Opinion
22-CV-06388 (MKV)(SN)
07-11-2023
MARVIN HOLMES, Petitioner, v. MARK MILLER, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, Respondent.
REPORT AND RECOMMENDATION
SARAH NETBURN UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE MARY KAY VYSKOCIL:
Marvin Holmes, proceeding pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 18, 2008, a jury found Holmes guilty of two counts of murder in the first degree, murder in the second degree, burglary in the first degree, and criminal possession of a weapon in the second degree. He was sentenced to an aggregate term of life without parole. The Appellate Division, First Department, affirmed his conviction, and the Court of Appeals denied him leave to appeal.
Holmes asserts the following issues: (1) he was deprived of Brady material in the form of impeachment evidence; (2) the Appellate Division “wrongly applied” the actual innocence doctrine; (3) defects in the indictment resulted in the denial of his right to due process; (4) the Appellate Division failed to address all of his claims; and (5) he was denied effective assistance of counsel. I recommend that the petition be dismissed because it is time-barred, not entitled to equitable tolling, and the actual innocence exception does not apply.
BACKGROUND
Holmes was convicted on June 18, 2008, in the New York Supreme Court, New York County, of two counts of murder in the first degree, murder in the second degree, burglary in the first degree, and criminal possession of a weapon in the second degree. ECF No. 2, Petition, ¶¶ 1-4. The Appellate Division, First Department affirmed his conviction on March 3, 2011. People v. Holmes, 82 A.D.3d 411 (1st Dep't 2011). The New York Court of Appeals denied leave to appeal on May 26, 2011. People v. Holmes, 16 N.Y.3d 895 (2011). Holmes did not seek a writ of certiorari from the United States Supreme Court, and therefore his conviction became final on or about August 26, 2011. Petition ¶ 12; see Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000) (noting that a petitioner's conviction is considered final at the expiration of their time to petition for certiorari); Sup. Ct. R. 13(1) (“[A] petition for a writ of certiorari to review a judgment in any case . . . entered by a state court of last resort . . . is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment”).
More than three years later, Holmes filed a post-conviction motion in state court, under N.Y. CPL § 440.10. Petition ¶ 15. The trial court denied his motion on August 15, 2018, id., and on February 10, 2022, the Appellate Division affirmed the trial court's decision. People v. Holmes, 202 A.D.3d 519 (1st Dep't 2022). The Court of Appeals denied leave to appeal on April 19, 2022. People v. Holmes, 38 N.Y.3d 1008 (2022).
Holmes filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 on July 26, 2022.Then-presiding Chief District Judge Swain ordered Holmes to show cause why his petition should not be dismissed as time-barred, since he filed it more than ten years after his conviction became final. ECF No. 3 at 3. Holmes responded, arguing that his petition should not be dismissed as untimely because: (1) his appellate counsel refused to pursue his DNA claim on direct appeal; (2) he was never informed that the one-year limitation period continued to run as he sought assistance from the Innocence Project and Exoneration Initiative with his DNA claim; and (3) he is actually innocent of the crimes for which he was convicted. ECF No. 4 at 2-5.
The petition is dated January 10, 2022, is marked as being received by the SDNY Pro Se Office on July 27, 2022, and was entered on ECF that same day with a filing date of July 26, 2022. See Petition; ECF No. 3 at 2 n.3.
On October 11, 2022, the case was reassigned to District Judge Mary Kay Vyskocil, who referred the matter to my docket for a report and recommendation. ECF No. 13. Respondent argues that Holmes's petition is time-barred, that his N.Y. CPL § 440.10 motion did not toll the statute of limitations, and that equitable tolling is unwarranted because Holmes “has provided no evidence that he pursued his rights diligently during the period he seeks to toll. Nor has he presented any circumstances, extraordinary or otherwise, that prevent timely filing.” ECF No. 9, Opp. Mem. at 37. Respondent also argues that Holmes has failed to present “new, credible evidence” that would support an actual innocence claim. Id. at 38.
DISCUSSION
I. Timeliness
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year period of limitation on an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). A petitioner must generally file a petition within one year of the latest of the following dates: (1) the date on which the judgment becomes final; (2) the date on which the impediment to filing an application created by state action is removed; (3) the date on which the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available; 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. Id. at §§ 2244(d)(1)(A)-(D). This one-year period serves the “well-recognized interest in the finality of state court judgments.” Duncan v. Walker, 533 U.S. 167, 179 (2001).
A petitioner's judgment becomes final 90 days from the date the New York State Court of Appeals issues its final judgment-i.e., after the expiration of the “period to petition for a writ of certiorari to the United States Supreme Court.” Pratt v. Greiner, 306 F.3d 1190, 1195 n.1 (2d Cir. 2002). The AEDPA statute of limitations is tolled while “a properly filed application for State post-conviction” review is pending. 28 U.S.C. § 2244(d)(2). “The tolling provision does not, however, ‘revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations.” Rashid v. Kuhlmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998).
Holmes's petition is untimely because it was filed outside of § 2244(d)(1)'s one-year limit and more than ten years after his conviction became final. The petition does not implicate any of the provisions in §§ 2244(d)(1)(B)-(D) that would postpone the time at which the statute of limiations began to run, and therefore Holmes needed to file his habeas petition within one year of when his conviction became final on or about August 24, 2011. Holmes's post-conviction motion did not toll the AEDPA statute of limitations because it was filed after that statute of limitations had run. See Rashid, 991 F.Supp. at 259.
Holmes does not allege that any unconstitutional State-created impediment prevented him from pursuing state post-conviction relief before 2014, does not rely on a newly recognized constitutional right, and bases his claim on DNA evidence he “could have . . . discovered through the exercise of due diligence” in 2009, two years before his conviction became final.
II. Equitable Tolling
“[I]n rare and exceptional circumstances a petitioner may invoke the courts' powers to equitably toll the limitations period.” Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004) (internal quotation marks omitted). A petitioner seeking equitable tolling must show: “(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). A petitioner acts diligently by advancing their “claims within a reasonable time of their availability.” See Id. at 419. Extraordinary circumstances are evaluated by “how severe an obstacle [the circumstance alleged to warrant tolling] is for the prisoner endeavoring to comply with AEDPA's limitation period.” Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008). A petitioner must also “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.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
Holmes is not entitled to equitable tolling because he failed to diligently pursue his rights and no extraordinary circumstances stood in his way. Holmes explains that his untimely petition was the result of his appellate counsel's failure to inform him of when his conviction became final and that the one-year limitation period would continue to run while he pursued his DNA claim.
“Problems such as . . . insufficiency of legal assistance are not ‘extraordinary' such that they warrant equitable tolling of the AEDPA limitation period. Indeed, to permit equitable tolling in all cases involving such problems would frustrate the statute's objectives ....” Martinez v. Kuhlmann, No. 99-cv-1094 (MBM), 2000 WL 622626, at *3 (S.D.N.Y. May 15, 2000). Counsel's failure to adequately communicate the statute of limitations to Holmes does not rise to the level of “outrageous and incompetent” attorney conduct that would constitute an extraordinary circumstance, Doe, 391 F.3d at 159, and courts have consistently held that mere negligence is not an adequate basis for equitable tolling. Holland v. Florida, 560 U.S. 631, 65152 (2010) (“A garden variety claim of excusable neglect does not warrant equitable tolling.” (cleaned up)). Moreover, counsel's omission, while certainly unhelpful, did not prevent Holmes from filing his petition within the required one-year limit. See Raynor v. Dufrain, 28 F.Supp.2d 896, 900 (S.D.N.Y. 1998) (“Equitable tolling is warranted when some event effectively prohibits the petitioner from pursuing habeas, such as the misplacement of files, or being denied access to materials necessary to file a habeas petition.” (emphasis added)).
III. Actual Innocence
An actual innocence claim may overcome the AEDPA's statute of limitations in rare and extraordinary cases when it is “credible” and “compelling.” Schlup v. Delo, 513 U.S. 298, 299, 324, 329 (1995). To demonstrate actual innocence, “a petitioner must present ‘new reliable evidence that was not presented at trial' and ‘show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'” Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2000) (citing Schlup, 513 U.S. at 299, 327-28).
Holmes argues that his police confession was demonstrably false because there were discrepancies between his recollection of where bullets entered one of the victim's bodies and the medical examiner's testimony and autopsy photographs. This discrepancy is not new evidence, as it was available at Holmes's trial. It is also not exculpatory-Holmes does not dispute that he shot the victim four times and that the victim was killed. Even overlooking those two issues, the inconsistency does not overcome the overwhelming evidence at trial.
Holmes also points to evidence of a bloody palm print found at the crime scene belonging to the son of one of the victims. Holmes argues that this allows for the inference that someone else was complicit in the victims' murders. This evidence was available at trial, and even if it had not been, a bystander's bloody palm print at the scene of a gruesome double homicide is not necessarily exculpatory, let alone compelling enough to meet the strict standard here.
Finally, Holmes relies on his then-girlfriend's statement to police that he was with her in her apartment at the time of the murders. But she retracted that statement immediately after making it and explained to the police that Holmes threatened to harm her and her son if she did not lie. Holmes was aware of these statements and had the opportunity to confront them at trial, but did not.
The only new evidence supporting Holmes's actual innocence claim is a DNA sample from a MetroCard recovered at the crime scene, which was disclosed on May 14, 2009, after his trial. The DNA sample was eventually identified as matching the profile of a NYPD officer. This evidence is not exculpatory, and when viewed in light of the overwhelming evidence presented at trial does not make it “more likely than not that no reasonable juror would find Holmes guilty beyond a reasonable doubt.” Lucidore, 209 F.3d at 114.
Holmes's actual innocence claim relies primarily on evidence that is not new, and none of it is sufficicently compelling to demonstrate actual innocence. Holmes confessed twice to murdering the victims, once to detectives, and again on video to a prosecutor. A witness saw Holmes enter the crime scene with a gun, point it at the witness, and heard one of the victims identify Holmes by name. Holmes's guilt was further supported by evidence that he called one of the victim's nieces to apologize for the crime. Accordingly, his petition does not present the rare and extraordinary case that would excuse filing beyond the statute of limitations.
CONCLUSION
I recommend that the petition for a writ of habeas corpus be DISMISSED. Because the petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability should not issue. See 28 U.S.C. § 2253. I further recommend that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status should be denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the 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. 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 shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Mary Kay Vyskocil at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. 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 Vyskocil. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. 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).