Opinion
15 Civ. 1087 (VB) (PED)
08-23-2018
ALVIN J. RODRIGUEZ, Petitioner, v. CHRISTOPHER MILLER, Respondent.
REPORT AND RECOMMENDATION
TO THE HONORABLE VINCENT L. BRICCETTI, United States District Judge:
I. INTRODUCTION
Petitioner Alvin J. Rodriguez ("Petitioner"), who appears pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2010 Orange County conviction on a robbery charge arising out of a knifepoint holdup of a convenience store in Middletown, New York, Petitioner pleaded guilty on June 29, 2010, and on September 13, 2010, the Court imposed a 10 year prison term to be followed by 5 years' post-release supervision.
This petition comes before me pursuant to an Order of Reference dated June 16, 2015. Dkt. 8. For the reasons set forth below, I respectfully recommend that the petition be DISMISSED AS TIME-BARRED. II. BACKGROUND
Unless otherwise indicated, the information within this section is gleaned from the instant petition ("Pet."), Dkt. 2, Respondent's Affirmation in Opposition to Petition for Writ of Habeas Corpus, Memorandum of Law, and Exhibits ("Opp."), Dkts. 13-14, and Petitioner's Affirmation in Reply, Dkt. 18 ("Reply").
A. Factual Background
In the early morning hours of January 11, 2010, at a Sunoco Convenience Store in Middletown, Orange County, New York, Petitioner and a masked accomplice, who was never identified, confronted a store clerk at knifepoint, demanding lottery tickets and money. A customer was also robbed and held at knifepoint. The robbers made off with $2,340 in lottery tickets and $1,500 in cash. Petitioner was identified by a witness, and also by a security video that showed Petitioner entering to rob the store with his face uncovered. On February 1, 2010, Petitioner was arrested.
B. Procedural Background
On March 1, 2010, the Grand Jury charged Petitioner under Indictment 2010-090 with Robbery in the First Degree and related charges. After pretrial proceedings not pertinent here, Petitioner appeared in County Court on June 29, 2010 and pleaded guilty to Robbery in the First Degree in satisfaction of the indictment. On September 13, 2010, the the court sentenced Petitioner to a determinate term of imprisonment of ten years and to five years of post-release supervision. Petitioner is currently serving that sentence.
Petitioner did not file a notice of appeal within the thirty days prescribed by the statute. C.P.L. § 460.10. More than two years later, however, on or about January 28, 2013, Petitioner filed a motion to file a late notice of appeal and for poor person's relief and assignment of appellate counsel. Ex. 6. The People opposed the motion on February 4, 2013. Ex. 7. In a decision and order dated March 22, 2013, the Appellate Division denied Petitioner's motion. Ex. 8. On or about July 8, 2013, Petitioner filed a motion to vacate judgment. Ex. 9. The People opposed the motion. Ex. 10. In August 29, 2013, the County Court summarily denied the motion. Ex. 12. Petitioner then sought leave to appeal. Ex. 13. On February 19, 2014, the Appellate Division denied Petitioner's application for leave to appeal. Ex.16.
Hereinafter, all references to "Ex." shall refer to exhibits to the Affirmation in Opposition to a Petition for a Writ of Habeas Corpus, Dkts. 13-14.
The instant federal habeas petition is dated February 11, 2015 and was filed on February 13, 2015. Dkt. 2.
III. LEGAL STANDARDS
"Habeas review is an extraordinary remedy." Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the Petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254 as modified by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pertinent here is AEDPA's strict, one-year statute of limitations. See 28 U.S.C. § 2244(d). The statute provides four different potential starting points for the limitations period, and specifies that the latest of these shall apply. See id. § 2244(d)(1). Under the statute, the limitation period is tolled only during the pendency of a properly filed application for State post-conviction relief, or other collateral review, with respect to the judgment to be challenged by the petition. See id. § 2244(d)(2). The statute reads as follows:
(d)(1) 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 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.
(d)(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. § 2244(d).
The one-year limitation period is subject to equitable tolling, which is warranted when a petitioner has shown "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing." Holland v. Florida, 130 S. Ct. 2549, 2262 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In the Second Circuit, equitable tolling is confined to "rare and exceptional circumstance[s]," Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (internal quotation omitted), which have "prevented [the petitioner] from filing his petition on time." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (internal quotation marks and emphasis omitted). The applicant for equitable tolling 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." Valverde, 224 F.3d at 134.
IV. DISCUSSION
A. The Petition is untimely.
Respondent contends that the petition should be dismissed because it is barred by the one-year statute of limitations under AEDPA. Opp. at 7-11. I agree.
The one year statute of limitations under AEDPA runs from the "date on which the judgment becomes final by conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final when the time for filing a notice of appeal from the judgment of conviction expires. See N.Y. Crim. Pro. Law. § 460.10(1); Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002). Under state law, a petitioner has thirty days from sentencing to file a notice of appeal. C.P.L. § 460.10(1). Thus, if the petitioner does not file a notice of appeal, his conviction becomes final thirty days after sentencing.
Here, Petitioner was sentenced on September 13, 2010. Petitioner had thirty days thereafter to file a notice of appeal, C.P.L. § 460.10(1), but failed to do so. Since Petitioner did not file a notice of appeal, his judgment became final thirty days after his sentencing — on October 13, 2010 — and there was no reason to add the additional ninety day period to seek review in the Supreme Court of the United States. Caspai v. Bohlen, 510 U.S. 383, 390 (1994). The one year limitations period, therefore, began to run on October 13, 2010 and Petitioner had until October 13, 2011 file his petition for habeas corpus relief. Petitioner did not seek habeas review until February 11, 2015, more than three years later.
His petition dated February 11, 2015 was docketed by the Court on February 13, 2015. Where, as here, a prisoner proceeds pro se, the Court deems the prisoner as having filed a court document on the date that he delivered it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 273 (1988). As the instant petition is dated February 11, 2015, the Court will treat that date as the date of filing in the absence of any evidence that Petitioner actually delivered the petition to prison officials on a later date.
Petitioner's post-conviction motions do not impact this analysis. An application for state post-judgment relief or collateral review may toll the limitations period but does not restart it. 28 U.S.C. § 2244(d)(2); Duncan v. Walker, 533 U.S. 167, 172 (2001); Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001). A motion for leave to file a late notice of appeal also does not restart the AEDPA limitations clock. Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002).
On January 28, 2013, Petitioner filed a motion for an extension of time to take an appeal from a judgment of the County Court under C.P.L. § 460.30. Petitioner's motion was denied by the Appellate Division on March 22, 2013. On July 8, 2013, the District Attorney's Office received a copy of Petitioner's motion to vacate judgment. Ex. 9. The People opposed the motion. Ex. 10. In August 29, 2013, the County Court summarily denied the motion. Ex. 12. Petitioner sought leave to appeal from the August 29, 2013 Appellate Division decision and order. Ex. 13. The People opposed Petitioner's application. Ex. 15. On February 19, 2014, the Appellate Division denied Petitioner's application for leave to appeal. Ex.16.
Accordingly, I respectfully recommend that the Court find that the petition is time-barred.
B. Equitable Tolling
Petitioner has made no argument in support of equitable tolling.
Under equitable tolling principles, Petitioner bears the burden of establishing that he pursued his rights diligently and that some extraordinary circumstance stood in his way and prevented him from timely filing his petition. Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuidlielmo, 544 U.S. 408, 418 (2005). The term "extraordinary" refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with the limitations period. Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (citations omitted).
Here, Petitioner filed an Affirmation of Timeliness, Dkt. 5, in response to this Court's order directing that Petitioner file such an affirmation. Dkt. 4. In his affirmation, Petitioner reiterates the reasons he believes he is entitled to habeas relief, including his alleged ineffective assistance of counsel. However, garden variety claims of attorney neglect or negligence generally do not warrant equitable tolling. Lawrence v. Florida, 549 U.S. 327, 336 (2007). Petitioner's claim of "unawareness of the law" also fails, District courts in the Southern District have uniformly found that a lack of familiarity with the legal system is not a "rare and exceptional" circumstance, and thus is not a basis for equitable tolling. Ayala v. Fischer, No. 04 Civ. 3404, 2004 U.S. Dist. LEXIS 21955, at *4 (S.D.N.Y. Nov. 2, 2004). Despite this Court's prodding, Petitioner makes no claims that he has pursued his rights diligently, nor is any effort documented in the record.
Copies of all unpublished opinions and decisions available only in electronic form cited herein have been mailed to Plaintiff. See Lebron v. Sanders, 557 F.3d 76, 78 (2d Cir. 2009).
Accordingly, I respectfully recommend that the Court find that the petition is not subject to equitable tolling.
V. CONCLUSION
For the reasons set forth above, I conclude — and respectfully recommend that Your Honor should conclude — that the instant petition for a writ of habeas corpus should be denied as untimely. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Dated: August 23, 2018
White Plains, New York
Respectfully Submitted,
/s/ _________
PAUL E. DAVISON, U.S.M.J.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days, plus an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon. Vincent L. Briccetti, at the Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Briccetti.
A copy of this Report and Recommendation has been mailed to: Alvin J. Rodriguez, 10-A-4502
Otisville Correctional Facility
P.O. Box 8
Otisville, NY 10963