Opinion
21-CV-00054 (LLS)
01-06-2021
ANTHONY WILLIAMS, Petitioner, v. J. NOETH, Respondent.
ORDER TO SHOW CAUSE
LOUIS L. STANTON, UNITED STATES DISTRICT JUDGE:
Petitioner, currently incarcerated in Marcy Correctional Facility, brings this pro se petition under 28 U.S.C. § 2254, challenging his 2013 conviction in the New York Supreme Court, Bronx County. By order dated January 5, 2021, the Court granted Petitioner's request to proceed in forma pauperis (IFP). The Court directs Petitioner to file a declaration within sixty days of the date of this order showing cause why this application should not be denied as time-barred.
Petitioner filed this petition in the United States District Court for the Western District of New York, and that court transferred the matter here. See Williams v. Noeth, No. 20-CV-01909 (W.D.N.Y. Jan. 4, 2021).
DISCUSSION
I. Applicable Statute of Limitations
Petitioner's application may be time-barred. A prisoner seeking habeas relief under § 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 June 14, 2013, he was convicted in the New York Supreme Court, Bronx County. Court records indicate that on February 21, 2019, the New York Supreme Court Appellate Division, First Department, affirmed the conviction, People v. Williams, 169 A.D.3d 567 (1st Dep't Feb. 21, 2019), and on June 14, 2019, the New York Court of Appeals denied leave to appeal, 33 N.Y.3d 1075. Petitioner's conviction consequently became final on September 14, 2019, following “the expiration of [the] 90-day period of time to petition for certiorari in the Supreme Court of the United States.” Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000). Petitioner placed this petition in the prison mail collection box on December 18, 2020, more than one year and three months after the judgment of conviction became final.
Petitioner does provide an excuse for failing to file a habeas petition within one year from when his judgment of conviction became final. On the portion of the habeas corpus form prompting Petitioner to address the timeliness of his filing, he asserts the following, verbatim:
In doing my own research, In have problem understanding the law, Appellate Counsel did not give any direction once direct appeal was done. In I been trying to find counsel, plus I been [sic] [writing] any one in the Criminal Justice address book never a response.(ECF 1 ¶ 18.)
But in the habeas context, ignorance of the law is not grounds for equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000); Ruiz v. Poole, 566 F.Supp.2d 336, 341 (S.D.N.Y. 2008) (“Ignorance of the law does not constitute a rare and extraordinary circumstance that would merit equitable tolling.”) Although a pro se litigant is accorded “some degree of latitude” in meeting filing requirements, “[it] has long been recognized that ignorance does not excuse lack of compliance with the law.” Velasquez v. United States, 4 F.Supp.2d 331, 334-35 (S.D.N.Y. 1998). “Pro se status does not in itself constitute an extraordinary circumstance meriting tolling.” Doe v. Menifee, 391 F.3d 147, 175 (2d Cir. 2004). Petitioner's assertions are insufficient to show that some extraordinary circumstance prevented him from timely submitting this petition. Plaintiff is granted leave to provide any additional facts to make that showing.
II. Leave to File Declaration
The Court directs Petitioner to file a declaration within sixty days of the date of this order stating why this application should not be denied as time-barred. Petitioner 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 § 2244(d) for habeas corpus petitions under § 2254 is subject to equitable tolling in appropriate cases).
Petitioner should also include in the declaration a listing of: (1) the dates that all postconviction applications in state court challenging this conviction were filed, including any petition for a writ of error coram nobis, all motions under N.Y. Crim. P. L. § 440, and any other postconviction applications; (2) when any postconviction applications were decided; (3) the dates that any appeals or applications for leave to appeal from those decisions were filed; (4) when those appeals or applications were decided; and (5) when Petitioner received notice of any state court decisions on those applications and appeals. See 28 U.S.C. § 2244(d)(2).
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket. Petitioner is directed to file a declaration within sixty 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. Plaintiff must submit the declaration to this Court's Pro Se Intake Unit within sixty days of the date of this order, and label the document with docket number 21-CV-00054 (LLS). No answer shall be required at this time.
If Petitioner timely files a declaration, the Court shall review it, and if proper, shall 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, the petition will be denied as time-barred.
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.
SO ORDERED.
Petition for Relief From a Conviction or Sentence By a Person in State Custody
(Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus)
Instructions
1. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief.
2. You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under 28 U.S.C. § 2255 in the federal court that entered the judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.
6. You must pay a fee of $5. If the fee is paid, your petition will be filed. If you cannot pay the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. If your account exceeds $___, you must pay the filing fee.
7. In this petition, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different court (either in the same state or in different states), you must file a separate petition.
8. When you have completed the form, send the original and ___ copies to the Clerk of the United States District Court at this address:
Clerk, United States District Court for Address
City, State Zip Code
9. CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.
10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.
AMENDED.