Opinion
18cv06414 (ER) (DF)
05-25-2023
JAMES O'DONNELL, Petitioner, v. PEOPLE OF THE STATE OF NEW YORK, Respondent.
REPORT AND RECOMMENDATION
DEBRA FREEMAN United States Magistrate Judge.
Proceeding pro se, petitioner James O'Donnell (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction by a jury of three counts of Criminal Possession of a Weapon in the Second Degree, in violation of Section 265.03 of the New York Penal Law, three counts of Criminal Possession of a Weapon in the Third Degree, in violation of Section 265.02 of the New York Penal Law, and eight counts of Criminal Possession of a Weapon in the Fourth Degree, in violation of Section 265.01 of the New York Penal Law. For these crimes, Petitioner was sentenced to an aggregate prison term of 15 years to be followed by five years of post-release supervision. At the time he filed his habeas petition, Petitioner was incarcerated at the Cape Vincent Correctional Facility in Cape Vincent, New York (see Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, dated July 5, 2018 (“Petition” or “Pet.”) (Dkt. 1)), although he failed to name the warden of that facility as Respondent, naming instead the People of the State of New York (see id.). Currently, Petitioner is incarcerated at the Mohawk Correctional Facility in Rome, New York. (See Dkt. 26.)
The proper respondent in a habeas petition challenging present confinement is “the warden of the detention facility with physical custody of the petitioner . . . with the ability to produce the petitioner pursuant to a writ of habeas corpus.” Adikov v. Mechkowski, No. 16cv3797 (JPO), 2016 WL 3926469, at *1 (S.D.N.Y. July 18, 2016) (internal quotation marks and citations omitted). This Court will not, however, recommend dismissal on that basis, as Petitioner is proceeding pro se, and any defect in the caption of the Petition could be easily remedied by amendment. Regardless of any defect in the caption of the Petition, however, if the Court were to adopt the within recommendation that the Petition be dismissed (see Discussion infra), there would be no practical need to amend the caption of this action to name the correct party.
In his Petition, Petitioner asserts four grounds for habeas relief, although the fourth ground is actually comprised of several separate claims. First, Petitioner alleges that his sentencing papers incorrectly state that a plea had been entered and accepted when, in fact, he had pleaded “not guilty.” (Pet. ¶ 12 (Ground One).) Second, he alleges that he received ineffective assistance of trial counsel. (Id. (Ground Two).) Third, he alleges that the District Attorney's Office did not submit a brief in opposition to the motion Petitioner filed pursuant to Section 440.10 of the New York Criminal Procedure Law, and that this “violated [his] rights to rebuttal.” (Id. (Ground Three).) And, finally, he alleges that there was no probable cause to stop, question, or search him; that his Miranda rights were violated; that members of the jury discussed the case during an adjournment and there should have been a mistrial as a result; and that he was “unjustly given a[] lengthy maximum sentence.” (Id. (Ground Four).) In opposition, Respondent argues that the Petition is time-barred, but that all of Petitioner's claims would nevertheless fail on the merits. (See generally Respondent's Memorandum of Law in Opposition to The Petition for a Writ of Habeas Corpus, dated Jan. 4, 2019 (“Resp. Mem.”) (Dkt. 18-1).)
As discussed below, Respondent's contention that the Petition is untimely is persuasive, as Petitioner has failed to show that his claims were made within the applicable limitations period or that, as a matter of equity, the statute of limitations should be tolled or not enforced in this case. Accordingly, I recommend that the Petition be dismissed in its entirety, without need for the Court to reach the merits of Petitioner's claims.
BACKGROUND
A. Factual Background
The background facts, as briefly summarized herein, are taken from evidence presented at Petitioner's trial, which was conducted from April 17 to April 24, 2012.
The transcripts of the state court proceedings in this case have been submitted by Respondent at Dkts. 19, 19-1, and 19-2. The transcript from the pretrial suppression hearings can be found at Dkt. 19, ECF 1-202 (referring to the page numbers affixed to the filing by this Court's Electronic Case Filing (“ECF”) system), and will be referred to herein as “Pretrial Tr.” The transcript from the trial begins at Dkt. 19, ECF 203 through Dkt. 19-2, ECF 165, and will be referred to herein as “Trial Tr.” The transcript from Petitioner's sentencing can be found at Dkt. 19-2, ECF 166-83, and will be referred to herein as “Sentencing Tr.” The transcript from Petitioner's re-sentencing can be found at Dkt. 19-2, ECF 184-88, and will be referred to herein as “Re-Sentencing Tr.” When citing to the pretrial, sentencing, and re-sentencing transcripts, this Court will refer to the page numbers of the actual transcripts. When citing to the trial transcript, however, this Court will refer to both the docket number of the document, as well as the ECF page number, as this transcript spans three different docket entries.
According to the testimony of New York City Police Officer Edward Thompson (“Thompson”), he and his partner, Officer John Sivori (“Sivori”), were on duty in the Greenwich Village area of Manhattan in the early morning of March 16, 2010. (Trial Tr., Dkt. 19-1, at ECF 68-69.) As there had been a lot of burglaries in the area, the officers were on patrol in an unmarked vehicle car, “try[ing] to stop people from breaking into buildings,” and “looking for any suspicious activity.” (Id., at ECF 69.) Thompson testified that, at approximately 2:00 a.m., he noticed Petitioner “trying to gain access into a construction site” at 814 Broadway (id., at ECF 72 (explaining that “it looked like [Petitioner] was trying to pick the lock”)). Thompson further testified that, as soon as he observed Petitioner start to walk away from the site (which Petitioner did after looking in the direction of a security guard) (id., at ECF 74), Thompson got out of the police car and started following Petitioner on foot. (Id., at ECF 75). After walking for about two blocks, Thompson saw Petitioner go into a deli on University Place. (Id., at ECF 74-75.)
Thompson's account of Petitioner's arrest was as follows: Thompson and Sivori (who separately drove to the location of the deli) stopped Petitioner when he exited the deli. (Id., at ECF 76.) They identified themselves to Petitioner as police officers (id., at ECF 77), and Thompson asked Petitioner what he was doing, and why he was “walking [] aimlessly around” (id., at ECF 77). Although Thompson had witnessed Petitioner trying to get into a building by breaking a lock, Petitioner responded to Thompson's question by stating that he was “down there just to get a cup of coffee.” (Id.) Thompson thought this response was unusual both because, when he asked Petitioner where he lived, Petitioner responded that he lived uptown (see id., at ECF 78 (Thompson testifying, “I don't remember the exact street - it was . . . a hundred and something street[, and] we were on the corner of East 8th Street and University. So that, right there, raised a red flag when he was telling me he was there for coffee because there's [], you know, hundreds of delis - especially up by where he lives”)), and because Thompson noticed that Petitioner had tea, rather than coffee, in his hand (id.; see also id., at ECF 163 (Sivori similarly testifying that Petitioner had “a cup of tea in his hand” and that the officers “thought it was odd [that] he said he had come down for coffee and had a cup of tea . . .”).)
Petitioner then reportedly told the officers that he had been in the military, and Sivori asked if Petitioner had any weapons on him. (Id., at ECF 78-79; see also id., at ECF 163.) Petitioner responded that he had a knife on him and indicated that it was on his right side. (Id., at ECF 79.) Thompson and Sivori then proceeded to search Petitioner, finding four daggers in a sheath on the right side of Petitioner's belt, as well as a loaded gun in his front waistband and four more daggers in another sheath on his left side. (Id., at ECF 79-80; see also id., at ECF 164-65 (Sivori testifying that the “daggers” recovered from Petitioner had “double-sided blades,” and that the gun recovered from Petitioner's waistband was a “.22 caliber semi-automatic firearm” that was loaded with “9 rounds in a magazine that was inserted into the weapon”).) According to Sivori's testimony, Thompson also recovered another magazine from Petitioner's pants. (Id., at ECF 165-66.) In addition, the police recovered a silencer and a laptop from Petitioner's backpack. (Id., at ECF 81, 165.)
After the weapons were recovered from Petitioner, he was placed under arrest, and other police officers, who had responded to the scene, transported him to the Ninth Precinct. (See id., at ECF 86, 231-36.) Subsequent to Petitioner's arrest, the police executed a search warrant for a storage-facility unit associated with Petitioner and recovered additional weapons and weapon accessories from that location. (See generally id., at ECF 167-208; see also Background, infra, at Section B(1)(a) (summarizing evidence addressed at suppression hearing).)
B. Procedural History
1. Proceedings Before The Trial Court
a. Suppression Hearing
A Huntley/Mapp hearing was conducted on March 12-13, 2012 by the Honorable Lewis Bart Stone, J.S.C. (See Pretrial Tr.) Officers Thompson and Sivori testified at the hearing, and gave the following account of what occurred following Petitioner's arrest and transport to the police station:
This hearing was held pursuant to: (1) Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether physical evidence sought to be used against Petitioner was obtained illegally, and (2) People v. Huntley, 15 N.Y.2d 72 (1965), to determine whether any statements made by Petitioner should be suppressed.
At approximately 5:00 a.m. on March 16, 2010, at the Ninth Precinct, Thompson issued Miranda warnings to Petitioner, both verbally and in writing. (Pretrial Tr., at 85-86.) Petitioner indicated that he did not want to give a statement, but he also did not ask for an attorney at that time. (Id., at 86; see also SR 66.)
Apart from the submitted transcripts, the State Court Record in this case has been submitted at Dkts. 20 and 20-1, and bears consecutively stamped page numbers, marked in the form “SR.” The Court will refer to those page numbers when citing to materials contained in this portion of the record.
At approximately 10:30 a.m., Detective Brian Stamm (“Stamm”), of the Intelligence Division, arrived at the precinct to conduct a “threat assessment” of Petitioner regarding “documentation recovered from [his] backpack that was negative toward [] the mayor.” (Pretrial Tr., at 17, 123-25 (Stamm testifying, “I questioned him concerning his arrest in order to make an assessment on whether he was dangerous to the mayor”).) Before questioning Petitioner, Stamm did not re-issue Miranda warnings, and, this time, Petitioner proceeded to make “a lot of statements . . . regarding his past, his history, and what brought him to New York.” (Id., at 125.) Petitioner also told Stamm that he had additional weapons in a storage facility, and signed a form giving his consent to search the facility. (Id., at 126.)
At approximately 3:00 p.m., police officers, once again, issued Miranda warnings to Petitioner, and Petitioner then gave both a verbal and a written statement. (Id., at 129-30; see also SR 67-69.) Petitioner again told the officers that he had additional weapons in a storage facility. (Pretrial Tr., at 88.)
At approximately 11:57 p.m., Petitioner was transported to the District Attorney's Office for another interview. (Id., at 21.) Miranda warnings were administered there, and Petitioner made a statement on video. (Id., at 23-26, 72-73.)
On March 17, 2010, Police officers searched Petitioner's storage unit and recovered a black Glock .9 mm pistol, a black Glock magazine, 320 cartridges, two silencers, three roles of negative film and a film canister, a laser bore sighter, three daggers, a stun gun, various keys and an electronic key card, suitcases and gun cases, three identification cards, 17 miscellaneous membership cards, a hard drive, a passport, checkbooks, and seven airline tickets. (Id., at 94-95.)
The court held that the weapons recovered from Petitioner and the storage unit were seized lawfully and, accordingly, could be introduced into evidence. (Id., at 183-94.) As for Petitioner's various statements, the court ruled that Petitioner's statement to Stamm, made at approximately 10:30 a.m. on March 16, 2010, would be suppressed due to Stamm's failure to re-issue Miranda warnings before questioning, but that all other statements made by Petitioner while in police custody were admissible. (See id.)
b. Trial And Sentencing
Petitioner's trial began on April 17, 2012. (See Trial Tr., at Dkt. 19, ECF 203.) After the case had been submitted to the jury, but before the jury's deliberations were completed, the prosecution informed the court that two jurors had been discussing the case in the elevator, and the defense moved for a mistrial. (See id., at Dkt. 19-2, ECF 137-50.) The court determined “that the exchange, while unfortunate and probably ill advised, did not constitute deliberations,” and denied the motion for a mistrial. (Id., at ECF 150.)
The jury reached a verdict on April 24, 2012 (id., at ECF 136-60), finding Petitioner guilty of three counts of criminal possession of a weapon in the second degree, three counts of criminal possession of a weapon in the third degree, and eight counts of criminal possession of a weapon in the fourth degree (id., at ECF 153-60).
On December 14, 2012, Justice Stone sentenced Petitioner to an aggregate term of 15 years of imprisonment, to be followed by five years of post-release supervision. (Sentencing Tr., at 17.) An error in Petitioner's sentencing with respect to certain counts (on which he was sentenced to determinate terms of imprisonment, but was entitled, under the law, to indeterminate terms) resulted in his being re-sentenced on May 1, 2013, by the Honorable Jill Konviser, J.S.C. (see Re-Sentencing Tr.), but, as the sentences on all counts were set to run concurrently, and as Petitioner's sentence on the top count remained a determinate sentence of 15 years' incarceration, the re-sentencing did not affect his aggregate prison term (see id.).
After the jury rendered its verdict, Justice Stone set May 24, 2012 as the date for sentencing (Trial Tr., at Dkt. 19-2, ECF 163), but, according to the record, Petitioner was not sentenced until December 14, 2012 (Sentencing Tr.).
2. Direct Appeal
On January 14, 2013, Petitioner filed a notice of appeal to the Appellate Division, First Department (SR 4), but, as noted above, he was re-sentenced on May 1, 2013, and he did not file his appellate brief until January 27, 2014 (see Brief for Defendant-Appellant, dated Jan. 27, 2014 (Dkt. 20), at ¶ 102-40). On appeal, Petitioner challenged his conviction on the grounds that: (1) the search of his person was unlawful; (2) the trial court erroneously denied his motion for a mistrial on the basis of improper jury deliberations; and (3) his sentence was excessive. (See generally id.) The Appellate Division affirmed the judgment of conviction on November 18, 2014, see People v. O'Donnell, 122 A.D.3d 475 (1st Dep't 2014) (also available at ¶ 234-37), and the Court of Appeals denied leave to appeal on January 20, 2015 (SR 249).
3. C.P.L. § 440.10 Motion
On November 21, 2015, Petitioner filed a pro se motion to vacate his conviction pursuant to Section 440.10 of the New York Criminal Procedure Law. (SR 250-94.) In that motion, Petitioner claimed that his trial counsel had provided ineffective assistance by generally being unprepared for trial and not diligently representing Petitioner's interests. (See id.) The trial court denied the motion on February 22, 2017. (SR 322-26, repeated at ¶ 388-92.) Petitioner filed a motion for leave to appeal to the Appellate Division, First Department, on April 27, 2017. (SR 329-87.) The Appellate Division denied leave to appeal by a decision that was dated October 6, 2017, and was entered on October 19, 2017. (SR 397.)
4. Federal Habeas Petition
Petitioner, proceeding pro se, commenced this habeas action by filing his Petition on July 5, 2018. (See Pet.) Respondent filed an opposition on January 4, 2019 (see Answer, dated Jan. 4, 2019 (Dkt. 18); see also Resp. Mem.), and Petitioner filed his reply on February 13, 2019 (see The Petitioner's Reply to the Respondent's Answer to the Petition For Writ of Habeas Corpus, dated Feb. 13, 2019 (“Pet. Reply Mem.”) (Dkt. 25)).
Under the so-called “prison mailbox rule,” see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), cert. denied, 534 U.S. 886, a pro se prisoner's habeas petition is deemed “filed” on the date he gives it to prison officials for delivery to the court, see id.; Houston v. Lack, 487 U.S. 266, 270 (1988). Here, Petitioner has declared under penalty of perjury that he placed his Petition in the prison mailing system on July 5, 2018 (see Pet., at 12), and this Court will therefore deem that to be the date of filing.
DISCUSSION
I. THE PETITION WAS NOT TIMELY FILED.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas petition must be filed within one year of the latest of four dates specified by statute, usually -and as applicable here - “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); see also Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (judgment becomes “final” for purposes of Section 2244 upon “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 expiration of] the time to seek direct review via certiorari”). The limitations period is tolled during the pendency of any “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2).
The limitations period may alternatively begin to run on the following dates: (1) where the petitioner was prevented from filing an application by state action, the date on which the impediment is removed; (2) where the right asserted is a newly recognized one made retroactively applicable, the date on which the constitutional right asserted was initially recognized by the Supreme Court; and (3) the date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D).
In this case, it appears from the State Court Record that the judgment of conviction against Petitioner became final on April 20, 2015, 90 days after the Court of Appeals denied Petitioner's application for leave to appeal from the Appellate Court's affirmance of his conviction, on direct appeal. (See SR 249.) The one-year AEDPA statute of limitations then ran for 215 days before it was tolled by Petitioner's filing of his Section 440.10 motion, on November 21, 2015. See 28 U.S.C. § 2244(d)(2). The statute remained tolled until October 6, 2017, when the Appellate Division denied Petitioner leave to appeal from the trial court's decision on that motion. At that point, with the conclusion of the proceedings on his
Although the record does not reflect the date on which the trial court received Petitioner's Section 440.10 motion, the motion is dated November 21, 2015, and Respondent appears to accept that this was the operative filing date. (See SR 293; Resp. Mem., at 11 (“Petitioner's motion to vacate the judgment was dated November 21, 2015.”).)
As noted above, the Appellate Division's decision denying leave is dated October 6, 2017 (see SR 397), but marked as “entered” on October 19, 2017 (see id.). Respondent argues that October 6, 2017 is the operative date for ending the tolling period because, “[a]t the moment Justice Richter signed the order denying leave to appeal, ‘the door of the New York Court of Appeals was closed and further appellate review was unavailable.'” (Resp. Mem., at 12 n.3 (citing Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000).) As Respondent correctly notes, however, “even if Petitioner were entitled to tolling until the entry of Justice Richter's order on October 19, 2017,” the difference of only 13 days would not be sufficient to render the Petition timely. (Id.)
Section 440.10 motion, Petitioner had 150 days remaining in which he could timely file a federal habeas petition (i.e., 365 days, less the 215 days that had already been counted towards the one-year period). He did not file his Petition, however, until July 5, 2018 (see supra, at n.6), 272 days later. In other words, Petitioner did not commence this action until 122 days - or approximately four months - after the expiration of the limitations period.
Despite the above, Petitioner argues that his Petition was, in fact, timely filed because, he contends, he filed a petition for a writ of certiorari (a “cert. petition”) with the United States Supreme Court within 60 days of his receipt of the decision of the New York State Court of Appeals, affirming his conviction, and his cert. petition remains pending. (Pet., at 2; Pet. Reply Mem., at 20.) Petitioner states that he assumes that the facility where he was incarcerated mailed out his cert. petition, as he “received no word from the facility in regards to legal mail postage problems.” (Pet. Reply Mem., at 20.) He also represents that he “has tried to contact the U.S. Supreme Court . . . by mail to ask about the status of his [w]rit but has received no reply ....” (Id.) Under these circumstances, according to Petitioner, the statute-of-limitations clock should be held to have “stopped.” (Id.) More accurately, his argument may be construed to suggest that the clock never actually started to run. See Williams, 237 F.3d at 150-51 (noting that the AEDPA statute of limitations does not begin to run until “the completion of certiorari proceedings in the United States Supreme Court”).
The problem with Petitioner's position is that, apart from his own conclusory statement, there is no evidence in the record that he ever actually filed a cert. petition. Certainly, Petitioner has not provided this Court with a copy of his cert. petition. Nor has he produced any evidence to confirm that he provided such a petition to prison officials for mailing. Moreover, in its January 2019 opposition to the Petition, Respondent represented that a “search of the [Supreme] Court's online docket [did] not reveal any cert petition filed by a person matching [P]etitioner's name, or any of several possible misspellings of his name, within the [prior] five years.” (Resp. Mem., at 12.) Respondent also represented that a “telephone call to the Supreme Court Clerk likewise revealed ‘no evidence' that [P]etitioner filed a petition with that court.” (Id.) More recently, at this Court's request, Respondent's counsel again confirmed that no such petition could be located, stating that counsel had proceeded to contact the Supreme Court Clerk's office for a second time, and had still been “unable to locate any evidence that” Petitioner filed a cert. petition. (Letter to the Court from James Gibbons, Esq., dated Nov. 1, 2021 (Dkt. 32).) This Court has also conducted its own independent search using LEXIS and Westlaw and has located no record of any petition for a writ of certiorari filed by Petitioner.
In the absence of any evidence to support Petitioner's bald contention that he filed a cert. petition, the Court should find that the statute of limitations began to run, in this case, when the period in which Petitioner could petition for a writ of certiorari ended, i.e., on April 20, 2015. See Rabbani v. United States, 156 F.Supp.3d 396, 402-03 (W.D.N.Y. 2016) (holding that the limitations period began to run 90 days after the petitioner's conviction became “final,” notwithstanding the petitioner's contention that he had filed for a writ of certiorari with the Supreme Court, where there was no record that any such petition was ever filed). The Court should further find that Petitioner's habeas Petition was not filed until months after the applicable limitations period expired.
II. PETITIONER HAS NOT DEMONSTRATED ENTITLEMENT
TO EQUITABLE TOLLING OF THE STATUTE OF LIMITATIONS.
A petitioner may be able to overcome a statute-of-limitations bar to review of his habeas claims if he can demonstrate entitlement to equitable tolling of the statute. See McQuiggin v. Perkins, 569 U.S. 383, 391 (2013). Equitable tolling is only available in the habeas context, however, upon a showing “(1) that [the petitioner] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. (quoting Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted)). The petitioner has the burden to establish that he is entitled to equitable tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Rabbani, 156 F.Supp.3d at 404.
“As a general matter, [courts] set a high bar to deem circumstances sufficiently ‘extraordinary' to warrant equitable tolling.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011) (citing Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)).
Instances which justify equitable tolling include a corrections officer's intentional confiscation of a prisoner's petition shortly before the filing deadline, see Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000), a state appellate court's failure to inform a prisoner that his leave to appeal was denied, see Diaz, 515 F.3d at 154-55, and . . . an attorney's failure to file a habeas petition on behalf of a prisoner, despite explicit directions from the prisoner to do so, see Baldayaque v. United States, 338 F.3d 145, 150-53 (2d Cir. 2003). Id.
Here, Petitioner does not explicitly make an equitable-tolling argument, but, in light of the Court's obligation to construe a pro se petition liberally, see, e.g., Martinez v. Huffard, No. 13cv1854 (JPO) (SN), 2014 WL 8663306, at *3 (S.D.N.Y. Feb. 4, 2014), report and recommendation adopted, 2015 WL 1821642 (Apr. 21, 2015), this Court will construe his submissions to contain such an argument. In particular, the Petition may reasonably be construed to advance three arguments in support of equitable tolling: (1) that the January 2015 decision of the New York State Court of Appeals denying Petitioner leave to appeal from the Appellate Division's affirmance of his conviction took a week to reach him; (2) that Petitioner did not receive “the decision from New York [] Court of Appeals: [First] Department” (presumably referring to the decision of the Appellate Division denying leave to appeal from the trial court's decision on Petitioner's Section 440.10 motion) “until early February 2018, after [Petitioner] wrote [to] said New York court to learn the status of his case”; and (3) Petitioner's Section 440.10 motion was filed “on such a late date” because the copy machine at the correctional facility had been broken for two months. (Pet., at 20-21.) None of these arguments are sufficient to justify equitable tolling.
First, courts have found that delays that occur “during the course of the ordinary mailing of [a] decision” do not constitute extraordinary circumstances, sufficient to warrant equitable tolling. See, e.g., Simmons v. Brown, No. 08-CV-01425 (JFB), 2011 WL 2133844, at *9 (E.D.N.Y. May 26, 2011). In Simmons, the court held that an eight-day delay “does not constitute an extraordinary circumstance ....” Id. Similarly, the one-week mail delay alleged by Petitioner here, with respect to his receipt of the decision of the Court of Appeals, denying leave to appeal, should be held insufficient to warrant equitable tolling of the statute of limitations. In any event, a one-week tolling period would not render Petitioner's habeas Petition timely.
Second, as to Petitioner's argument that it took six months for him to receive the decision of the Appellate Division denying leave to appeal from the denial of his Section 440.10 motion, “an uncorroborated assertion by a petitioner that he did not receive [a] final state decision in the prison mail is not a sufficient basis to invoke the doctrine of equitable tolling.” Simmons, 2011 WL 2133844, at *9; see also, e.g., Thrower v. Laird, No. 06cv4864 (JSR) (AJP), 2006 WL 3735649, at *2 (S.D.N.Y. Dec. 14, 2006) (collecting cases). Petitioner's assertion here, that he did not receive a copy of the Appellate Division's decision for months, is entirely “uncorroborated,” as he has offered no evidence to show that the decision was, in fact, delayed in reaching him. Moreover, even if Petitioner did not learn of the outcome of his Section 440.10 motion until February 2018, he cannot show that he then exercised diligence in filing his habeas Petition, as he did not proceed to file it for another five months. Accordingly, this argument should also be rejected.
Third, with regard to Petitioner's argument that the copy machine at his correctional facility was broken for two months, courts have held that “the typical difficulties attendant to prison life, such as an out-of-service copy machine in the prison law library . . . do not rise to the level of extraordinary circumstances justifying the application of equitable tolling.” Criss v. Superintendent, Elmira Corr. Facility, No. 9:19-CV-1513 (MAD) (DJS), 2020 WL 7053563, at *4 (N.D.N.Y. Dec. 2, 2020); White v. Conway, No. 9:07-CV-1175 (FJS) (GHL), 2011 WL 1315592, at *5 (N.D.N.Y. Mar. 31, 2011); Amante v. Walker, 268 F.Supp.2d 154, 158 (E.D.N.Y. 2003). Further, the lack of an available copy machine in the months prior to Petitioner's filing of his Section 440.10 motion cannot, in any event, serve to excuse his lack of diligence once that motion was decided.
Overall, Petitioner has not met his burden of demonstrating that he is entitled to equitable tolling of the statute of limitations.
III. PETITIONER HAS ALSO FAILED TO DEMONSTRATE THAT, IN THIS CASE, THE COURT SHOULD MAKE AN EQUITABLE EXCEPTION TO THE STATUTORY TIME BAR.
Finally, this Court notes that the Supreme Court has held that, in limited circumstances, a petitioner may be entitled to be relieved of the requirement that he file his habeas claims within the statutory limitations period - in other words, that there may be circumstances that allow for an “equitable exception” to the statute of limitations, rather than “equitable tolling.” Perkins, 569 U.S. at 391. Specifically, in Perkins, the Court held that “a credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . notwithstanding the existence of a procedural bar to relief.” Id. at 392.
“This rule, or fundamental miscarriage of justice exception, is grounded in the equitable discretion of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Id. (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993) (internal quotation marks omitted)). Yet, while a showing of actual innocence may allow a habeas court to review a time-barred claim, “[t]he gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” Id. at 401 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). To support an allegation of a “fundamental miscarriage of justice,” the petitioner must present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324.
In this case, Petitioner has not come forward with any evidence of actual innocence, much less evidence that could be found sufficient to meet the stringent standard that would allow the Court to review of his time-barred claims. For this reason, and for the reasons discussed above, I recommend that the Court find that Petitioner's habeas claims are time-barred from review and that the Petition should accordingly be dismissed.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Petitioner's Petition for a Writ of Habeas Corpus (Dkt. 1) be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) because Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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 from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Edgardo Ramos, United States Courthouse, 40 Foley Square, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Ramos. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
If Petitioner does not have access to cases cited herein that are reported only on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of [cases and other authorities that are unpublished or reported exclusively on computerized databases that are] cited in a decision of the Court and were not previously cited by any party”).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to Petitioner, at the address reflected on the Docket and shown below.