Opinion
21-cv-7190 (CS) (AEK)
05-03-2022
EDUARDO NAJERA, Petitioner, v. LYNN J. LILLEY, Superintendent, Respondent.
TO: THE HONORABLE CATHY SEIBEL, U.S.D.J.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE, United States Magistrate Judge.
On August 19, 2021, Petitioner Eduardo Najera (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his judgment of conviction for first-degree rape. See ECF No. 1 (“Petition”). On February 9, 2022, Respondent moved to dismiss the Petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that it is time-barred under 28 U.S.C. § 2244(d)(1). ECF Nos. 16, 17.
Pursuant to the prison mailbox rule, see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), a habeas petition is deemed filed as of the date it was given to prison officials for mailing. See Petition at 17 (citing to ECF page number).
ECF Nos. 16 and 17 are identical documents.
For the reasons that follow, I respectfully recommend that Respondent's motion to dismiss be GRANTED and that the Petition be dismissed with prejudice.
BACKGROUND
Since the issue presented by the motion to dismiss is whether the Petition was timely filed, the Court recounts here only the procedural history, including the relevant dates, related to Petitioner's criminal proceedings.
Pursuant to a plea bargain reached at the commencement of trial, Petitioner pled guilty to first-degree rape under N.Y. Penal Law § 130.35(3). See ECF No. 18 (“Long Decl”) Ex. A (Mar. 6, 2017 Plea Transcript). On August 29, 2017, the County Court in Rockland County imposed an agreed-upon sentence of 14 years imprisonment plus 20 years post-release supervision. Long Decl. Ex. A (Aug. 29, 2017 Sentencing Transcript).
Petitioner filed a direct appeal to the Appellate Division, Second Department, and on March 6, 2019, the Appellate Division affirmed Petitioner's judgment of conviction. People v. Najera, 170 A.D.3d 753 (N.Y.App.Div. 2019) (2d Dep't). On May 28, 2019, the New York Court of Appeals denied Petitioner leave to appeal. People v. Najera, 33 N.Y.3d 1034 (2019). Petitioner did not seek a writ of certiorari from the United States Supreme Court. See Long Decl. ¶ 5.
On June 14, 2019, Petitioner filed a pro se motion to vacate the judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law. Long Decl. Ex. C. On January 3, 2020, the County Court of Rockland County denied Petitioner's § 440.10 motion. Long Decl. Ex. D. On April 7, 2020, Petitioner sought leave to appeal the denial of the motion to the Appellate Division, Second Department, Long Decl. Ex. E, and on June 26, 2020, the Appellate Division denied Petitioner's leave application, Long Decl. Ex. F; People v. Najera, 2020 WL 3549255 (N.Y.App.Div. June 26, 2020) (2d Dep't). On September 1, 2020,
The prison mailbox rule applies to Petitioner's § 440.10 motion-mislabeled by Petitioner as a § 440.30 motion-as well. See Ruiz v. Poole, 566 F.Supp.2d 336, 340 n.1 (S.D.N.Y. 2008).
In a letter to the Appellate Division dated July 27, 2020, Petitioner acknowledged having received, but misplaced, his copy of the Appellate Division's decision and requested a new one. Long Decl. Ex. G. The Appellate Division mailed him another copy on July 31, 2020, which Petitioner received and signed for on August 7, 2020. Long Decl. Exs. G, H.
Petitioner sought leave to appeal the Appellate Division's denial of his leave application to the New York Court of Appeals, Long Decl. Ex. I, and on October 22, 2020, the New York Court of Appeals denied this application, Long Decl. Ex. J; People v. Najera, 35 N.Y.3d 1114 (2020). The New York Court of Appeals order dismissing Petitioner's leave application states that “the application is dismissed because the order sought to be appealed from is not appealable under CPL § 450.90(1).” Long Decl. Ex. J. Petitioner has not sought any further state court relief. Long Decl. ¶¶ 3, 7. As noted above, on August 19, 2021, Petitioner filed the Petition. On February 9, 2022, Respondent filed the instant motion to dismiss the Petition as time-barred.
DISCUSSION
I. Applicable Law
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If a petitioner has met these threshold requirements, a federal district court may hear an application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment “only on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
AEDPA imposes a one-year limitation period for the filing of a federal habeas petition. 28 U.S.C. § 2244(d)(1). This limitation period begins to run from the latest of four possible dates: (1) the date on which the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which a government-created impediment to filing a habeas petition is removed; (3) the date on which the constitutional right asserted is initially recognized by the Supreme Court, if the right has been 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. See 28 U.S.C. § 2244(d)(1)(A)-(D).
Section 2244(d)(2) tolls the one-year limitation period for “[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 ....” 28 U.S.C. § 2244(d)(2). However, a state post conviction or collateral review application filed after the statutory limitation period has expired does not reset the one-year clock. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Thus, the tolling provision of Section 2244(d)(2) is applicable only if a petitioner's post-conviction motion was pending within the one-year limitation period for the filing of a federal habeas petition.
In “rare and exceptional circumstance[s]” the Court can equitably toll the AEDPA limitation period, allowing a petition filed outside of the one-year limitation period to be considered timely. Smith, 208 F.3d at 17 (internal quotation marks and citation omitted). To be eligible for equitable tolling, a petitioner must show that (1) extraordinary circumstances prevented him or her from filing the petition on time, and (2) the petitioner acted with reasonable diligence throughout the period he or she seeks to toll. Id.; see Holland v. Florida, 560 U.S. 631, 649 (2010).
The Supreme Court also has held that a claim of actual innocence may provide an “equitable exception” to the AEDPA limitation period. McQuiggin v. Perkins, 569 U.S. 383, 386, 392-93 (2013). This exception creates a “gateway” to habeas review despite expiration of the statute of limitations and requires a petitioner to make the same showing of actual innocence necessary to overcome a procedural bar to habeas review that was articulated in Schlup v. Delo, 513 U.S. 298 (1995), and House v. Bell, 547 U.S. 518 (2006). See McQuiggin, 569 U.S. at 386. Thus, “a claim of actual innocence must be both ‘credible' and ‘compelling.'” Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012). To be “credible,” an actual innocence claim “must be supported by ‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Id. (quoting Schlup, 513 U.S. at 324 and citing House, 547 U.S. at 537). For such a 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 [or her] guilty beyond a reasonable doubt-or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.'” Id. (quoting House, 547 U.S. at 538).
II. Timeliness and Tolling
The record in this matter demonstrates that the Petition was not timely filed, and neither equitable tolling nor the equitable exception of actual innocence applies.
A. The Petition Is Untimely
The applicable date from which to measure the one-year limitation period in this matter is the date on which Petitioner's state court conviction became final “by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Here, the New York Court of Appeals denied Petitioner's application for leave to appeal the Appellate Division's denial of his direct appeal on May 28, 2019. People v. Najera, 33 N.Y.3d 1034 (2019). Because Petitioner did not file a petition for a writ of certiorari seeking review of the New York state court decision in the United States Supreme Court, his conviction became final on August 26, 2019, 90 days after the order denying his application for leave to appeal to the New York Court of Appeals. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003).
Accordingly, Petitioner would have had until August 26, 2020 to file his habeas petition based on the date his direct appellate review was completed. But on June 14, 2019, Petitioner filed his pro se § 440.10 motion, which served to toll the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2).
The statute of limitations remained tolled until Petitioner's § 440.10 motion was fully exhausted on June 26, 2020, when the Appellate Division denied Petitioner's application for leave to appeal. Long Decl. Ex. F. “[W]ith respect to achieving final review of a 440 motion, the denial of such a motion can be appealed only to the Appellate Division; no appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division.” Finster v. Eckert, No. 18-cv-1487 (TJM), 2020 WL 1862939, at *4 (N.D.N.Y. Apr. 14, 2020) (quotation marks and brackets omitted); see Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (“Under New York law, a petitioner may seek leave to appeal a trial court's denial of a 440.10 post-conviction motion to the Appellate Division under CPL Section 450.15. However, if a justice of the Appellate Division denies a certificate for leave to appeal pursuant to New York Criminal Procedure Law Section 460.15, a petitioner may not appeal to the Court of Appeals.”) (internal citations omitted). “Thus, once the Appellate Division denied [[P]etitioner] leave to appeal the denial of his section 440.10 motion, he had reached the end of the road within the state system.” Klein v. Harris, 667 F.2d 274, 284 (2d Cir. 1981) (quotation marks omitted). “Accordingly, for purposes of calculating the tolling provision of § 2244(d)(2), AEDPA's one year statute of limitations is tolled from the date a petitioner files his [or her] 440.10 motion until the date the Appellate Division denies the petitioner leave to appeal the decision on the 440.10 motion.” Cosey, 460 F.Supp.3d at 370 (quotation marks and alterations omitted). Petitioner therefore had until June 26, 2021 to file his habeas petition-one year from June 26, 2020, when the Appellate Division denied his application for leave to appeal the denial of his 440.10 motion. The fact that Petitioner subsequently sought leave to appeal to the New York Court of Appeals the Appellate Division's denial of leave to appeal the denial of his 440.10 motion is of no moment here, because no such further review by the New York Court of Appeals was available to Petitioner. Indeed, this is reflected in the order from the New York Court of Appeals dismissing Petitioner's leave application, which states that “the application is dismissed because the order sought to be appealed from is not appealable under CPL § 450.90(1).” Long Decl. Ex. J. “An effort to exhaust state remedies by procedures that are not authorized by state law does not toll the one-year statute of limitations.” Cosey, 460 F.Supp.3d at 371 (quoting Friedman v. Rehal, 618 F.3d 142, 152 n.3 (2d Cir. 2010)).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Civil Rule 7.2 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases that are unpublished or only available by electronic database that Petitioner does not have in his possession already are being simultaneously mailed to the pro se Petitioner along with this Report and Recommendation.
Petitioner filed his habeas petition on August 19, 2021, 54 days after the limitations period expired on June 26, 2021. Thus, the Petition is untimely and must be dismissed, unless there is some basis for either equitable tolling or an equitable exception.
B. Petitioner Is Not Entitled to Equitable Tolling
In order for equitable tolling to apply, a petitioner must show that (1) extraordinary circumstances prevented him or her from filing the petition on time, and (2) he or she acted with reasonable diligence throughout the period he or she seeks to toll. Smith, 208 F.3d at 17. “The word ‘prevent' requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his [or her] filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
Here, even if the Court accepts Petitioner's argument that he was acting with reasonable diligence in exhausting his habeas claims both on direct appeal and in his § 440.10 motion, Petitioner fails to establish that any extraordinary circumstances prevented him from timely filing the Petition before the expiration of the statute of limitations. Rather, at most, it is apparent that Petitioner did not understand the law with respect to the running of the statute of limitations.
In his declaration in opposition to the motion to dismiss, Petitioner argues that the 90-day period for filing a petition for a writ of certiorari in the Supreme Court extended the start of the AEDPA one-year limitations period from June 26, 2020-i.e., the date the Appellate Division denied Petitioner's application for leave to appeal the denial of his 440.10 motion-to September 24, 2020. See ECF No. 20 ¶ 6 (“The petitioner's 90-day limitation, in accordance with 28 U.S.C.A. § 2101(c), did not begin until the Appellate [D]ivision denied his leave to appeal the properly filed 440.10 motion on June 26, 2020.”); ECF No. 25 at 2-3 (Petitioner “executed his collateral attack 440.10 Motion on (June 14, 2019) tolling the[] (90) days coupled with[] the one year statute which begins once [Petitioner's] collateral attack is fully exhausted, which [Respondent's] counsel['s] . . . own records clearly indicates (Sept 1. 2020).”). However, statutory tolling based on the time for filing of a petition for a writ of certiorari to the Supreme Court does not extend to claims raised in a post-conviction § 440.10 motion. See Holland v. Florida, 560 U.S. 631, 640 (2010) (AEDPA statute of limitations resumes running when state court completes post-conviction review); see also Barrientos v. Lee, No. 14-cv-3207 (LTS) (JCF), 2015 WL 3767238, at *8 (S.D.N.Y. June 17, 2015) (“[T]he addition of ninety days for seeking certiorari applies only to a direct appeal, not to a post-conviction motion.”). Petitioner's misunderstanding of the statutory tolling rules does not provide a basis for equitable tolling. See Barrientos, 2015 WL 3767238, at *9 (“[S]uch confusion is not unwarranted, given the maze of federal and state procedural rules that govern the running of the AEDPA's statute of limitations; however, it is not grounds for equitable tolling.”).
The statute provides that “[a]ny other appeal or any writ of certiorari intended to bring any judgment or decree in a civil action, suit or proceeding before the Supreme Court for review hall be taken or applied for within ninety days after the entry of such judgment or decree.” 28 U.S.C. § 2101(c).
Furthermore, in his letter dated March 25, 2022, Petitioner explains:
As a pro se petitioner, I was under the assumption the finality of State post conviction was when the Court of Appels [sic] denied the collateral review, [u]nder Section 2244(d)(2) because it says the one-year is tolled for the time during which a properly filed application for state postconviction or other collateral review with respect to the pertinent judgment or claim is pending. I was not aware that the October 22, 2021 date was not the finality of the case.ECF No. 22 at 1. But a misunderstanding of state court procedural requirements is not a ground for equitable tolling, as it does not constitute an extraordinary circumstance. See Jenkins v. Greene, 630 F.3d 298, 305 (2d Cir. 2010); Chettana v. Racette, No. 15-cv-0028 (MAD), 2016 WL 447716, at *9 (N.D.N.Y. Feb. 4, 2016). Petitioner is thus not entitled to equitable tolling based on his mistaken belief that the statute of limitations was tolled while he sought leave to appeal from the New York Court of Appeals in connection with his § 440.10 motion. See, e.g., Coleman v. Melecio, No. 20-cv-0105 (LEK), 2021 WL 638272, at *4 (N.D.N.Y. Feb 18, 2021); Cosey, 460 F.Supp.3d at 371-72; Burno v. Morton, No. 19-cv-2536 (JMA), 2020 WL 1031323, at *4 (E.D.N.Y. Mar. 3, 2020); Davis v. Griffin, No. 16-cv-550, 2019 WL 1384587, at *3 (W.D.N.Y. Mar. 27, 2019).
This is presumably an erroneous reference to October 22, 2020, the date on which the New York Court of Appeals denied Petitioner's application for leave to appeal the denial of his leave application on his § 440.10 motion filed with the Appellate Division.
Petitioner also suggests that he is entitled to equitable tolling since he “does not speak English, nor can fully comprehend without a Spanish interpreter, nor can he read English, more less Court law that even an English speaking individual would have difficulty in, creates [sic] a causal connection between the circumstances in having to rely on others.” ECF No. 25 at 3. But “[t]he district courts in the Southern District have unanimously found that inability to speak English and lack of familiarity with the legal system are not ‘rare and exceptional' circumstances, and thus are not grounds for equitable tolling.” Huang v. United States, No. 03-cv-3755 (RPP), 2003 WL 22272584, at *3 (S.D.N.Y. Oct. 2, 2003); see Chettana, 2016 WL 447716, at *9 (“Petitioner has not shown that either his language limitation or education level rendered him unable to pursue his legal rights during the relevant time period.”).
C. The Actual Innocence Equitable Exception Does Not Apply
Finally, Petitioner does not assert a “credible and compelling” claim of actual innocence. Petitioner does not present the Court with any “new reliable evidence.” Rivas, 687 F.3d at 541.
Rather, all he does is ask for “a chance to maintain my innocense [sic] as I tried to do throughout my state case.” ECF No. 22 at 1. Petitioner therefore cannot avail himself of this “equitable exception” to the statute of limitations.
In sum, because the Petition is untimely, and because Petitioner has not established that any kind of tolling of or exception to AEDPA's one-year statute of limitations applies, Respondent's motion should be granted, and the Petition should be dismissed with prejudice.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Respondent's motion to dismiss (ECF Nos. 16-17) be GRANTED and that the Petition be dismissed with prejudice. As the Petition presents no questions of substance for appellate review, I respectfully recommend that a certificate of probable cause should not issue. See Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). I further respectfully recommend that the Court should certify pursuant to 28 U.S.C. § 1915(a) that an appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a),(d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Cathy Seibel, United District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Seibel, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
A copy of this Report and Recommendation has been mailed to the pro se Petitioner by Chambers at his address of record on the docket as of the date of the Report and Recommendation.