RAYMOND WALLACE, Petitioner, - against - SUPERINTENDENT OF THE CLINTON CORRECTIONAL FACILITY, Respondent.
13 Civ. 3989 (NSR) (PED)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 7, 2014
HONORABLE NELSON STEPHEN ROMÁN, UNITED STATES DISTRICT JUDGE; PAUL E. DAVISON, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
I. INTRODUCTION
Raymond Wallace (Petitioner), proceeding pro se, seeks a federal writ of habeas corpus pursuant to
II. BACKGROUND
A. State Court Proceedings
1. Conviction and Sentence
On September 15, 1998, Petitioner was convicted of the following criminal offenses: one count of aggravated assault on a police officer; one count of attempted murder in the first degree; one count of criminal possession of a weapon in the second degree; one count of assault
He was sentenced as a second felony offender to a determinate term of imprisonment of 25 years for aggravated assault on a police officer; an indeterminate term of 25 years to life for attempted murder in the first degree, to run consecutively to the 25 year sentence for aggravated assault on a police officer; a determinate term of 15 years for criminal possession of a weapon in the second degree; a determinate term of 15 years for assault in the first degree; determinate terms of 25 years for the first six counts of robbery in the first degree, all to run concurrently; a determinate term of 15 years for attempted robbery in the first degree, to run concurrently with the previous six counts of robbery in the first degree; determine terms of 25 years for an additional six counts of robbery in the first degree to run consecutive to one another; and a determinate term of 15 years for attempted robbery in the first degree to run concurrently with the second six counts of robbery in the first degree. See Resp’t’s Mem. of Law in Supp. of Mot. to Dismiss Pet. for Habeas Relief (Resp’t’s Mem.), at 2. (Dkt. 12).
2. Direct Appeal
Petitioner appealed to the New York State Appellate Division, Second Department. The Appellate Division affirmed the conviction on April 8, 2002. People v. Wallace, 293 A.D.2d 556 (2002). The New York Court of Appeals denied leave to appeal on August 29, 2002. People v. Wallace, 98 N.Y.2d 714 (2002). Petitioner did not seek a writ of certiorari to the United States Supreme Court. See Resp’t’s Mem., at 2-3.
3. Subsequent Events
Approximately one week after his conviction and sentence in New York, Petitioner was transferred to an Indiana prison. See Pet’r’s Affidavit (Pet’r’s Aff.) ¶ 16. Petitioner had been
B. Federal Court Proceedings
By pro se application dated May 29, 2013, Petitioner seeks a federal writ of habeas corpus. He presents the following arguments in his petition:
- AEDPA’s one-year limitations period begins in 2010 when Petitioner returned to New York after being incarcerated in an Indiana prison, which lacked New York State legal materials.
- AEDPA’s one-year limitations period is equitably tolled for the period from 2010 to 2012 because the attorney Petitioner’s family retained spent that time preparing a
N.Y. Crim. Proc. Law § 440.10 motion to vacate the judgment of conviction and later refused to continue representation due to the non-payment of legal fees. - Petitioner is actually innocent.
- AEDPA’s statute of limitations is unconstitutional.
The habeas proceedings should be stayed until Petitioner exhausts his state claims. - Petitioner’s conviction was obtained despite Rosario violations and trial court errors involving witness testimony and voir dire.
- The prosecutor engaged in misconduct.
- Petitioner’s sentence violates the Eighth Amendment because it is excessive.
See Pet’r’s Appl., at 2-4. (Dkt. 1).
Respondent filed its motion to dismiss the petition as time-barred on October 9, 2013. (Dkt. 10). Petitioner did not file a reply.
III. DISCUSSION
A. Applicable Law
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
Pertinent here is AEDPA’s strict, one-year statute of limitations. See
(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.
In rare and exceptional circumstances, a court may equitably toll the one-year limitations period. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Equitable tolling is warranted where a petitioner shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 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 obstacles impeding compliance with a limitations period. Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). To secure equitable tolling, it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline. Id. Finally, [c]onsistent with the maxim that equity aids the vigilant, a petitioner seeking equitable tolling of AEDPA’s
B. Timeliness of Petitioner’s Application
Acknowledging that more than a decade elapsed between the time Petitioner’s conviction became final (in 2002) and the time he filed this habeas action (in 2013), Petitioner contends that his petition was timely filed pursuant to
Here, Petitioner’s judgment of conviction became final on November 25, 2002. The New York Court of Appeals denied Petitioner leave to appeal on August 29, 2002. Petitioner’s deadline to file for a writ of certiorari in the United States Supreme Court was November 25, 2002.
2. Section 2244(d)(1)(B)
Applying the liberal interpretation to which a pro se petitioner is entitled, Petitioner can be read to claim that the starting date for AEDPA’s one-year limitations period should be
Here, even assuming that a lack of New York State legal materials in the Indiana prison law library hindered Petitioner’s ability to file post-conviction motions in New York State court, the lack of New York State legal materials cannot be said to have hindered Petitioner’s ability to
Accordingly, I conclude — and respectfully recommend that your Honor conclude — that the timeliness of Petitioner’s habeas relief not be calculated pursuant to
3. Equitable Tolling
Petitioner argues that the one-year limitations period should be equitably tolled for the period of his incarceration in Indiana, claiming that the lack of New York legal materials in the Indiana prison law library constituted an extraordinary circumstance. See Pet’r’s Appl., at 20-21. Petitioner also asserts that the time spent by his attorneys in preparing New York State post-conviction motions should equitably toll the statute.
Equitable tolling requires a petitioner to show (1) that he diligently pursued his application during the time he seeks to have tolled and (2) that an extraordinary circumstance prevented him from timely filing his writ of habeas corpus. Pace, 544 U.S. at 418. Both elements are required in order for a court to equitably toll the one-year limitations period under AEDPA.
First, a petitioner must demonstrate that he diligently pursued his legal rights during the time he seeks to have tolled.
Second, a petitioner must demonstrate that an extraordinary circumstance prevented him from timely filing his writ of habeas corpus. Pace, 544 U.S. at 418. In determining whether a circumstance is extraordinary, the court must consider how severe an obstacle it is for the prisoner to comply with the one-year limitations period. Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008). See, e.g., Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003) (finding that an attorney’s outrageous and incompetent conduct constitutes an extraordinary circumstance); Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000) (noting that an extraordinary circumstance exists where prison officials intentionally prevent a petitioner from timely filing his habeas petition by confiscating his legal papers). Moreover, a petitioner must demonstrate that the extraordinary circumstance caused petitioner to miss the filing deadline. Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). That is, a petitioner must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
Here, Petitioner cannot show either prerequisite for an equitable toll. First, Petitioner has failed to describe the efforts that he undertook to prepare and file either his state or federal applications. See, e.g., Nickels v. Conway, 480 F. App’x 54, 58-59 (2d Cir. 2012) (finding that, after counsel abandoned him, Petitioner exercised due diligence by seeking the assistance of law
Second, Petitioner has not demonstrated that his inability to access New York State legal materials at the Indiana prison constituted an extraordinary circumstance which prevented him from completing and timely filing his federal habeas petition. Petitioner’s lack of state legal materials did not affect his ability to research and prepare a habeas application based on federal law. See, e.g., Watson v. Smith, 268 F. App’x 86, 87 (2d Cir. 2008) (lack of New York State legal materials does not constitute an extraordinary circumstance where petitioner did not also allege he lacked access to federal law materials); Hizbullahankhamon v. Walker, 255 F.3d 65, 76 (2d Cir. 2001) (...even assuming that the alleged deprivation of access to his legal materials and the law library constituted an extraordinary circumstance warranting equitable tolling, petitioner cannot show that this extraordinary circumstance prevented him from filing a timely habeas petition.). Moreover, any argument that Petitioner required additional time to research and develop his federal claims is, without more, insufficient to establish an extraordinary circumstance that would warrant an equitable toll.
Finally, to the extent that Petitioner argues that the time between 2010 and 2012 should be tolled, that argument is meritless. Petitioner asserts that his counsel resigned on February 29, 2012, but Petitioner did not file his habeas petition until May 29, 2013 — fifteen months later. See Pet’r’s Appl., at 25. Thus, the petition was untimely even if Petitioner received the benefit of equitable tolling.
Because Petitioner cannot establish grounds for equitable tolling, Petitioner’s May 29, 2013 habeas petition is time-barred.
C. Actual Innocence
Petitioner claims that his untimely habeas filing should be excused because he is actually innocent. Specifically, Petitioner maintains that, the evidence shows that [he] was not the person who shot the 9 mm gun that injured one officer. Pet’r’s Appl., at 26. Respondent contends that Petitioner fails to show actual innocence because he provides no new evidence to establish his innocence. See Resp’t’s Mem., at 11. I agree with Respondent.
A claim of actual innocence may be used as a gateway to circumvent AEDPA’s statute of limitations. Fischer, 687 F.3d at 539, 552. To establish actual innocence, a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 327 (1995). Petitioner’s actual innocence must be supported with new reliable evidence that was not presented at trial. Schlup, 513 U.S. at 324.
Petitioner fails to establish actual innocence because he does not provide any new evidence demonstrating that he was not the gunman. Petitioner only maintains that the evidence
D. Constitutionality of AEDPA’s Statute of Limitations
Finally, Petitioner contends that AEDPA’s one-year limitations period is unconstitutional. See Pet’r’s Appl., at 27. Respondent maintains this claim is meritless. See Resp’t’s Mem., at 11. I agree with Respondent.
Procedural limitations violate the Suspension Clause if [the limitations] create an unreasonable burden to habeas relief. James v. Walsh, 308 F.3d 162, 168 (2d Cir. 2002) (quoting Rodriguez v. Artuz, 990 F. Supp. 275, 282 (S.D.N.Y. 1998)). As long as the procedural limits on habeas leave petitioners with some reasonable opportunity to have their claims heard on the merits, the limits do not render habeas inadequate or ineffective to test the legality of detention and, therefore, do not constitute a suspension of the writ in violation of Article I of the United States Constitution. Rodriguez, 990 F. Supp. at 282.
It is well-established that AEDPA’s statute of limitations is unconstitutional because it does not create an unreasonable burden to federal habeas relief, and that the one-year limitations period provides petitioners with a reasonable opportunity to have their habeas claims heard.
IV. CONCLUSION
For the reasons set forth above, I conclude — and respectfully recommend that Your Honor should conclude — that Respondent’s motion to dismiss be GRANTED and the petition DISMISSED.
Dated: April 7, 2014
White Plains, New York
Respectfully Submitted,
Paul E. Davison
United States Magistrate Judge
Southern District of New York
A copy of the foregoing Report and Recommendation has been mailed to the following:
Raymond Wallace, pro se
DIN 10-A-4961
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Pursuant to
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Román.