Opinion
9:21-CV-1353 (MAD/ML)
12-18-2023
DAVID REESE, Petitioner, v. SUPERINTENDENT, Respondent.
DAVID REESE Pro se Petitioner Green Haven Correctional Facility LETITIA A. JAMES New York State Attorney General Counsel for Respondent HANNAH S. LONG, ESQ. Assistant Attorney General
DAVID REESE Pro se Petitioner Green Haven Correctional Facility
LETITIA A. JAMES New York State Attorney General Counsel for Respondent
HANNAH S. LONG, ESQ. Assistant Attorney General
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Petitioner David Reese (“Petitioner”) seeks federal habeas relief pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) The Court directed Respondent Superintendent (“Respondent”) to answer the Petition; however, Respondent successfully requested permission to file a motion to dismiss the action as untimely instead. (Dkt. No. 4 [Decision and Order directing response]; Dkt. No. 7 [Resp.'s Letter Motion seeking to file a motion in lieu of an answer]; Dkt. No. 8 [Text Order granting motion]; Dkt. No. 9 [Motion to Dismiss].)
For the sake of clarity, citations to parties' filings refer to the pagination generated by CM/ECF, the Court's electronic filing system.
Petitioner was provided an opportunity to respond to the motion. (Dkt. No. 8.) Petitioner did not file a response. (See generally docket sheet.)
For the reasons which follow, it is recommended that Respondent's motion to dismiss be granted. Furthermore, the Petition should be denied and dismissed in its entirety.
II. THE PETITION
Petitioner challenges a 2015 judgment of conviction in Ulster County, pursuant to a jury verdict, of second-degree murder. (Dkt. No. 1 at 1-2); see also People v. Reese, 166 A.D.3d 1057, 1057 (N.Y.App.Div. 3rd Dep't 2018). The New York State Appellate Division, Third Department affirmed the judgment of conviction and, on March 12, 2019, the New York State Court of Appeals denied leave to appeal. (Dkt. No. 1 at 1-2); Reese, 166 A.D.3d at 1062-63, lv. denied, 33 N.Y.3d 953 (N.Y. 2019). Petitioner did not file a petition for a writ of certiorari but did file a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10 (“440 Motion”) on March 17, 2020. (Dkt. No. 1 at 3, 9; Dkt. No. 9, Attach. 2 at 44-52.) The Ulster County Court denied the 440 Motion on January 28, 2021. (Dkt. No. 1 at 4; Dkt. No. 9, Attach. 2 at 55-68.) The Third Department then denied Petitioner's application for leave to appeal on July 6, 2021. (Dkt. No. 9, Attach. 2 at 72.)
Petitioner argues that he is entitled to federal habeas relief because (1) the conviction was supported by legally insufficient evidence (Dkt. No. 1 at 5-7); (2) the trial court erred in “failing to charge the [d]efense of [j]ustification,” (id. at 7-8); (3) the sentence was harsh and excessive (id. at 8-9). The Petition was signed on November 29, 2021, and placed into the facility mailing system on December 13, 2021. (Dkt. No. 1 at 15.)
These are the same three claims that Petitioner advanced during the direct appeal of his state criminal conviction. See Reese, 166 A.D.3d at 1057-1063.
III. DISCUSSION
A. Standard of Review
Respondent moves to dismiss the petition, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that it fails to state a claim upon which habeas corpus relief may be granted. (Dkt. No. 9.) Specifically, Respondent contends that the Petition is untimely and neither statutory tolling nor any equitable considerations excuse the time-bar. (Dkt. No. 9 at 3-9.)
“Motions to dismiss habeas petitions on procedural grounds pursuant to Rule 12(b)(6) are not inconsistent with the Habeas Rules, given the wide discretion afforded district judges in the disposition of habeas petitions.” Williams v. Breslin, 274 F.Supp.2d 421, 424-25 (S.D.N.Y. 2003). Dismissal of an action “is proper only where it appears beyond doubt that the [petitioner] can prove no set of facts in support of his claim which would entitle him to relief.” Breslin, 274 F.Supp.2d at 425 (citing cases). “[T]he Court must accept all well-pleaded factual allegations in the Petition as true and draw[] all reasonable inferences in favor of the petitioner . . . [and b]ecause [petitioner] is proceeding pro se, his petition must be read liberally and should be interpreted to raise the strongest arguments it suggests.” Id. (internal quotation marks and citations omitted).
B. Timeliness
1. One Year Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), enacted on April 24, 1996, established a one-year statute of limitations for prisoners to seek federal review of their state court criminal convictions. 28 U.S.C. § 2244(d)(1). The one-year period generally begins to run from the date on which the state criminal conviction became final by the conclusion of direct review or by the expiration of the time to seek direct review. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 & n.9 (2012).
Other dates from which the limitations period may start running are the date on which an unconstitutional, state-created impediment to filing a habeas petition is removed, the date on which the constitutional right on which the petitioner bases his habeas application was initially recognized by the Supreme Court, if the right was newly recognized and made retroactively applicable, or the date on which the factual predicate for the claim or claims presented could have been discovered through the exercise of due diligence (newly discovered evidence). 28 U.S.C. § 2244(d)(1)(B)-(D). None of the bases for a later date upon which the statute of limitations could have begun to run appear to apply in this case.
For purposes of section 2244, a state conviction becomes “final” when the United States Supreme Court denies an application for a writ of certiorari or when the time to seek certiorari has expired, which is ninety days after the date on which the highest court in the state has completed direct review of the case. Gonzalez, 565 U.S. at 150; Saunders v. Senkowski, 587 F.3d 543, 547-49 (2d Cir. 2009).
In this case, as Petitioner indicates in his Petition, his conviction was affirmed by the Court of Appeals on March 12, 2019. (Dkt. No. 1 at 2-3); Reese, 33 N.Y.3d 953. Petitioner's conviction became “final” for purposes of the AEDPA ninety days later, on June 10, 2019, when the time to seek certiorari expired. Thaler, 565 U.S. at 149. Petitioner had one year from that date, or until June 10, 2020, to file a timely federal habeas petition. The present Petition was placed in the prison mailing system on December 13, 2021.
2. Statutory Tolling
The one-year limitation period under AEDPA is tolled while “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); Saunders, 587 F.3d at 548. The 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) (per curiam). The tolling provision excludes from the limitations period only the time that the state relief application remained undecided, including the time during which an appeal from the denial of the motion was taken. Saunders, 587 F.3d at 548; Smith, 208 F.2d at 16.
Here, the limitations period ran for 281 days, from June 10, 2019 (when Petitioner's conviction became final), through March 17, 2020 (when Petitioner filed the 440 Motion). (Dkt. No. 9, Attach. 2 at 44-45.) The filing of the 440 Motion tolled the limitations period. After the County Court denied the 440 Motion, Petitioner moved for leave to appeal. (Dkt. No. 9, Attach. 2 at 69-70.) On July 6, 2021, the Appellate Division denied leave. (Dkt. No. 9, Attach. 2 at 72.) For purposes of § 2244(d)(2), the 440 Motion ceased to be pending on July 6, 2021, when the Appellate Division denied leave to appeal. Consequentially, Petitioner had eighty-four (84) days left to timely file his federal habeas case. Accordingly, to be timely filed, Petitioner's habeas action would have had to be commenced on or before September 28, 2021. However, Petitioner failed to file the instant action until December 13, 2021. (Dkt. No. 1 at 15.) As a result, the Petition was filed seventy-six (76) days after the statute of limitations expired.
Even if the undersigned were to consider the date that Plaintiff signed the Petition (November 29, 2021) as the filing date, it was still filed sixty-two (62) days after the statute of limitations expired.
3. Equitable Tolling
AEDPA's one-year statute of limitations period “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (citing, inter alia, Smith 208 F.3d at 17). The Second Circuit has “set a high bar to deem circumstances sufficiently ‘extraordinary' to warrant equitable tolling.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011). A petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Dillon, 642 F.3d at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008).
To make the requisite showing, 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[.]” Rodriguez v. Smith, 14-CV-1274, 2015 WL 5968837, at *6 (N.D.N.Y. Oct. 13, 2015) (Sannes, J.) (quoting Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001)). Further, a petitioner must establish that he “acted with reasonable diligence throughout the period he seeks to toll.” Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004). “The link of causation is broken if the person seeking equitable tolling has not exercised reasonable diligence.” Rodriguez, 2015 WL 5968837, at *6 (citing Barrett v. United States, 961 F.Supp.2d 403, 408 (D. Conn. 2013)); see also Hizbullahankhamon, 255 F.3d at 75 (noting that a causal relationship cannot be demonstrated “if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances”).
Petitioner fails to make any such argument that he is entitled to equitable tolling.
Even if Petitioner were to attempt to proffer that equitable tolling did apply, he fails to allege any facts that would warrant extraordinary circumstances or a causal relationship. Petitioner does not allege that any circumstances prevented him from seeking timely relief in this Court.
4. No Equitable Exception Saves the Petition.
Courts have also recognized an equitable exception to the one-year statute of limitations under 28 U.S.C. §2244(d)(1) in cases where a petitioner can prove actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). It is important to stress that “[o]nce guilt is . . . established . . . a federal habeas court will not relitigate the question of guilt for a state defendant who protests his actual innocence . . . [r]ather, a federal habeas court will review state convictions for constitutional error.” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019).
Here, Petitioner fails to raise, let alone present, any claim of actual innocence. One of Petitioner's claims is that his conviction was not supported by legally sufficient evidence. (Dkt. No. 1 at 5-7.) Specifically, Petitioner argues that his conviction should be reversed and vacated because the proof at trial failed to establish that he intended to cause the death of the victim and the jury's rejection of the affirmative defenses of extreme emotional disturbance and not guilty by reason of mental disease or defect was against the weight of the evidence. (Id.); Reese, 166 A.D.3d at 1058-1062.
“To be credible, such a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995); see also Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012); Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). “The standard's demand for evidence of innocence references factual innocence, not mere legal insufficiency.” Hyman, 927 F.3d at 657 (internal quotation marks and citations omitted); see also Bousley v. United States, 523 U.S. 614, 623-24 (1998) (“‘[A]ctual innocence means factual innocence, not mere legal insufficiency.”) (citations omitted).
In this case, Petitioner has failed to provide any new, reliable evidence that he is actually innocent of the crime for which he was convicted. Instead, petitioner relies on legal insufficiency which cannot be utilized to invoke this equitable exception and save the instant action from the time bar.
In sum, the Petition is untimely and there are no appropriate tolling or equitable considerations available to excuse the late filing.
ACCORDINGLY, it is
RECOMMENDED that Respondent's motion to dismiss (Dkt. No. 9) be GRANTED; and it is further
RECOMMENDED that the Petition (Dkt. No. 1) be DENIED and DISMISSED in its entirety, and it is further
RECOMMENDED that no Certificate of Appealability (“COA”) shall issue because Petitioner has failed to make a “substantial showing of the denial of a constitutional right” as 28 U.S.C. § 2253(c)(2) requires; and it is further
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (holding that if the court denies a habeas petition on procedural grounds, “the certificate of appealability must show that jurists of reason would find debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the applicant has established a valid constitutional violation” (emphasis in original)).
RECOMMENDED that any further request for a COA must be addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk of the Court respectfully provide Petitioner with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk shall serve a copy of this Report-Recommendation and Order upon the parties in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 & 6(a).
(Matter Omitted)