Opinion
1:16-cv-09842 (LAP) (SDA)
08-01-2018
Pleasant, Petitioner, v. Capra, Respondent.
REPORT AND RECOMMENDATION STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE:
Petitioner Lamaar A. Pleasant ("Petitioner" or "Pleasant"), a New York prisoner currently incarcerated at Sing Sing Correctional Facility, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent Michael Capra, Superintendent of Sing Sing Correctional Facility ("Respondent" or "Capra"), filed a motion to dismiss asserting the Petition is untimely. (Mot. to Dismiss, ECF Nos. 18, 24-28.) For the reasons set forth below, I recommend that Respondent's motion to dismiss be GRANTED, and the Petition be DENIED.
Capra originally filed his motion at ECF No. 18, but re-filed it at the Clerk of Court's instruction due to a filing error; Capra's re-filed motion is located at ECF Nos. 24-28.
BACKGROUND
I. Factual Background
On March 8, 2005, Pleasant pleaded guilty to two counts of murder in the second degree in the Supreme Court of the State of New York, New York County. (Pet., ECF No. 2, at 1-2; see also Affirm. in Supp. of Def's. Mot. to Dismiss ("Morales Affirm."), ECF No. 25, at 2-3.) On March 22, 2005, consistent with his plea, he was sentenced to two concurrent indeterminate prison terms of twenty-one years to life. (Id.)
II. Direct Appeal
On September 8, 2006, Pleasant's appellate attorney, Paul Angioletti, filed a so-called Anders brief, which was twenty-one pages in length, seeking to withdraw as counsel on the basis that there were no nonfrivolous issues to raise on direct appeal. (Anders Appeal Brief, Morales Affirm. Ex. C.) On January 4, 2007, the New York Supreme Court Appellate Division, First Department ("Appellate Division") granted the motion to withdraw and affirmed Pleasant's conviction, saying it "agree[d] with appellant's assigned counsel that there are no non-frivolous points which could be raised on this appeal." (Decision and Order, Morales Affirm. Ex. D.) In its decision, the Appellate Division provided instructions for how to apply for leave to appeal its decision to the New York State Court of Appeals ("Court of Appeals"). (Id.)
The brief was filed pursuant to Anders v. California, 386 U.S. 738 (1967).
Despite having been notified of his ability to seek leave to appeal and provided instructions for how to do so, Pleasant does not appear to have sought leave to appeal the Appellate Division's decision to the Court of Appeals. Therefore, his conviction became final on February 3, 2007, upon expiration of the thirty-day period he had to seek leave to appeal to the Court of Appeals.
Pleasant provides inconsistent statements in his pleadings regarding whether he sought leave to appeal to the Court of Appeals: in his Petition, he asserts that the Court of Appeals denied leave to appeal (Pet. at 2, 29), but he does not provide a date for that decision (id. at 2); in his affidavit in support of his Petition, he says that leave to appeal to the Court of Appeals was granted. (ECF No. 7 at 6.) Moreover, although he provides in his pleadings specific dates of occurrences when discussing other relevant dates in this litigation (e.g., dates of plea, sentencing and other motions), he does not provide specific dates when discussing his supposed attempt to seek leave to appeal to the Court of Appeals. The Court has conducted its own search for any decision and/or order from the Court of Appeals in connection with Pleasant's direct appeal, but has been unable to find one. Thus, this Court concludes that, on his direct appeal, Pleasant did not seek leave to appeal to the Court of Appeals.
III. Collateral Attacks
After his direct appeal, Pleasant filed four post-conviction motions: three motions to vacate his conviction under New York Criminal Procedure Law § 440.10 ("Section 440"), and one motion for writ of error coram nobis.
a. First 440 Motion
Acting pro se, Pleasant filed his first motion to vacate his conviction under Section 440 ("Section 440 Motion I") on December 27, 2007, claiming that his guilty plea was not entered knowingly and voluntarily (due to having taken medication), and that he was denied effective assistance of trial counsel because his attorney had coerced him into pleading guilty. (Section 440 Mot. I, Morales Affirm. Ex. E.) Justice White denied Pleasant's motion on the merits on February 11, 2008, finding that "[t]he medical records defendant submits as exhibits in this motion do not establish that he received any medication on the date he pleaded guilty," and that he pleaded guilty "voluntarily, knowingly, and intelligently." (Decision and Order, Morales Affirm. Ex. F.) Justice White also found that Pleasant's counsel was not ineffective. (Id.) The Appellate Division denied leave to appeal on April 17, 2008. (Cert. Den. Leave, Morales Affirm. Ex. G.)
On March 14, 2008, Pleasant moved for leave to reargue the motion. (See Section 440 Mot. II, Morales Affirm. Ex. O at 5; see also Cert. Den. Leave, Morales Affirm. Ex. I.) On May 16, 2008, Justice White granted Pleasant's motion to reargue, but adhered to her original decision denying the motion. (See Section 440 Mot. II, Morales Affirm. Ex. O at 5.) Pleasant sought leave to appeal to the Appellate Division, pursuant to New York Criminal Procedure Law § 460.15. The Appellate Division denied permission to appeal on via certificate dated August 8, 2008 and entered August 26, 2008. (Cert. Den. Leave, Morales Affirm. Ex. I.)
Pleasant moved to re-argue a second time, and Justice White re-affirmed her ruling on June 9, 2008. (See Section 440 Mot. II, Morales Affirm. Ex. O at 5.)
On August 29, 2008, Pleasant moved to re-argue a third time. (Morales Affirm. at 5.) Justice White adhered again to her original denial of the motion. (Id.) The Appellate Division denied leave to appeal on November 7, 2008. (Cert. Den. Leave, Morales Affirm. Ex. J.) Pleasant moved to reargue the Appellate Division's denial dated November 7, 2008, which the Appellate Division denied on January 7, 2009. (Decision, Morales Affirm. Ex. K.)
On October 27, 2008, Justice White denied a fourth motion to re-argue. (Section 440 Mot. II, Morales Affirm. Ex. O at 5; Morales Affirm. at 5.)
Pleasant sought leave to appeal the Appellate Division's January 7, 2009 order denying his third motion to reargue to the Court of Appeals, which dismissed his application for a certificate to appeal on April 20, 2009 because "the order[] sought to be appealed is not appealable . . ." under New York's Criminal Procedure Law § 450.90(I). (Cert. Dismissing Appl., Morales Affirm. Ex. N.)
b. Second 440 Motion
Petitioner filed a second motion to vacate his conviction pursuant to Section 440 on May 17, 2010 ("Section 440 Motion II"), this time represented by counsel, arguing again that his plea was not knowing, voluntary and intelligent; that the prosecution engaged in certain conduct which resulted in violation of Brady v. Maryland ("Brady violation"); and that trial counsel was ineffective. (Section 440 Mot. II, Morales Affirm Ex. O.) In a seven-page opinion, Justice White denied the motion on December 6, 2010, on the grounds that the claims were procedurally barred and that the claims lacked merit. (Decision and Order, Morales Affirm. Ex. Q.) On February 22, 2011, the Appellate Division denied leave to appeal. (Cert. Den. Leave, Morales Affirm. Ex. R.) The record does not reflect that Pleasant sought leave to appeal before the Court of Appeals.
373 U.S. 83 (1963).
c. Writ of Error Coram Nobis
Pleasant, again represented by counsel, moved for a writ of error coram nobis on December 20, 2011, alleging ineffective assistance of appellate counsel, for filing an Anders brief and failing to raise certain issues on direct appeal. (Mot. for Writ of Error Coram Nobis, Morales Affirm. Ex. S.) On March 8, 2012, the Appellate Division denied Pleasant's coram nobis motion. (Order, Morales Affirm. Ex. T.) On August 20, 2012, the Court of Appeals denied leave to appeal. (Order Den. Leave, Morales Affirm. Ex. U.) On August 22, 2012, Pleasant moved the Court of Appeals for reconsideration of the denial of his application for leave. (Letter, Morales Affirm. Ex. V.) The Court of Appeals denied the motion for reconsideration on March 25, 2013. (Order Den. Recons., Morales Affirm. Ex. Y.)
d. Third 440 Motion
Acting pro se, Pleasant filed a third motion to vacate his conviction under Section 440 ("Section 440 Motion III") on September 20, 2012, claiming: (1) Brady violations; (2) the existence of newly discovered evidence which would have changed the outcome of his case; (3) ineffective assistance of trial counsel; (4) that his plea was not knowing and voluntary; and (5) that his arrest was a violation of New York state law. (Section 440 Mot. III, Morales Affirm. Ex. W.) On March 18, 2013, Justice White denied his motion on the merits in an eleven-page decision. (Decision and Order, Morales Affirm. Ex. X.) The Appellate Division denied leave to appeal via Certificate dated August 15, 2013 and entered October 1, 2013. (Cert. Den. Leave, Morales Affirm. Ex. Z.) On April 22, 2014, the Appellate Division denied Pleasant's motion for reargument of its decision. (Cert. Den. Reargument, Morales Affirm. Ex. DD.) On January 28, 2014, the Court of Appeals denied leave to appeal the Appellate Division's denial of leave, "because the order sought to be appealed from is not appealable under CPL 450.90(I)." (Order Dismissing Leave, Morales Affirm. Ex. BB.)
Pleasant moved for Justice White to reconsider her denial on November 6, 2013. (Mot. for Recons., Morales Affirm. Ex. AA.) On March 12, 2014 Justice White granted his motion for reconsideration, but again denied the motion. (Decision and Order, Morales Affirm. Ex. CC.) Via Certificate dated July 15, 2014 and entered August 7, 2014, the Appellate Division denied leave to appeal Justice White's denial dated March 12, 2014. (Cert. Den. Leave, Morales Affirm. Ex. FF.) Pleasant sought leave to appeal of the Appellate Division's denial to the Court of Appeals, which denied leave to appeal on December 15, 2014 "because the order sought to be appealed from is not appealable under CPL 450.90(I)." (Cert. Den. Leave, Morales Affirm. Ex. GG.)
In December 2014, Pleasant moved for a reconsideration for a second time of Justice White's denial of his motion. (Mot. for Recons., Morales Affirm. Ex. HH.) His motion was denied on August 14, 2015. (Decision and Order, Morales Affirm Ex. II.) On October 2, 2015, Pleasant sought reconsideration of the trial court's August 14, 2015 denial of his motion for reconsideration. (Morales Affirm. Ex. JJ.) His motion was denied on February 23, 2016. (Order, Morales Affirm. Ex. KK.) Pleasant sought leave to appeal the February 23, 2016 decision, but was denied by the Appellate Division via Certificate dated June 7, 2016 and entered June 28, 2016. (Cert. Den. Leave, Morales Affirm. Ex. LL.) Pleasant sought leave to appeal to the Court of Appeals the Appellate Division's June 28, 2016 order, but the Court of Appeals denied permission to appeal on October 24, 2016 "because the order sought to be appealed from is not appealable...." (Order Dismissing Leave, Morales Affirm. Ex. MM.) Pleasant moved for reconsideration of the Court of Appeal's decision, which the Court of Appeals denied on December 30, 2016. (Order Den. Recons., Morales Affirm. Ex. NN.)
IV. FOIL Requests
In a letter dated November 20, 2007, Pleasant requested access to certain records under New York State's Freedom of Information Law ("FOIL"). (See Letter, Morales Affirm. Ex. H.) On May 5, 2008, Sergeant James Russo from New York City's Police Department Legal Bureau FOIL Unit responded to Pleasant's request, saying that eight pages had been found, and informing Pleasant that, upon receipt of Pleasant's payment of $2.00, the documents would be mailed. (Id.) A fee receipt annexed to Sergeant Russo's letter indicates that Pleasant paid $2.00 for "8 pages accessed" on June 11, 2008. (Id.)
On November 16, 2008, Pleasant submitted a self-styled "F.O.I.L. Request" to the District Attorney's office of New York County. (Morales Affirm. Ex. L.) On December 17, 2008, Assistant District Attorney ("ADA") Charles E. King, III responded to Pleasant's request, informing Pleasant that he would review the relevant case files to evaluate Pleasant's request. (Letter, Morales Affirm. Ex. M.) On or about August 25, 2009, Pleasant wrote to ADA King III, inquiring as to why he had not received any documents requested and requesting "any papers you were able to find up to this point[.]" (Letter, Morales Affirm. Ex. P.)
In May 2014, Pleasant, acting pro se, submitted a motion to compel and show cause, addressed to Justice White, seeking a court order to compel production of the documents he had requested via FOIL application five years earlier. (Morales Affirm. Ex. EE.) The record does not contain any indication of the disposition of that motion.
V. The Instant Petition
On December 19, 2016, this Court received the instant Petition. Pleasant brings this action to challenge his conviction on the grounds of: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) failure of the prosecutor to provide all available Brady material. (Pet. at 6-13.) Respondent Capra filed his motion to dismiss on May 18, 2017. (Mot., ECF Nos. 18, 24-28.) This case was reassigned to me on December 1, 2017. By Order, I directed Pleasant to support "any additional evidence or arguments that he would like the Court to consider in ruling upon the pending Motion to Dismiss." (12/8/17 Order, ECF No. 29.) In response, Pleasant submitted a letter, which the Court received on January 24, 2018. (ECF No. 30.)
DISCUSSION
I. Legal Standards
Under 28 U.S.C. § 2254(a), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates "the Constitution or laws or treaties of the United States." 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 expired. 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, 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.
A motion to vacate judgment brought under Section 440 - a form of state post-conviction relief which may toll the limitations period - may be filed at any time after sentencing, but the filing of such motion does not restart an already-expired one-year limitations period. See Davis v. Artuz, No. 99-CV-9244 (HB), 2001 WL 199454, at *2 (S.D.N.Y. Feb. 28, 2001) ("In order for the one year period to be tolled as a consequence of a properly filed application for State collateral review, the petitioner must seek such review either before or during the one-year limitations period.") (internal quotation marks omitted)). As the Second Circuit has made clear, the "proper 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, 208 F.3d at 17. Put simply, tolling extends the time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired.
See N.Y. C.P.L. § 440.20, which provides that "[a]t any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law."
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, 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." Hizbullahhankhamon 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 its 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-9186 (JGK), 2014 WL 199513, at *2 (S.D.N.Y. Jan. 17, 2014).
Courts in this District have rejected the claim that the limitations period be equitably tolled during the pendency of a petitioner's request pursuant to New York's FOIL. See, e.g., Hamilton v. Miller, 292 F. Supp. 2d 437, 454 (E.D.N.Y. 2003); Castillo v. Artuz, No. 99-CV-5801 (RR), 2000 WL 307373, at *4 (E.D.N.Y. Feb. 15, 2000). After all, if filings of this sort "could toll the AEDPA limitations period, prisoners could substantially extend the time for filing federal habeas petitions by pursuing in state courts a variety of applications that do not challenge the validity of their convictions." Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (citing Sorce v. Artuz, 73 F. Supp. 2d 292, 297-98 (E.D.N.Y. 1999)). Similarly, the filing of FOIL requests "do not constitute 'application[s] for State post-conviction or other collateral review' within the meaning of § 2244(d)(2)." Williams v. Breslin, 274 F. Supp. 2d 421, 426 n.2 (S.D.N.Y. 2003) (citing Hodge, 269 F.3d at 107)). This is because state FOIL proceedings are civil proceedings, not applications for state post-conviction or collateral relief under Section 2244(d)(2). See Bonilla v. Ricks, No. 00-CV-7925 (LAP) (AJP), 2001 WL 253605, at *3 (S.D.N.Y. Mar. 14, 2001).
A petitioner may also 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 Pleasant 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) (internal citation omitted).
II. Application
A. Timeliness Of Petition And Statutory Tolling
Pleasant pleaded guilty on March 8, 2005. The Appellate Division affirmed his conviction on January 4, 2007. His conviction became final on February 3, 2007, upon the expiration of the thirty-day period under which he could have sought leave to appeal to the Court of Appeals. Thus, he had until February 3, 2008 to file his habeas petition. Pleasant did not submit his Petition until December 19, 2016. Pleasant did pursue post-conviction relief in state court: three motions to vacate his conviction pursuant to Section 440, and one petition for a writ of error coram nobis. However, as explained below, the tolling provisions of AEDPA do not save his Petition from being time-barred.
Pleasant well exceeded the AEDPA one-year time limit for filing his Petition, even taking into account the various periods when the statute of limitations was tolled. To begin, Pleasant waited 326 days - nearly a year - from the date his conviction became final before filing his first motion to vacate his conviction under Section 440 on December 27, 2007. Litigation concerning that motion concluded on April 20, 2009, when the Court of Appeals dismissed his final (of four) unsuccessful motions to reconsider. Therefore, Pleasant had 38 days remaining after the conclusion of that litigation to file his habeas Petition. However, more than 38 days elapsed before Pleasant filed either his habeas Petition or another motion for post-conviction relief. Pleasant did not make his next filing, i.e., his Section 440 Motion II, until 391 days later, on May 17, 2010. As a result, by the time he filed his Section 440 Motion II, 717 days already had elapsed without Pleasant filing a federal habeas petition. At that point, the one-year time period already had elapsed. Thus, the Court need not consider the additional time which elapsed between the filing of his other post-conviction motions, prior to Pleasant filing his Petition.
Regarding Pleasant's post-conviction motions, Pleasant filed appeals of the denials of those motions and numerous motions for reconsideration. However, only some of those appeals and motions to reconsider were properly filed and therefore tolled the limitations period. For example, four efforts Pleasant made to appeal certain decisions to the Court of Appeals were denied because "the order sought to be appealed from is not appealable . . . ." (See Morales Affirm. Exs. N, BB, GG, MM.) Such efforts to appeal were not properly filed for the purposes of tolling. See Lebron v. Sanders, Case No. 02-CV-6327 (RPP), 2004 WL 369141, at *4 (S.D.N.Y. Feb. 27, 2004) (citing Bennett, 199 F.3d at 123) (finding application not properly filed when Court of Appeals dismisses application on the basis that, as here, it is not appealable under New York Criminal Procedure Law § 450.90). However, even if the Court were to ignore the periods of time when the statute of limitations was not tolled due to improperly-filed applications, Pleasant still would not have met the one-year AEDPA statute of limitations.
Pleasant exceeded the AEDPA limitations period by more than one year. Moreover, as discussed below, he is not entitled to equitable tolling.
B. Equitable Tolling
Apparently conceding that the Petition was filed outside of AEDPA's one-year time limitation, Pleasant asserts that the "time table should be waived" because he acted with "[d]ue diligence" by filing a FOIL request with the District Attorney's office. (Pet. at 13-15.) However, as discussed earlier, FOIL requests do not serve as a basis for equitable (or statutory) tolling. Hamilton, 292 F. Supp. 2d at 454.
See Pet. at 13 (providing a response to the question "[i]f your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition"); Pet. at 15 ("It is unclear how much time has passed . . . ."); Pet. at 17 (I understand that I have ONE year after my conviction became final to file a petition for habeas corpus relief, [b]ut, under my circumstances, I was completely unable to . . . . ").
Pleasant does not present any circumstances, extraordinary or otherwise, to justify an equitable tolling of AEDPA's one-year deadline, nor does he show that he acted with reasonable diligence in pursuing his claim. The instant petition is thus untimely.
Lastly, to the extent Pleasant attempts to avail himself of the fourth benchmark of 28 U.S.C. § 2244(d)(1)(D), which states that the AEDPA limitations period runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," he is unsuccessful. Under § 2244(d)(1)(D), the discovery of new evidence can "restart" the one-year period, only if such evidence forms the factual predicate for the claims and could not have been discovered earlier through due diligence. See Rivas, 687 F.3d at 535. Pleasant contends that he discovered new evidence in September 2010, after his sister conducted a Google search for "Detective Jean Benoit[]," one of the officers involved in his case. (Pet. at 15, 42.) However, Pleasant has pointed to no new evidence here. He claims that his sister's web search "established" that the paperwork in his case was "riddled with misinformation and mistakes and the arresting officers were also found to be untrustworthy, unreliable, and acted unlawfully in the instant case." (Pet. at 15, 42.) But, he does not identify any "new information," nor the source of any such information.
C. Actual Innocence
Finally, Pleasant asserts he is entitled to an exception to the one-year statute of limitations because he is actually innocent of the offenses to which he pleaded guilty. (Pet's. Letter, ECF No. 30 at 1, 13-15.) While it is true that "a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief," McQuiggin, 569 U.S. at 392, Pleasant's "bald, unsupported assertion of innocence plainly does not qualify." Banner v. Griffin, Case No. 16-CV-3675 (JFB), 2017 WL 415857, at *6 (E.D.N.Y. Jan. 31, 2017). This is especially true given his admission to the charged crimes via guilty plea. See Bower v. Walsh, 703 F. Supp. 2d 204, 228 (E.D.N.Y. 2010) ("[T]he fact that [a habeas petitioner] admitted perpetrating the crime under oath can be considered in connection with his present claim that he is actually innocent."). Here, Pleasant has not pointed to new, reliable evidence, see Rivas, 687 F.3d at 541, and the Court discerns nothing in the state court record suggesting that he is actually innocent. On this record, Pleasant has not shown that his failure to comply with AEDPA's one-year statute of limitations should be excused on the grounds of actual innocence.
CONCLUSION
For the foregoing reasons, the Court recommends that Respondent's motion to dismiss be GRANTED, and the Petition for writ of habeas corpus be DENIED. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
The Clerk of Court shall mail a copy of this Report and Recommendation to the pro se Petitioner at the address provided on the docket. DATED: August 1, 2018
New York, New York
/s/ _________
STEWART D. AARON
United States Magistrate Judge
* * *
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 Preska.
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).