Opinion
20-CV-7547 (GBD) (RWL)
09-24-2021
JOHNNY RODRIGUEZ, Petitioner, v. JAMIE LAMANNA, Respondent.
REPORT AND RECOMMENDATION TO GEORGE B. DANIELS: HABEAS CORPUS
ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE
Johnny Rodriguez, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in the New York State Supreme Court, New York County. Having been found guilty of 31 counts consisting of drug and firearms offenses, Rodriguez was sentenced as a mandatory persistent violent felony offender to an aggregate prison term of 30 years to life. The Respondent contends that Rodriguez's petition should be dismissed as barred by the one-year statute of limitations. For the reasons that follow, I find that the Respondent is correct and recommend that the petition be DISMISSED as untimely.
BACKGROUND
A. The Conviction And Sentence
The facts in this section are drawn primarily from the Appellate Division's decision on Rodriguez's direct appeal, People v. Rodriguez, 163 A.D.3d 437, 80 N.Y.S.3d 263 (1st Dep't 2018).
In May 2013, a jury found Rodriguez guilty of 31 crimes, including, among others, two first-degree sales of cocaine, four second-degree sales of cocaine, one third-degree sale of a firearm, and one attempted third-degree sale of a firearm. Other offenses for which Rodriguez was found guilty, included multiple counts of criminal possession of a controlled substance and a weapon, as well as resisting arrest. The trial court sentenced Rodriguez to an aggregate prison term of 30 years to life.
B. Post-Trial Motions And Appeals
Before perfecting a direct appeal, Rodriguez, acting pro se, filed a post-conviction motion pursuant to N.Y. C.P.L. § 440.10, alleging ineffective assistance of trial counsel.The trial court denied the motion without a hearing. Rodriguez then sought leave to appeal that denial to the Appellate Division, First Department. The Appellate Division granted leave and consolidated that appeal with Rodriguez's pending direct appeal. After Rodriguez perfected both appeals, the Appellate Division unanimously affirmed both the conviction and the denial of Rodriguez's ineffective-counsel motion. People v. Rodriguez, 163 A.D.3d 437 (1st Dep't 2018). Rodriguez then sought leave to appeal to the New York Court of Appeals. On October 18, 2018, the Court of Appeals denied the application. People v. Rodriguez, 32 N.Y.3d 1067, 80 N.Y.S.3d 263 (2018).
Petition (“Pet.”), Dkt. 1, at 6. Page number cites are to the ECF page number, not the document's internal page number.
Pet. at 6.
By papers dated January 22, 2020, mailed to New York County Supreme Court on January 23, 2020, Rodriguez moved pursuant to N.Y. C.P.L. § 440.20 to vacate his 30-year sentences for first-degree criminal sale of a controlled substance. The state court denied that motion on April 20, 2020. Rodriguez did not seek leave from the Appellate Division to appeal the denial of his § 440.20 motion.
Dkt. 12 (refiled at Dkt. 14), Ex. 1.
Dkt. 14, Ex. 2.
Pet. at 7, ¶ 11(d)(3).
Rodriguez did not file a petition for certiorari in the United States Supreme Court.
Pet. at 4.
C. The Instant Petition
Rodriguez filed the instant petition on September 6, 2020 (the date he deposited the petition in the prison's mail system). The petition raises four claims: (1) a Sixth Amendment claim based on the trial court's closing the courtroom during testimony of an undercover detective; (2) a claim that Rodriguez was entitled to an adverse inference jury instruction or other remedy based on a loss of evidence during Superstorm Sandy; (3) a claim that his trial counsel was ineffective; and (4) a claim that his sentence was excessive.
Pet. at 24. Under the prison-mailbox rule, a petition is considered to be filed by a pro se prisoner on the date it is given to a prison official for mailing. Houston v. Lack, 487 U.S. 266, 271, 108 S.Ct. 2379, 2383 (1988).
Pet. at 5.
D. The Instant Motion To Dismiss And Multiple Extensions
By letter dated March 3, 2021, Respondent requested that the Court accept the letter as a limited answer and motion to dismiss the petition as untimely filed under the applicable one-year statute of limitations. On March 4, 2021, this Court accepted Respondent's letter as a limited answer and ordered that Rodriguez file a response, if any, by April 15, 2021. The order warned that “[a]bsent a response, the Court will proceed to resolve the motion.” That same day, the Court mailed a copy of that order to Rodriguez.
Dkt. 12.
Dkt. 13.
By letter dated April 12, 2021 (received by the Court on April 16, 2021), Rodriguez asked for an extension of time to respond due to “current prison conditions,” which he did not describe. On April 19, 2021, the Court granted Rodriguez's request for an extension and ordered that he file any opposition by May 17, 2021. A copy of the order was sent to Rodriguez the following day.
Dkt. 15.
Dkt. 16.
Rodriguez did not file any opposition. On June 2, 2021, the Court received a letter from Rodriguez, dated May 12, 2021, requesting another extension because he was still trying to obtain information relevant to his response. Accordingly, on June 14, 2021, the Court granted Rodriguez a final extension until July 31, 2021. The order warned that “No further extensions will be granted absent extraordinary circumstances.” That same day, the Court mailed a copy of the order to Rodriguez.
Dkt. 18. The same letter also appears at Dkt. 20.
Dkt. 19.
July 31, 2021 came and went without Rodriguez filing any opposition or requesting another extension. Accordingly, the Court proceeded with resolving the motion based on the current record.
The filings of a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers; accordingly, the Court construes Rodriguez's petition liberally “to raise the strongest arguments” it suggests. Triestman v. Federal Bureau Of Prisons, 470 F.3d 471, 472 (2d Cir. 2006) (internal quotation marks omitted); accord Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007). At the same time, however, the pro se status of petitioner such as Rodriguez “does not exempt [that] party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (internal quotation marks omitted).
Respondent argues that the petition should be dismissed because it is time-barred. Having reviewed the record, the Court agrees that the petition is untimely.
A. The Petition Was Filed Beyond The Limitations Period
The Antiterrorism And Effective Death Penalty Act (“AEDPA”) provides a remedy for a state prisoner to petition for a writ of habeas corpus when his continued custody is in violation of federal law. See 28 U.S.C § 2254(a); Harrington v. Richter, 562 U.S. 86, 97, 131 S.Ct. 770, 783 (2011) (“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by [AEDPA]”). “Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action,” however, “the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254.” Visich v. Walsh, No. 10-CV-4160, 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013).
One of those procedural requirements is the statute of limitations. The statute of limitations to file a habeas petition for a prisoner seeking relief from a state-court judgment is one year. 28 U.S.C. § 2244(d)(1). The one-year filing period begins on the latest of four dates: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 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 by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D).
In this case, the first subsection, 28 U.S.C. § 2244(d)(1)(A), determines the commencement of the one-year statute of limitations. Nothing in the petition or the record suggests that another provision would apply. To satisfy the statute of limitations, Rodriguez therefore must have filed his petition within one year from the date on which the state-court judgment became final.
A conviction becomes final under the AEDPA by virtue of the exhaustion of all direct appeals or expiration of the time period for filing such direct appeals. 28 U.S.C. § 2244(d)(1)(A); see Anderson v. O'Gara, No. 01-CV-5712, 2002 WL 1633917, at *3 (S.D.N.Y. July 23, 2002). When, as here, the Court Of Appeals denies leave to appeal and the petitioner does not seek a writ of certiorari from the United States Supreme Court, the judgment of conviction becomes final 90 days after the denial of leave to appeal. See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005); Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (“a petitioner's conviction becomes final for AEDPA purposes when his time to seek direct review in the United States Supreme Court by writ of certiorari expires”) (internal quotation marks and brackets omitted).
The 90-day period is drawn from the time to file for certiorari in the Supreme Court. A party has ninety days in which to file a petition for a writ of certiorari requesting review of a state court decision. Sup. Ct. R. 13(1); Bowles v. Russell, 551 U.S. 205, 212, 127 S.Ct. 2360, 2365 (2007); Saunders v. Senkowski, 587 F.3d 543, 547-548 (2d Cir. 2009).
Here, the New York Court Of Appeals denied Rodriguez's leave for appeal on October 18, 2018, and Rodriguez did not seek Supreme Court review. Rodriguez's court conviction thus became final 90 days later, on January 17, 2019, when the window for seeking certiorari expired. 28 U.S.C. § 2244(d)(1)(A); see Williams, 237 F.3d at 150-51; Feliciano v. Lee, 18-CV-9591, 2020 WL 5076865, at *6-7 (S.D.N.Y. Aug. 22, 2020). If Rodriguez wanted to timely file a habeas petition in federal court, he had to file no later than January 17, 2020. Rodriguez did not, however, file his petition until September 6, 2020, more than seven months after the deadline passed. Rodriguez's petition thus is barred by the statute of limitations unless an exception applies. As discussed next, none of the possible exceptions - statutory tolling, equitable tolling, or proof of actual innocence - applies here.
B. Statutory Tolling Does Not Save Rodriguez's Petition
AEDPA contains a tolling provision providing that “[t]he time during which a properly filed application for state post-conviction or 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). “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).
In his petition, Rodriguez contends that his § 440.20 resentencing motion tolled the limitations period from August 12, 2019 to April 24, 2020. But Rodriguez did not serve and file that motion until January 23, 2020 - six days after the one-year statute of limitations period already had expired. In order to toll the statute of limitations, a state court motion must be pending during the limitations period. Because Rodriguez filed his state court motion after the statute of limitations deadline and not during the statute of limitations period, tolling does not apply, and the petition is untimely. See, e.g., Diaz v. Kelly, 515 F.3d 149, 152 (2d Cir. 2008) (“Because his one year statutory filing period had already expired, this subsequent state court collateral attack does not toll the federal limitations period”); Pleasant v. Capra, No. 16-CV-9842, 2018 WL 9539170, at *5 (S.D.N.Y. Aug. 1, 2018) (“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”), R. & R. adopted, 2018 WL 9539116 (S.D.N.Y. Sept. 6, 2018); Mears v. Graham, No. 13-CV-8737, 2014 WL 4060022, at *9 (S.D.N.Y. Aug. 14, 2014) (finding that the limitations period cannot be statutory tolled where motions were filed after the AEDPA expiration) (collecting cases).
Pet. at 23.
Dkt. 12, Ex. 1. Although not determinative, Respondent's counsel represents that counsel conferred with the Clerk's Office of New York County Supreme Court which advised that Rodriguez did not file any motions in August 2019.
C. Equitable Tolling Also Does Not Apply
In Holland v. Florida, the Supreme Court found that the AEDPA limitations period “is subject to equitable tolling in appropriate cases.” 560 U.S. 631, 645, 130 S.Ct. 2549, 2560 (2010). Equitable tolling permits a court to entertain an otherwise untimely habeas petition if the petitioner establishes: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id., 560 U.S. at 649, 130 S.Ct. at 2562 (internal quotation marks omitted). The Second Circuit has noted that “[a]s a general matter, we set a high bar to deem circumstances sufficiently ‘extraordinary' to warrant equitable tolling.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011). “The term ‘extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). The petitioner bears the burden of establishing entitlement to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814 (2005).
Rodriguez cannot meet his burden to establish equitable tolling. His petition does not even mention equitable tolling or assert any facts that would give rise to the type of “extraordinary” circumstances that merit equitable tolling here. See, e.g., Dillon, 642 F.3d at 364 (attorney “affirmatively and knowingly misle[d]” petitioner that attorney would file on time (emphasis in original)); Diaz v. Kelly, 515 F.3d 149, 154-155 (2d Cir. 2008) (state appellate court failed to inform prisoner that leave to appeal was denied); Baldayaque v. United States, 338 F.3d 145, 150-153 (2d Cir. 2003) (attorney willfully ignored his client's explicit instruction to file his habeas petition); Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (remanding petition to the district court where petitioner's sworn statements established that he was unable to file a timely petition because his legal papers were confiscated).
D. Actual Innocence
Finally, in the habeas context, a petitioner may be able to overcome the bar posed by the statute of limitations based on convincing proof of “actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 386, 133 S.Ct. 1924, 1928 (2013). To make a colorable claim of actual innocence sufficient to pass the “gateway” beyond a procedural bar such as the statute of limitations, a petitioner must establish that it is “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 2076-77 (2006) (internal quotation marks omitted); see also McQuiggin, 569 U.S. at 386-87, 133 S.Ct. at 1928 (“tenable actualinnocence gateway pleas are rare”). The petitioner must also present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” House, 547 U.S. at 537, 126 S.Ct. at 2077 (internal quotation marks omitted); Doe v. Menefee, 391 F.3d 147, 161-162 (2d Cir. 2013) (same). Nothing in Rodriguez's petition or other filings set forth any new evidence of innocence. The statute of limitations bar remains very much in place.
CONCLUSION
For the foregoing reasons, I recommend that the petition for habeas corpus be dismissed as barred by the statute of limitations.
DEADLINE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable George B. Daniels, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.
Respectfully submitted, Copies transmitted this date to all counsel of record.
The Clerk's Office is directed to mail a copy of this Report and Recommendation to Petitioner and note service on the docket:
Johnny Rodriguez DIN No. 13A4026 Downstate Correctional Facility P.O. Box F Red Schoolhouse Rd. Fishkill, NY 12524