Opinion
1:20-cv-10230 (PGG) (SDA)
05-06-2021
Jose Nunez, Petitioner, v. Sandra R. Danforth, Respondent.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE:
INTRODUCTION
Pro se Petitioner Jose Nunez (“Nunez” or “Petitioner”), previously incarcerated at the Ogdensburg Correctional Facility (“OCF”) in New York State, seeks a writ of habeas corpus as authorized by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Nunez was convicted, after a jury trial, of two counts of bribery in the second degree (Penal Law § 200.03); one count of conspiracy in the fourth degree (Penal Law § 105.10[1]); and thirteen counts of rewarding official misconduct in the second degree (Penal Law § 200.20). (Answer, ECF No. 24, ¶ 2.) He was sentenced to a total of three to nine years in prison. (Id.) On March 16, 2021, he was released on parole.
See N.Y. State Dep't of Corr. & Cmty. Supervision, Inmate Lookup, nysdoccslookup.doccs.ny.gov (searching on RIN “19-R-0227”) (last visited May 6, 2021). (Cf. Pet. Notice of Change of Address, ECF No. 30 (Mar. 22, 2021).) Although Nunez no longer is imprisoned, his petition nevertheless satisfies the “in custody” requirement of 28 U.S.C. § 2254(a) because he filed it while incarcerated. See, e.g., Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016). Nor has Nunez's release mooted his petition, because he presumptively remains subject to collateral consequences from the criminal conviction he challenges. See, e.g., Spencer v. Kemna, 523 U.S. 1, 7-8, 10 (1998) (“In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences.”); Sibron v. New York, 392 U.S. 40, 55 (1968) (acknowledging “obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences,” ranging from deportation to sentencing enhancements in the event of future convictions); Nowakowski, 835 F.3d at 226 (ruling that criminal conviction “subjects [petitioner] to the possibility of impeachment in a future criminal proceeding and thus presents a sufficient continuing collateral consequence to satisfy the requirements of a live case or controversy”).
In his Petition and Amended Petition, Nunez seeks habeas relief on the following grounds: (1) that Nunez was “prosecuted and tried on a theory of the crime at variance with the theory of the indictment” and that the trial court “amended the indictment” in its jury instructions, allegedly in violation of his right to due process under Fourteenth Amendment (Pet., ECF No. 1, ¶ 13 (Grounds One and Two)); (2) that the trial court gave a “highly prejudicial” definition of “public servant” in its instructions to the jury (id. (Ground Three)); (3) that the evidence at trial was insufficient to convict Nunez of any of the charges he faced (id. (Ground Four)); and (4) that the trial court's errors “stripped the Trial Court entirely of subject matter jurisdiction to prosecute and render judgment of conviction upon Petitioner as a matter of law.” (Am. Pet., ECF No. 13, at 1 (Ground Five).)
On February 12, 2021, Respondent filed an Answer to the Petition. (See Answer.) Respondent filed her opposition memorandum of law concurrently. (Opp. Mem., ECF No. 25.) On March 4, 2021, Nunez filed a motion for appointment of counsel and for an extension of time to reply. (Pet. 3/4/21 Mot., ECF No. 28.) By Order dated March 18, 2021, the Court denied Nunez's motion for appointment of counsel, but granted him an additional 30 days to file his reply. (3/18/21 Order, ECF No. 29.) On April 16, 2021, Nunez filed a reply brief and a declaration in support thereof. (Reply, ECF No. 31; Nunez Decl., ECF No. 32.)
Nunez styles his April 16 reply brief as a “Reply to Respondent's Opposition to Petition,” and his April 16 declaration as a “Reply to Respondent's Answer.” (Reply at 1; Nunez Decl. at 1.)
For the reasons set forth below, I respectfully recommend that the Petition and Amended Petition be DENIED in their entirety.
BACKGROUND
I. Facts Giving Rise To Petitioner's Conviction
According to testimony presented by the prosecution at trial, Nunez engaged in a scheme during the period September 2013 to May 2014 in which he and three attorneys- Benjamin Yu (“Yu”), Dwane Smith (“Smith”) and Jae Lee (“Lee”)-paid bribes to Luis Veras-Rodriguez (“Veras-Rodriguez”), who was an employee of the New York City Criminal Justice Agency (“CJA”). (Tr. 538-39, 544-47, 554-55, 561-62, 565, 573-77, 654-55, 739-40, 747-50, 756, 835 (Veras-Rodriguez).) The CJA was a nonprofit organization contracted by the City of New York to interview criminal defendants prior to arraignment and make recommendations to the court about whether they should be released on their own recognizance. (Tr. 69-71, 79-81, 93, 108 (CJA Director of Operations Peter Kiers); id. 534-35 (Veras-Rodriguez).)
Citations to pages of the trial transcript, which is filed at ECF No. ECF No. 26-2 (starting at PDF page 45) and ECF No. 26-3 (up to PDF page 620), are made using the prefix “Tr.” prior to the page number, e.g., “Tr. 1.” If the citation is to witness testimony, then the surname of the witness is included in parentheses after the transcript page(s), unless the context of the citation makes clear who was testifying.
As part of the scheme, Veras-Rodriguez would identify defendants with the financial means to hire counsel and would refer them to Nunez, who worked as a paralegal for Smith and, later, worked as a paralegal for Yu. (Tr. 564-66 (Veras-Rodriguez).) If a defendant ultimately retained Smith or Yu, a portion of the defendant's fee would be kicked back to Veras-Rodriguez. (Id. 554-55, 576-77, 717.) Veras-Rodriguez was paid approximately $40,000 to refer about 150 clients under this scheme. (Id. 574, 841.)
Another individual who participated in the scheme, Jae Lee (“Lee”), entered into a cooperation agreement with the New York County District Attorney's Office. (See Tr. 907-21, 930-32 (Lee).)
In May 2014, the scheme was uncovered, investigators from the New York County District Attorney's Office confronted Veras-Rodriguez about it, and he agreed to cooperate. (Tr. 184, 18889, 198-99 (Senior Investigator Patrick O'Brien (“O'Brien”)); id. 316, 318, 366-68 (Senior Investigator Edward Johnson (“Johnson”)).) Veras-Rodriguez agreed to wear a recording device when he met with other participants in the scheme, including Nunez, and he agreed to participate in recorded phone calls. (See Tr. 186, 193, 201-02, 267 (O'Brien); id. 320-21, (Johnson); id. 54142 (Veras-Rodriguez.) During the cooperation period, between June and September 2014, Nunez and his cohorts paid Veras-Rodriguez additional monies for referring clients. (See Tr. 323-25, 34547 (Johnson); id. 514-15 (Investigative Analyst Samuel Burns).)
II. Relevant State Court Proceedings
A. Indictment
On September 26, 2014, Nunez, Yu and Lee were charged in a 30-count indictment with conspiracy in the fourth degree, along with multiple counts of bribery and rewarding official misconduct. (See Indictment, ECF No. 24-14.)
B. Trial
Commencing on May 9, 2016, Petitioner and Yu were tried by jury before Justice James M. Burke. A summary of the trial testimony in the prosecution's case is set forth in Background Section I, supra. After the prosecution rested, certain stipulations were read to the jury, but neither defendant testified nor offered any other evidence as part of a direct case. (See Tr. 130716.)
C. Jury Verdict And Sentencing
The jury convicted Nunez of two counts of bribery in the second degree (Penal Law § 200.03); one count of conspiracy in the fourth degree (Penal Law § 105.10[1]); and thirteen counts of rewarding official misconduct in the second degree (Penal Law § 200.20). (Tr. 1592-95.) On August 17, 2016, Justice Burke sentenced Nunez to a total of three to nine years in prison. (Sentencing Tr. 10-11.) Specifically, Nunez was sentenced to three to nine years on the two bribery counts and to one and one-third to four years on the remaining counts, with all sentences to run concurrently. (See id.)
The sentencing transcript is filed at ECF No. 26-3 at PDF pages 621 to 631.
D. Direct Appeal
Nunez, represented by counsel, filed an appeal to the Appellate Division. As relevant here, he argued that the theory of guilt at trial, as presented in both the prosecution's proof and the trial court's instructions to the jury, impermissibly deviated from the indictment. (See App. Br., ECF No. 24-6, at 44-51.) Nunez argued that he was indicted on the theory that Veras-Rodriguez qualified as a public servant because he was a “public officer or employee” under Penal Law § 10.00(15)(a), while the trial proceeded on the theory that Veras-Rodriguez instead “exercis[ed] the functions of any such public officer or employee” under Penal Law § 10.00(15)(b). (See id.)
Nunez challenged the sufficiency of the trial evidence in two respects: (1) he argued that the evidence failed to show that Veras-Rodriguez “exercis[ed] the functions” of a public officer or employee; and (2) he argued, in the alternative, that the evidence did not prove that the payments to Veras-Rodriguez were intended to influence Veras-Rodriguez's “vote, opinion, judgment, action, decision or exercise of discretion as a public servant,” as required to convict him of bribery and conspiracy to commit bribery, because the payments were not made to influence a “governmental decision.” (See App. Br. at 52-62, 66-69; App. Reply Br., ECF No. 24-7, at 1-3.) Nunez also claimed that the trial court denied him his right to a fair trial by including “overbroad” and “highly prejudicial” language in its jury instruction defining “public servant” (See App. Br. at 62-65; App. Reply Br. at 4-7.)
In a decision dated December 20, 2018, the Appellate Division unanimously affirmed Nunez's conviction. See People v. Yu, 167 A.D.3d 521 (1st Dep't 2018). The Appellate Division held that “[t]here was no impermissible variance between the trial evidence and the indictment.” Id. at 522. The court stated: “Both the ‘public employee' and ‘exercising' theories had been submitted to the grand jury, and the indictment was compatible with both theories, except for some language in the narrative portion of the conspiracy count relating to the [Veras-Rodriguez's] status, which the court modified.” Id.
With respect to the sufficiency of the evidence, the Appellate Division held that “[t]estimonial and documentary evidence established that the CJA employee [Veras-Rodriguez] was a public servant under § 10.00(15)(b) because he exercised the functions of a public employee in interviewing arrestees and making recommendations to arraignment judges whether to release the arrestees on their own recognizance.” Yu, 167 A.D.3d at 522. The court further held:
The evidence also sufficiently established that defendants [Nunez and Yu] sought to influence the CJA employee [Veras-Rodriguez] with respect to his “vote, opinion, judgment, action, decision, or exercise of discretion as a public servant,” as required to convict them of bribery in the second degree (Penal Law § 200.03). Although the bribe was not offered to influence bail recommendations, which was the employee's primary responsibility, it was offered to influence the employee to interview and screen arrestees so as to identify those who could afford private
counsel, to make false and misleading statements to the arrestees, and to make improper referrals.Id. at 523.
Finally, with respect to the jury instruction, the Appellate Division held that, “[a]lthough the court's jury charge defining the term public servant contained some overly broad language, the court also read the statutory definition, and the charge, when viewed as a whole, conveyed the proper definition .... In any event, any error was harmless.” Yu, 167 A.D.3d at 523 (citations omitted).
On December 21, 2018, Nunez sought leave to appeal to the New York Court of Appeals, asking the Court to “consider and review all issues raised” in the Appellate Division briefs. (Leave App., ECF No. 24-9.) In a follow-up letter, dated January 18, 2019, Nunez argued more specifically that leave to appeal should be granted to review his change-in-legal-theory and sufficiency-of-the-evidence claims. (1/18/19 Ltr., ECF No. 24-10.) On May 23, 2019, the Honorable Jenny Rivera denied Nunez's application. People v. Nunez, 33 N.Y.3d 1034 (2019).
E. State Habeas Petition
On August 20, 2019, Nunez filed a petition in New York State Supreme Court seeking a writ of habeas corpus under Article 70 of the New York Civil Practice Law and Rules (“CPLR”). (State Habeas Pet., ECF No. 24-12.) In his Article 70 petition, Nunez argued that the alleged change in legal theory between indictment and trial with respect to Veras-Rodriguez's status as a public servant violated the Federal and New York State Constitutions and deprived the trial court of jurisdiction to enter judgment against him. (See id. ¶¶ 20-26.) On September 6, 2019, the state court dismissed the petition. (9/6/19 Decision, ECF No. 24-13.)
III. Federal Habeas Petition
On November 12, 2020, Nunez commenced this action by filing a federal habeas petition in the United States District Court for the Northern District of New York, the district in which the OCF is located. (See Pet. at 1.) On December 3, 2020, his Petition was transferred to the Southern District of New York (12/3/20 Dec. & Order, ECF No. 5.) In his Petition, Nunez contends that he is entitled to federal habeas relief because (1) he “was prosecuted and tried on a theory of the crime at variance with the theory of the indictment” (Ground One); (2) “[t]he indictment was amended in a manner which violated [his] right[] to due process” (Ground Two); (3) “[t]he statutory definition of a key element of the charge of bribery was impermissibly expanded by the trial court . . . in violation of [his] constitutional right[] to due process” (Ground Three); and (4) his conviction was based on insufficient evidence (Ground Four). (See Pet. ¶ 13.)
On January 5, 2021, Nunez filed an Amended Petition in which he added a fifth ground for habeas relief. (See Am. Pet.). He contends that the trial court's errors “stripped the Trial Court entirely of subject matter jurisdiction to prosecute and render judgment of conviction upon Petitioner as a matter of law.” (Id. at 1 (Ground Five).)
LEGAL STANDARDS
I. AEDPA Generally
“[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Rather, “28 U.S.C. § 2254 allows a court to entertain a habeas petition ‘only on the ground that [an individual] is in custody in violation of the Constitution or laws or treaties of the United States.'” Garner v. Lee, 908 F.3d 845, 860 (2d Cir. 2018) (quoting 28 U.S.C. § 2254(a)).
Section 2254(d) provides, in relevant part, that a court may grant a writ of habeas corpus on a claim that has been previously adjudicated on the merits by a state court only if the state court adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A claim is considered “adjudicated on the merits” when it is decided based on the substance of the claim advanced, rather than on a procedural, or other, ground. See Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Further, “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 301 (2013).
Under AEDPA, federal courts reviewing habeas petitions must accord substantial deference to state court decisions. “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A state court decision is “contrary to” clearly established federal law where the state court either applies a rule that “contradicts the governing law” set forth in Supreme Court precedent or “confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision” and arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law pursuant to this provision occurs when the state court identifies the correct governing legal principle but unreasonably applies that principle to “a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
In addition, federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with “clear and convincing evidence.” Schriro, 550 U.S. at 473-74 (quoting 28 U.S.C. § 2254(e)(1)). “A state court decision is based on a clearly erroneous factual determination if the state court failed to weigh all of the relevant evidence before making its factual findings.” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (internal quotation marks omitted).
II. Statute of Limitations
Pursuant to AEDPA, a one-year statute of limitations applies to petitions for writs of habeas corpus brought by state prisoners. 28 U.S.C. § 2244(d). Thus, AEDPA requires that habeas petitions challenging state court judgments be filed within one year of the date that a judgment becomes final.
28 U.S.C. § 2244(d)(1) provides as follows:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 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 such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the federal predicate of the claim or claims presented could have been discovered through the exercise of due diligence.See also Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under Section 2244(d)(1)(A), the statute of limitations begins to run ninety days after the Court of Appeals denies leave to appeal the affirmance of a conviction, since this concludes the period in which a petitioner may seek to appeal his conviction through a writ of certiorari to the United States Supreme Court. See Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001); Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). In circumstances where, as here, no appeal is sought to the Court of Appeals, the conviction becomes final when the time to seek leave to the Court of Appeals expires. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (where petitioners do not pursue avenues of direct review, judgment becomes final when the time for pursuing review expires); Royal v. Lee, No. 11-CV-05859 (CS) (GAY), 2012 WL 7009773 (S.D.N.Y. Dec. 13, 2012), report and recommendation adopted, 2013 WL 465331 (S.D.N.Y. Feb. 6, 2013) (finding the conviction was final thirty days after the Appellate Division, Second Department affirmed the petitioner's conviction).
The one-year limitations period is tolled, however, during the periods of time during which properly filed applications for state post-conviction relief are pending. See 28 U.S.C. § 2244(d)(2); Bennett v. Artuz, 199 F.3d 116, 118-19 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). The tolling provision serves only to exclude “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). “[A]n application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
“These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee ....” Artuz, 531 U.S. at 8.
CPLR 7002 sets forth the pleading requirements for state habeas petitions. Thus, a state habeas petition is not “properly filed” under 28 U.S.C. § 2244(d)(2) if the petition does not satisfy CPLR 7002. See Santana v. Griffin, No. 17-CV-03827 (PAE) (KHP), 2018 WL 1229860, at *4-5 (S.D.N.Y. Mar. 7, 2018).
Nevertheless, even when a petition is time-barred, a petitioner may benefit from the doctrine of equitable tolling. For equitable tolling, the petitioner must establish: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Courts have invoked the doctrine of equitable tolling only in “rare and exceptional circumstance[s].” Smith, 208 F.3d at 17.
To show extraordinary circumstances “prevented” timely filing, a petitioner 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.” Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (internal quotation marks and citation omitted). The “extraordinary circumstances” prong of the equitable tolling test “is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond [his] control.” Menominee Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 756 & n.2 (2016) (emphasis in original).
Where extraordinary circumstances exist, the petitioner still must “establish that he acted diligently . . . throughout the time he seeks to have tolled” in order for equitable tolling to apply. Rivas v. Fischer, 687 F.3d 514, 539 (2d Cir. 2012); see also Smith, 208 F.3d at 17 (petitioner must show that he acted “with reasonable diligence throughout the period he seeks to toll”); Atkins v. Gonyea, No. 12-CV-09186 (JGK), 2014 WL 199513, at *2 (S.D.N.Y. Jan. 17, 2014).
A petitioner also may circumvent the AEDPA limitations period if he or she makes “a credible showing of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). To demonstrate actual innocence, a petitioner must show that “he is actually innocent of the crime for which he has been convicted.” Danielson v. Lee, Case No. 09-CV-3839 (LAP), 2015 WL 4879140, at *3 (S.D.N.Y. Aug. 13, 2015), aff'd, No. 15-3222, 2017 WL 5438875 (2d Cir. Nov. 14, 2017). Actual innocence is “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). The standard for actual innocence was articulated in Schlup v. Delo, 513 U.S. 298 (1995). The Second Circuit has summarized the standard as follows:
To satisfy the Schlup standard, a claim of actual innocence must be both “credible” and “compelling.” See House v. Bell, 547 U.S. 518, 521 (2006). For the claim to be “credible,” it 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.” Schlup, 513 U.S. at 324; see also House, 547 U.S. at 537. 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-or[,] to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538.Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012). As the Supreme Court noted in House, “[t]he Schlup standard is demanding and permits review only in the extraordinary case.” 547 U.S. At 538. Accordingly, “tenable actual-innocence gateway pleas are rare.” McQuiggin, 569 U.S. at 386.
Finally, because Nunez is Pro se, the court must liberally construe his Petition and interpret it “to raise the strongest arguments that [it] suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation omitted).
DISCUSSION
I. Statute of Limitations
A. Timeliness Of Petition And Statutory Tolling
In the present case, pursuant to 28 U.S.C. § 2244(d)(1)(A), the one-year period for filing a federal habeas petition began to run on the date the underlying state court judgment became final-i.e., August 21, 2019, 90 days after the May 23, 2019 denial of Petitioner's application for leave to appeal to the Court of Appeals. Thus, Petitioner had until August 21, 2020, to file a petition for federal habeas relief. However, he did not do so until November 12, 2020, which was 83 days late. Thus, the Petition is barred by the statute of limitations.
The other events triggering the start of the one-year limitations period do not apply here since no unconstitutional state action prevented Petitioner from filing the petition, and none of his claims is based on either a newly recognized constitutional right or newly discovered facts. See 28 U.S.C. § 2244(d)(1)(B)-(D).
There is a statutory provision that tolls the statute of limitations, which provides as follows: “The 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). However, that statutory provision is not applicable here since, as explained below, Petitioner's state habeas petition was not “properly filed.”
In New York, a habeas petition is “defective” if it fails to “strictly comply with the requirements of C.P.L.R. § 7002(c).” People ex rel. Chaney v. Dagostino, 137 A.D.3d 1436, 1437 (3d Dep't 2016). CPLR 7002(c) requires that a petitioner set forth “the date, and the court or judge to whom made, of every previous application for the writ, the disposition of each such application.” CPLR 7002(c)(6). New York's Appellate Division has held that CPLR 7002(c)(6) requires a specific statement either setting forth any previous applications or asserting that no previous applications have been made. See People ex rel. Dunn v. McMann, 23 A.D.2d 510, 510 (3d Dep't 1965) (“While it could be argued that 7002(c), par. 6 requires a statement only if, in fact, a previous application has been made and that the lack of any statement should be assumed to indicate that no prior applications have been made, in our view the history of this section requires a specific statement either setting forth any previous applications or asserting the lack thereof.” (citations omitted)).
In the present case, Petitioner's state habeas petition did not state whether he had previously filed any state habeas petitions. (See State Pet.) Thus, it was not “properly filed” under New York law. Petitioner's “noncompliance with C.P.L.R. § 7002(c) allowed the [AEDPA] statute of limitations to run during the pendency of his state action.” Santana, 2018 WL 1229860, at *5 (dismissing habeas petition of Pro se petitioner whose state petition had not complied with C.P.L.R. § 7002(c)(6) (citing Dunn, 23 A.D.2d 510)).
The fact that the state court accepted the state habeas petition is of no moment. See Artuz v. Bennett, 531 U.S. 4, 9 (2000) (explaining that if “an application is erroneously accepted by the clerk of a court lacking jurisdiction, or is erroneously accepted without the requisite filing fee, it will be pending, but not properly filed” (emphasis in original)).
B. Equitable Tolling
Conceding that the Petition was filed outside of AEDPA's one-year time limitation, Petitioner argues that the limitations period should be extended because COVID-19 restrictions at OCF impeded him from filing on time and because “the federal courts were closed” for 90 days during the limitations period as a result of the pandemic. (Pet. at 5.)
As the Court has noted in prior rulings (see 1/21/21 Opinion & Order, ECF No. 21, at 3 n.1; 3/18/21 Opinion & Order, ECF No. 29, at 3), Petitioner's suggestion that “the federal courts were closed for a 90-day period” (Pet. at 5), such that he was unable to timely file his Petition, is factually incorrect. The Clerk's office and Pro se filing unit have been open for filing throughout the pandemic.
With regard to the “state imposed coronavirus restrictions” (Pet. at 5) and other obstacles that Petitioner claims prevented him from timely filing his petition, Petitioner, for the first time, identifies these and describes them in some detail in the declaration accompanying his reply brief. (See Nunez Decl.) By his account, these impediments included his unsuccessful efforts to retain pro bono counsel between September 2019 and March 2020 (id. ¶ 3); his intermittent access to the OCF Law Library, including due to its closure for eight weeks beginning on March 16, 2020 (id. ¶¶ 4-10, 19-21); the illness of his mother and the illness and death of his stepfather in March and April 2020 (id. ¶¶ 11-14); the restrictions on inmate mobility and access to prison facilities and programs put in place “[o]nce the COVID 19 hit” OCF (id. ¶¶ 15-18, 22); his mistaken belief, assertedly based on a “memo [that] was sent to all housing units at Ogdensburg that the [New York State] Court system was tolling time for everything from civil to criminal cases,” that his time to file a federal habeas petition under § 2254 also had been tolled (id. ¶¶ 23-25); and painful dental infections he began to feel “[a]fter the month of May” 2020 (id. ¶¶ 26-31).
While acknowledging that several of these asserted obstacles warrant sympathy for Petitioner, the Court nevertheless finds that Petitioner has not established a plausible basis for equitable tolling. See Hizbullahankhamon, 255 F.3d at 75 (equitable tolling not warranted where “the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances”). In particular, the Court notes that the bulk of the obstacles Petitioner cites occurred within the eight-week period beginning in mid-March of 2020. Notwithstanding Petitioner's subsequent dental infections, the Court finds that Petitioner has not demonstrated why he could not, through reasonable diligence, have prepared and filed his (five-page) petition during the period between the reopening of the OCF Law Library in May 2020 and his filing deadline of August 21, 2020. See Rivas, 687 F.3d at 539 (petitioner must “establish that he acted diligently . . . throughout the time he seeks to have tolled” (emphasis added)). Indeed, any claim that OCF (or New York State) restrictions beyond Petitioner's control prevented him from filing his petition on time is undermined by the fact, noted in Respondent's briefing, that another inmate at OCF managed to file a Pro se habeas petition in June 2020. See Petition, Love v. Danforth, 20-CV-00664 (N.D.N.Y. June 15, 2020).
Petitioner does not argue that his failure to comply with AEDPA's one-year statute of limitations should be excused on the grounds of actual innocence. In any event, the Court discerns nothing in the state court record suggesting that Petitioner is innocent.
The instant Petition is thus untimely and should be dismissed. Even if this proceeding were not time-barred, however, Petitioner's grounds for habeas relief do not have merit, as set forth below.
II. Petitioner's Claims Regarding The Trial Court's Purported Deviation From The Indictment (Grounds One and Two) Are Not Cognizable
In the first two grounds of his Petition, Petitioner argues that he was “prosecuted and tried on a theory of the crime at variance with the theory of the indictment” and that the trial court “amended the indictment” in its jury instructions, allegedly in violation of his right to due process under Fourteenth Amendment. (Pet. ¶ 13 (Grounds One and Two).) However, Petitioner's assertions that the prosecutor or the court illegally amended the indictment and changed the theory of prosecution are not a basis for federal habeas relief under the Fourteenth Amendment. See Parker v. Wenderlich, No. 14-CV-05896 (JG), 2015 WL 5158476, at *17 (E.D.N.Y. Sept. 2, 2015) (“[T]he Fifth Amendment's right to a grand jury indictment has not been incorporated against the states through the Fourteenth Amendment, and thus does not work to limit state prosecutions.”).
To the extent that Petitioner is arguing that the prosecution's theory of guilt at trial impermissibly varied from the indictment, a variance in proof rises to the level of a federal constitutional violation “only if it infringes on the notice and double jeopardy protections of an indictment.” See United States v. D'Amelio, 683 F.3d 412, 416-17 (2d Cir. 2012) (internal quotation marks omitted). Here, Petitioner was on notice for of the theory upon which the prosecution was proceeding prior to trial. As Petitioner notes in his leave application to the New York Court of Appeals, “[t]he parties began litigating the issue of whether a CJA interviewer is a public servant under subsection (b) of Penal Law § 10.00(15) well before trial during motion practice.” (1/18/19 Ltr. at 9.) Moreover, any variance in the proof did not implicate Petitioner's double jeopardy rights since the basis of the charges against him was sufficiently clear to ensure that he could not be tried again for the same crimes.
III. Petitioner's Claim Regarding The Jury Instruction On “Public Servant” (Ground Three) Lacks Merit
In his third ground, Petitioner contends that the trial court gave a “highly prejudicial” definition of “public servant” in its instructions to the jury. (Pet. ¶ 13. (Ground Three).) However, the definition of “public servant” is a matter of state law, and “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” See DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
IV. Petitioner's Claim Regarding Sufficiency Of Evidence (Ground Four) Lacks Merit
As his fourth ground, Petitioner contends that the evidence at trial was insufficient to convict him of any of the charges he faced. (Pet. ¶ 13 (Ground Four).) “A challenge to the sufficiency of the evidence must be rejected if ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Garrett v. Perlman, 438 F.Supp.2d 467, 471 (S.D.N.Y. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “When considering the sufficiency of the evidence of a state conviction, ‘[a] federal court must look to state law to determine the elements of the crime.'” Id. (quoting Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002)). A petitioner's claim “face[s] a high bar,” and the state court decision may only be overturned if it was “objectively unreasonable.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting Renico v. Lett, 559 U.S. 766 (2010)).
Therefore, this Court must use a “doubly deferential standard of review” when considering Petitioner's sufficiency challenge, deferring first to the jury's verdict, and second to the Appellate Division's determination under the standard set forth in 28 U.S.C. § 2254(d). Garbutt v. Conway, 668 F.3d 79, 81 (2d Cir. 2012). The writ should not be granted unless “no reasonable court could have held that any reasonable jury could have read the evidence to establish petitioner's guilt beyond a reasonable doubt.” Id. at 82.
In the present case, the Appellate Division held that “[t]estimonial and documentary evidence established that [Veras-Rodriguez] was a public servant under § 10.00(15)(b) because he exercised the functions of a public employee in interviewing arrestees and making recommendations to arraignment judges whether to release the arrestees on their own recognizance,” and that “[t]he evidence also sufficiently established that [Nunez and Yu] sought to influence [Veras-Rodriguez] with respect to his ‘vote, opinion, judgment, action, decision, or exercise of discretion as a public servant,' as required to convict them of bribery in the second degree.” Yu, 167 A.D.3d at 522-23. Deference is due to the Appellate Division's decision. Petitioner has failed to show that the Appellate Division's decision was “contrary to, or involved an unreasonable application of,” clearly established Supreme Court precedent, or that it was “based on an unreasonable determination of the facts in light of the evidence presented” at trial. See 28 U.S.C. § 2254(d).
V. Petitioner's Claim Regarding The Trial Court's Jurisdiction (Ground Five) Is Not Cognizable
Finally, Petitioner contends that the trial court's errors “stripped the Trial Court entirely of subject matter jurisdiction to prosecute and render judgment of conviction upon Petitioner as a matter of law.” (Am. Pet. at 1 (Ground Five).) However, so long as an accusatory instrument filed in state court charges a cognizable crime, as here, the issue of “[w]hether an indictment, information, or complaint is sufficient to confer jurisdiction on a trial court is . . . an issue of state law which is not cognizable on habeas review.” Sengupta v. Att'y Gen. of New York, No. 16-CV-06967 (ALC) (GWG), 2019 WL 4308610, at *16 (S.D.N.Y. Sept. 11, 2019).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Nunez's Petition and Amended Petition for a Writ of Habeas Corpus be DENIED in their entirety. The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to the Pro se Petitioner at the address indicated on the docket.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).