Opinion
23-CV-0533 (LTS)
02-06-2023
FOMDO DRAME, Petitioner, v. DONALD UHLER, SUPT. OF UPSTATE C.F., Respondent.
ORDER
Laura Taylor Swain Chief United States District Judge
Petitioner, who is currently incarcerated at Upstate Correctional Facility, brings this pro se petition challenging his February 23, 2018, conviction in the New York Supreme Court, New York County. By order dated January 30, 2023, the Court granted Petitioner's request to proceed in forma pauperis (IFP). The Court directs Petitioner to file a declaration within 60 days of the date of this order showing cause why this application should not be denied as time-barred.
DISCUSSION
A. Applicable Statute of Limitations
Petitioner's application may be time-barred. A prisoner seeking habeas relief under Section 2254 must generally file a petition within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)-(2).
Petitioner alleges that, on February 23, 2018, he was convicted in the New York Supreme Court, New York County. Court records indicate that on July 9, 2020, the New York Supreme Court Appellate Division, First Department, affirmed the conviction, People v. Drame, 185 A.D.3d 455 (1st Dep't July 9, 2020), and the New York Court of Appeals denied leave to appeal on November 5, 2020, 36 N.Y.3d 928. Petitioner's conviction consequently became final on April 1, 2021, following the expiration of the 150-day period of time to seek a writ of certiorari from the Supreme Court of the United States. See Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000). Petitioner placed this petition in the prison mail collection box on January 3, 2023, more than one year and nine months after the judgment of conviction became final.
Under the Supreme Court's rules, a litigant typically has 90 days to file a petition for a writ of certiorari. See S.Ct. R. 31.1. Because of the Covid-19 pandemic, the Supreme Court temporarily extended the time to petition for certiorari to 150 days for any case where the petition was due on or after March 19, 2020. On July 19, 2021, the Supreme Court rescinded the extension for any case in which the relevant lower-court decision was issued on or after July 19, 2021. Here, Petitioner's petition for a writ of certiorari, had he filed one, would have been due on or after March 19, 2020, but before July 19, 2021.
Under the “prison mailbox rule,” courts generally treat documents submitted by individuals who are incarcerated as deemed filed on the date that the individual delivers the document to prison authorities for mailing. Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001).
B. Tolling by Postconviction Motions
Under the habeas statute, when postconviction motions are filed before the expiration of the statute of limitations, those motions and related state-court proceedings may toll the statute of limitations. See 28 U.S.C. § 2244(d)(2). Postconviction motions filed after the limitations period expires, however, do not start the limitations period anew. “[P]roper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Section 2244(d)(2) applies only if a petitioner's postconviction motion was pending within the one-year limitations period.
Here, Petitioner alleges that he filed a postconviction motion under New York Criminal Procedure Law § 440.10. (See ECF 1, at 2.) He does not provide the date he filed the motion, but he states that the trial court denied it on October 12, 2021. (Id.) Petitioner appears to allege that he also filed a motion under New York Criminal Procedure Law § 460.15 in the Appellate Division, First Department. (See id. at 3.) He does not, however, provide the date he filed that motion or the date it was denied.
Based on the information provided, Petitioner's postconviction proceedings in the New York state courts likely toll the limitations period, but his petition still appears untimely. See 28 U.S.C. § 2244(d)(2). Even assuming that Petitioner filed his Section 440.10 motion before the statute of limitations expired and that the limitations period was therefore tolled while it was pending, he filed this petition over one year and two months after that motion was denied on October 12, 2021. Petitioner's Section 460.15 motion may have further tolled the statute of limitations, but Petitioner fails to provide sufficient information - such as when the motion was filed and when it was denied - that would allow the Court to make that determination.
C. Leave to File Declaration
The Court therefore directs Petitioner to file a declaration within 60 days of the date of this order stating why this application should not be dismissed as time-barred. Petitioner should include in his declaration a listing of the following: (1) the dates on which he filed each of his postconviction collateral state court applications and motions in which he challenged this conviction, including any application for error coram nobis relief, all motions under New York Criminal Procedure Law § 440, and any other postconviction collateral applications and motions; (2) the dates on which the state courts issued decisions as to any of those applications or motions; (3) the dates on which he filed any appeals or applications for leave to appeal from those decisions; (4) the dates on which the state courts issued decisions on those appeals or applications; and (5) the dates on which he received notice of any state court decisions on those applications and appeals.
Petitioner also should allege any facts showing that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from timely submitting this petition. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that one-year limitations period under Section 2244(d) for habeas corpus petitions under 28 U.S.C. § 2254 is subject to equitable tolling in appropriate cases).
CONCLUSION
Petitioner is directed to file a declaration within 60 days of the date of this order showing why the petition should not be dismissed as time-barred. A declaration form is attached to this order. If Petitioner timely files a declaration, the Court will review it and, if proper, will order the Respondent to answer. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, or if the declaration is insufficient to demonstrate that the petition was timely filed, the Court will deny the petition as time-barred. No answer shall be required at this time.
Because Petitioner has not at this time made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.