.'” Paul v. Conway, No. 04-CV-9493, 2005 WL 2205644, at *2 (S.D.N.Y. Sept. 9, 2005) (first quoting Adeline v. Stinson, 206 F.3d 249, 251-52 (2d Cir. 2000), then quoting Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 363 (2000)).
The Paul opinion inadvertently omitted a word from its citation of Artuz; the quotation has been revised to match the original without use of brackets.
Moise did not file his state habeas petition until September 2018. As that filing occurred more than four months after the limitations period expired, it could not have triggered the statutory toll. The same is equally true of Moise's § 440 motion. Moise did not properly file his § 440 motion until January 15, 2019, which was more than eight months after the limitations period had expired. His earlier attempts to file all failed due to procedural missteps, including Moise's failure to apply the proper postage and obtain notarization. Moreover, by Moise's own admission, he did not first attempt to file his motion until April 30, 2018, which was twelve days after expiration of the limitations period. Accordingly, Moise's filing of neither his § 440 motion nor his state habeas petition tolled the statute of limitations.
Maerov Decl. Ex. B.
Respondent cites law acknowledging a conflict as to whether even a properly filed state habeas petition can toll the statute of limitations. (Dkt. 27 at 5.) The Court does not address that issue but instead accepts for argument's sake that a properly filed habeas petition may trigger statutory tolling.
Maerov Decl. Ex. C.
Dkt. 10 at ECF pp.3-4; Amended Petition at ECF p.49.
Amended Petition at ECF p.49.
C. Equitable Tolling Also Does Not Apply
In Holland v. Florida, the Supreme Court found that the AEDPA limitations period “is subject to equitable tolling in appropriate cases.” 560 U.S. 631, 645, 130 S.Ct. 2549, 2560 (2010). Equitable tolling permits a court to entertain an otherwise untimely habeas petition if the petitioner establishes: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id.at 649, 130 S.Ct. at 2562 (internal quotation marks omitted). The Second Circuit has noted that “[a]s a general matter, we set a high bar to deem circumstances sufficiently ‘extraordinary' to warrant equitable tolling.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011). “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). The petitioner bears the burden of establishing entitlement to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418125 S.Ct. 1807, 1814 (2005).
Moise does not explicitly invoke equitable tolling, but, liberally construed, his petition and opposing papers make several factual assertions offered as explanation for delays in filing. In particular, Moise claims that his efforts to file his habeas petition were hampered by (1) a 40-day lockdown at Elmira Correctional Facility, (2) difficulties in locating a notary, and (3) his pro se status and failed efforts to obtain the assistance of an attorney. Whether considered separately or together, none of those circumstances entitle Moise to equitable tolling.
See Dkt. 10 at ECF p.5; Amended Complaint at ECF p.14.
To begin, Moise's claim that a 40-day lockdown at Elmira prevented him from filing his habeas petition on time has no merit as he was not housed at Elmira during the limitations period. To qualify for equitable tolling, a petitioner must show that the extraordinary circumstance prevented the petitioner from timely filing. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (there must be a “causal relationship between the extraordinary circumstances ... and the lateness of [petitioner's] filing”). “It is therefore incumbent upon a petitioner to establish that the extraordinary circumstances existed during the AEDPA's limitations period.” Artis v. Huliahn, No. 09-CV-9893, 2012 WL 555149, at *3 (S.D.N.Y. Jan. 30, 2012), R. & R. adopted, 2012 WL 555659 (S.D.N.Y. Feb. 21, 2012); see also Victoriale v. Burge, 477 F.Supp.2d 652, 655 (S.D.N.Y. 2007) (denying request for equitable tolling because the petitioner “d[id] not demonstrate that he was incapacitated for any time period during the year in which he was to file his petition with the Court”).
The lockdown to which Moise refers could not have occurred during the one-year limitations period applicable to his filing a petition. Moise's one-year limitations period ran from April 18, 2017 to April 18, 2018. But Moise was not housed at Elmira at any time during that period. Rather, he was housed at Elmira before the limitations period, between April 6 and June 16, 2015, and after the limitations period, from June 22, 2018, to August 23, 2019. Accordingly, obstacles to filing that may have existed at Elmira bear no causal relationship to the lateness of Moise's filing and are irrelevant to a determination of whether Moise is entitled to equitable tolling.
See Maerov Decl. Ex. F.
Moreover, “[i]n general, 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.” Alvarez v. United States, No. 14-CV-2491, 2019 WL 1428350, at *5 (S.D.N.Y. March 29, 2019) (quoting Corrigan v. Barbery, 371 F.Supp.2d 325, 330 (W.D.N.Y. 2005)). Thus, even if Moise had been at Elmira during the relevant period, the lockdown would not be an extraordinary event.
For the same reason, Moise's claim that he was unable to secure services of a notary, even if true, also does not qualify as an extraordinary circumstance. See Criss v. Superintendent, Elmira Correctional Facility, No. 9:19-CV-1513, 2020 WL 7053563, at *4 (N.D.N.Y. Dec. 2, 2020) (“typical difficulties attendant to prison life, such as … inability to locate a notary … do[es] not rise to the level of extraordinary circumstances justifying the application of equitable tolling”); Wood v. Conway, No. 08-CV-8377, 2010 U.S. Dist. LEXIS 143415, at *20 (S.D.N.Y. May 12, 2010) (“In the absence of any allegation that prison officials intentionally prevented Wood from getting his petition notarized, his inability to see a notary appears to be a common hardship experienced by many other inmates, and thus not an extraordinary circumstance.”).
Moise provides no detail of the circumstances of any instance in which he attempted to secure services of a notary but could not. For instance, Moise does not provide any dates or description of anyone he approached to obtain notarization.
Nor does Moise's contention that, as a layperson, he struggled to assemble a petition qualify as an extraordinary circumstance. It is well settled that “pro se status does not in itself constitute an extraordinary circumstance meriting tolling.” Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004) (citing Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). Similarly, Moise's unsuccessful efforts to persuade his appellate counsel (or any other attorney for that matter) to assist him with his CPL § 440.10 motion is not an extraordinary circumstance. Courts in this District have routinely denied equitable tolling when a petitioner claims extraordinary circumstances based on lack of access to insufficient legal resources. See Wen Liu v. Mount Sinai School Of Medicine, No. 09-CV-9663, 2012 WL 4561003, at *5 (S.D.N.Y. Sept. 24, 2012) (petitioner's inability to afford an attorney is alone not an extraordinary circumstance), aff'd, 559 Fed.Appx. 106 (2d Cir. March 26, 2014); Lora v. United States, No. 07-CV-6936, 2007 WL 4966776, at *3 (S.D.N.Y. Nov. 21, 2007) (“it is well-settled that neither a defendant's purported unfamiliarity with the legal process nor his lack of representation during the applicable filing period merit[ ] equitable tolling”) (internal quotation marks), R. & R. adopted, 2008 WL 577174 (S.D.N.Y. March 3, 2008); see also Martinez v. Kuhlmann, No. 99-CV-1094, 1999 WL 1565177, at *5 (S.D.N.Y. Dec. 3, 1999) (collecting cases), R. & R. adopted, 2000 WL 622626 (S.D.N.Y. May 15, 2000).
Additionally, Moise has provided no proof that he even attempted to engage counsel during the limitations period. The letter from appellate counsel post-dates the expiration of the one-year period, and Moise provides no proof that he contacted counsel during the limitations period. Moise also has not provided any proof that appellate counsel did anything to cause the untimely filing. To the contrary, counsel apparently had no actual or desired role with respect to the instant petition, having turned down Moise's request for assistance. Cf. Dillon, 642 F.3d at 363-364 (equitable tolling applied where attorney “affirmatively and knowingly misled” petitioner that attorney would file on time); Baldayaque v. United States, 338 F.3d 145, 150-53 (2d Cir. 2003) (attorney willfully ignored his client's explicit instruction to file his habeas petition).
Dkt. 10 at ECF p.8.
In short, Moise has not established any basis for equitable tolling.
D. Actual Innocence
Nor has Moise provided sufficient evidence of actual innocence. A habeas petitioner may be able to overcome the bar posed by the statute of limitations based on convincing proof of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 386-87, 133 S.Ct. 1924, 1928 (2013). A claim of actual innocence must be both “‘credible' and ‘compelling.'” Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir.2012) (quoting House v. Bell, 547 U.S. 518, 522, 537-38, 126 S.Ct. 2064, 2068, 2078 (2006)). A claim is “credible” if it is supported by “new reliable evidence ... that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865 (1995); accord House, 547 U.S. at 537, 126 S.Ct. at 2077; Doe v. Menefee, 391 F.3d 147, 161-62 (2d Cir. 2004). For the claim to be “compelling, ” the petitioner must demonstrate that “more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” House, 547 U.S. at 538, 126 S.Ct. at 2077. This “standard is ‘demanding and permits review only in the extraordinary case.'” Rivas, 687 F.3d at 542 (quoting House, 547 U.S. at 538, 126 S.Ct. at 2077); see also McQuiggin, 569 U.S. at 386-87, 133 S.Ct. at 1928 (“tenable actual-innocence gateway pleas are rare”).
Moise comes nowhere close to meeting the requisite threshold. Moise contends that the police fabricated the charge that an undercover police officer bought a Hi-Point gun from Moise on September 10, 2010. As support for his claim of actual innocence, Moise relies on: (1) the police ballistics paperwork erroneously identifying the “date of incident” as August 25, 2010, rather than September 10, 2010, the date of the charged gun sale; and (2) claims advanced in civil rights lawsuits, none of which involved Moise, calling into question the credibility of law enforcement personnel, including officers involved in Moise's case. None of that evidence is credible and compelling proof of Moise's actual innocence.
First, the ballistics evidence is not new evidence. As it is not “new, ” the ballistics evidence relied on by Moise cannot serve as a basis for a claim of actual innocence. See, e.g., Bishop v. Lilley, No. 17-CV-7625, 2018 WL 8579821, at *6 (S.D.N.Y. Oct. 12, 2018) (still photos from video introduced at trial was not new evidence for purposes of actual innocence claim), R. & R. adopted, 2019 WL 1417124 (March 28, 2019); Lowe v. Bradt, No. 12-CV-793, 2014 WL 3490366, at *12 (E.D.N.Y. July 11, 2014) (evidence provided to counsel in advance of trial was not “new” evidence capable of supporting actual innocence claim); Colon v. Superintendent, No. 12-CV-321, 2013 WL 1785531, at *7 (N.D.N.Y. Apr. 25, 2013) (“If the exculpatory statements were available to the hearing officer at the time of the hearing, they are not ‘new evidence' for the purposes of an actual innocence claim”).
Moise 440 Decision at ECF p.63 (claim that government obtained Moise's conviction by knowingly using a firearm from a previously uncharged sale was “not raised on either appeal or at either trial, despite the fact that they were either part of the record or known at the time of trial, and [Moise], despite having a factual record to make a claim, ‘unjustifiably failed to raise such ground or issue upon an appeal actually perfected by him'”) (citing N.Y. C.P.L. § 440.10(2) and (3); see also Moise 440 Decision at ECF p.65 (“The defendant had possession of this [ballistics] paperwork at the time of his first and second trial, but fails to explain why this argument was never brought up during the trial”); Moise 440 Decision at ECF p.65 (evidence regarding sale of guns on both August 25 and September 10 was presented at trial).
Second, even if that evidence had not been presented at trial, Moise has proffered no evidence that the August 25 date, which was the date when Moise sold the un-charged Cobra gun, referenced in the ballistics paperwork was anything other than a typographical or other inadvertent error. Nor has he proffered any evidence of police collusion to fabricate a sale that never happened.
See Moise440 Decision at ECF p.65 (“the defendant's claim that the conviction was obtained through fraudulent use of an uncharged weapon is without merit”).
Third, the civil rights lawsuits Moise invokes have no probative value here. Those cases are factually unrelated to Moise's case. In Rios, summary judgment was granted against the plaintiff and in favor of the defendants. 687 Fed.Appx. at 89-91. The subjective belief of Moise and plaintiffs from unrelated cases that they were framed by the same group of officers is hardly evidence that would support a conclusion that no reasonable juror would have found Moise guilty beyond a reasonable doubt. Moise thus has not established a credible and compelling claim of actual innocence that would excuse his failure to file his habeas petition within the limitations period.
See Moise 440 Decision at ECF p.67-68 (rejecting Moise's contention that his conviction should be set aside due to other lawsuits involving the same officers and assistant district attorney).
Conclusion
For the foregoing reasons, I recommend that the petition for habeas corpus be dismissed as barred by the statute of limitations.
Deadline For Filing Objections
Pursuant to 28 U.S.C § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Vernon S. Broderick, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.