Opinion
01 Civ. 2550 (RWS).
February 11, 2002
JUAN CUEVAS, a/k/a JUAN PEREZ, Petitioner Pro Se, Hawley, PA.
HONORABLE ELIOT L. SPITZER, Attorney General of the State of New York Attorney for Respondent, New York, NY., By: BETH J. THOMAS, ESQ. Assistant Attorney General, Of Counsel.
O P I N I O N
Petitioner Juan Cuevas ("Cuevas") has filed for the issuance of a writ of habeas corpus under 28 U.S.C. § 2254 naming as respondent the People of the State of New York (the "State") and the State has moved to dismiss the petition. For the reasons set forth below, the motion is granted.
Prior Proceedings
Cuevas was convicted of Attempted Criminal Possession of a Controlled Substance in the Fourth Degree, N.Y. Penal Law §§ 110.00/220.09, on June 27, 1997, following his plea of guilty to that charge. He was sentenced in accordance with a negotiated promise to a term of from two to four years in prison, a term which has been completed. He is presently incarcerated at an Immigration and Naturalization Service ("INS") facility in Pennsylvania.
In December 1997, the INS sought an order of removability against Cuevas based on two felony narcotics convictions and on May 15, 1998, a deportation order was issued. Cuevas appealed the order to the Board of Immigration Appeals, and on December 10, 1998, the Board denied Cuevas's appeal. Cuevas then filed a federal habeas corpus petition in the District Court for the Northern District of New York challenging his INS custody and the circumstances surrounding the deportation order. A decision was issued in December 1999 in which the court denied the INS's motion to dismiss on jurisdictional grounds. Cuevas v. INS, No. 99 Civ. 0048, 1999 WL 1270613 (N.D.N.Y. Dec. 29, 1999) (relying on Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998) and Henderson v. INS, 157 F.3d 106 (2d Cir. 1998) for the conclusion that federal district courts retain subject matter jurisdiction for § 2241 habeas petitions).
In February of 2000, Cuevas moved in the Supreme Court of the State of New York to vacate his state criminal conviction under New York Criminal Procedure Law § 440.10 on the grounds of lack of capacity, ineffective counsel, and that he was never told that he could be deported as a result of his guilty plea. On May 17, 2000, the Honorable Rena K. Uviller, Justice of the Supreme Court, New York County, denied the motion to vacate the judgment. On June 19, 2000, Cuevas sought leave to appeal the denial of his motion to vacate the judgment and on October 30, 2000, the leave application was denied. No further appeal appears to have been noticed.
On January 23, 2001, Cuevas filed this second federal habeas corpus petition challenging his INS custody, naming the State as respondent and reiterated the attacks on his state court criminal conviction previously raised in his state court motion to dismiss. On March 26, 2001, the Honorable Michael B. Mukasey, Chief Judge, issued an order stating that Cuevas had incorrectly named the State as respondent, directing Cuevas to amend his petition to name the correct respondent and providing that Cuevas's amended petition would replace the original petition in all respects, and directing an affirmation attesting to why his petition was not barred by the applicable statute of limitations.
On May 28, 2001, Cuevas filed an amended petition in which he named as respondent the warden of the Pennsylvania facility in which he was being held by the INS and an affirmation in which he attributed his failure to file a timely petition to his lack of legal expertise.
On June 20, 2001, Cuevas's habeas corpus proceeding was reassigned to this Court and on September 5, 2001, by order to show cause, this Court directed the Attorney General of the State of New York to file an answer or move. The instant motion was marked fully submitted on November 14, 2001.
The State is Not a Party
The amended petition which named the warden of the Pennsylvania facility in which Cuevas is currently being incarcer- ated by the INS "completely replace[s the] initial petition." Order, March 26, 2001. Accordingly, the State is no longer a named respondent in this matter, and it is thus inappropriate for the Attorney General of the State of New York to respond to this petition. See generally Cinquemani v. Ashcroft, No. 00 Civ. 1460 (RJD), 2001 WL 939664, at *3 (E.D.N.Y. August 16, 2001) ("There is no question" that the Attorney General of the United States, the INS and the INS Commissioner are "legal custodian[s]" of a habeas petitioner being held in INS custody). The March 26, 2001 order directing Cuevas to name an appropriate respondent is entirely consistent with the Supreme Court's observation that where a criminal defendant's state sentence has been fully served, he is no longer in custody for purposes of a federal habeas corpus proceeding. See Maleng v. Cook, 490 U.S. 488 (1989). See also Kandiel v. United States, 964 F.2d 794, 796 (8th Cir. 1992) ("Because Kandiel's sentence was fully expired by the time he filed his section 2255 motion and the current deportation proceedings against him are merely a collateral consequence of his conviction, he is not `in custody' for the purposes of section 2255").
Cuevas received a prison sentence of from two to four years which would have expired no later than June 27, 2001.
A habeas petitioner who has completed his sentence and was the subject of an INS deportation order cannot attack his underlying state court criminal conviction in a federal habeas corpus proceeding because he was no longer in custody with respect to the expired state conviction. Neyor v. INS, 155 F. Supp.2d 127 (D.N.J. 2001). Accordingly, the amended petition, which attempts to attack the validity of his state criminal court conviction is dismissed since he is no longer in state custody.
The Amended Petition is Barred by the Statute of Limitations 28 U.S.C. § 2244(d)(1) mandates that a federal habeas corpus petitioner file his petition within a one-year statute of limitations period. Under this provision, the one-year statutory period begins to run from the latest of several dates, only one of which is relevant here, i.e., "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The one-year limitations period "does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). The limitations period may be tolled during the pendency of a properly filed application for state post-conviction relief, and may be equitably tolled in appropriate circumstances. See Acosta v. Artuz, 221 F.3d 117, 119 (2d Cir. 2000).
In the instant case, Cuevas was convicted on June 27, 1997 and under New York law had thirty days from that conviction date in which to file a notice of appeal. C.P.L. § 460.10(1). However, Cuevas has not alleged that he pursued a direct appeal of his state conviction. The only attack he made on his state court conviction was his C.P.L. § 440.10 motion to vacate the judgment. In these circumstances, his conviction became "final" for purposes of the AEDPA limitations period on the thirtieth day following his conviction, i.e., July 27, 1997.
Cuevas has contended that he was unable to file his petition earlier because of his "incarceration, lack of knowledge, and not obtaining legal help," and his ignorance of the one-year limitations period. However, it is well-settled that "ignorance of the law" does not entitle a petitioner to equitable tolling. See e.g., Rhodes v. Senkowski, 82 F. Supp.2d 160, 172 n. 7 (S.D.N.Y. 2000); Fennell v. Artuz, 14 F. Supp.2d 374, 377 (S.D.N Y 1997). See also Hunter v. Kuhlman, No. 97 Civ. 4692 (DC) 1998 WL 182441, at *1 (S.D.N.Y. April 16, 1998) (no equitable tolling where petitioner claimed "lack of legal expertise and difficulty in getting assistance"). Lack of legal counsel is not dispositive since there is no right to representation on a habeas proceeding. See Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993). Nor was the relevant limitations period tolled by Cuevas's C.P.L. § 440.10 motion for post-conviction relief, since that motion was not filed until February of 2000 — some eighteen months after the statutory limitations period had expired.See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Scarola v. Kelly, No. 99 Civ. 4704 (HB), 2001 WL 849449, at *3 (S.D.N.Y. July 27, 2001) (the filing of a post-judgment state court motion does not restart the one year limitations period; "tolling extends that time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired").
There is therefore no grounds upon which Cuevas can proceed. His petition is barred by the statute of limitations since it was filed more than three years after his conviction became final.
Conclusion
For the foregoing reasons, Respondent's motion to dismiss Cuevas' petition for a writ of habeas corpus is granted. Accordingly, Cuevas' petition is denied. As Cuevas has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
It is so ordered.