JUDITH C. McCARTHY, Magistrate Judge.
To the Honorable Vincent L. Briccetti, United States District Judge:
Petitioner Santiago Alvarez ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 dated October 1, 2014 (the "Petition").
Petitioner's convictions arise from an incident in which he assaulted his girlfriend, Benida Morales ("Ms. Morales"). Construing the evidence in the light most favorable to the State, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
On the evening of June 9, 2009, Ms. Morales arrived at the home of her neighbor, Roseann Campos ("Ms. Campos"), located along East Main Street in Middletown, New York. (Tr. at
Petitioner gained access to the residence and, as he entered the living area, started to punch Ms. Morales in the face with a closed fist as he yelled, "you like calling me them names." (Tr. at 232-235). He then kicked Ms. Morales several times, which caused her to fall to the floor. (Id.). Petitioner continued to punch Ms. Morales in the face and head. (Id. at 235). When Ms. Morales was finally able to get up from the floor, Petitioner pushed her down onto the couch and continued hitting her. (Id. at 235-236). Ms. Morales remained silent, but attempted to defend herself by hitting Petitioner and covering her face with her hands. (Id. at 236). Finally, Ms. Campos' brother told Petitioner that the police were on their way and, though Petitioner responded that he did not care, Petitioner quickly left the residence. (Id. at 236-237). Ms. Morales left shortly thereafter, not telling Ms. Campos where she was going. (Id. at 237).
Police Officer George Valentin ("Officer Valentin") and Sergeant Booth of the City of Middletown Police Department (jointly "the Officers") arrived at the scene. (Tr. at 210). Ms. Campos and her mother immediately told the Officers that Petitioner had forced his way into the residence to assault Ms. Morales. (Id. at 210-211). They further informed the Officers that Petitioner fled and that they observed Ms. Morales leave in the direction toward her apartment on Railroad Avenue. (Id.). In response, the Officers went to Ms. Morales' residence and, when they arrived, Ms. Morales answered the door and appeared "upset, disheveled [and] angry." (Id. at 214). She informed the Officers that her boyfriend, Petitioner, assaulted her and described him as a dark-skinned male weighing approximately 150 pounds. (Id. at 213).
The Officers then asked Ms. Morales to come to the station to make a formal statement. (Tr. at 213-214). While Ms. Morales arranged for someone to watch her children, Officer Valentin left the apartment to return to Ms. Campos' residence. (Id. at 214). As he exited, Officer Valentin ran into Petitioner, who introduced himself as Santiago Alvarez. (Id. at 214-215). Officer Valentin took Petitioner into custody. (Id. at 215-216). As Officer Valentin walked back with Petitioner toward the patrol car, they passed Ms. Campos and her mother, who Officer Valentin heard say, "Oh, that's the man . . . he is the one that broke in." (Id. at 216). Officer Valentin subsequently learned about the damage to Ms. Campos' residence, and asked her to come to the police station to make a statement as well. (Id. at 217-218).
At trial, Ms. Morales' testimony differed from that of other witnesses and from the initial statements she gave to the police. Ms. Morales testified that on June 9, 2009, she was with Petitioner, the father of her youngest son, at her apartment on Railroad Avenue. (Tr. at 291-292). Both had been drinking. (Id. at 295). Sometime that evening, Petitioner turned on music and Ms. Morales asked him to turn it down because her baby was sleeping. (Id. at 292-293). Petitioner did not respond, and the two subsequently began cursing at each other. (Id. at 293). The argument then escalated into a shoving match, which culminated in Petitioner on top of Ms. Morales and holding her down on the kitchen floor. (Id. at 293-294). Seeing Petitioner restrain his mother, Ms. Morales' six-year-old son said, "Get off, Mommy," and hit Petitioner in the back of the head with a golf club. (Id. at 294). Petitioner removed the cord from the house telephone, so Ms. Morales left to Ms. Campos' residence to make a call. (Id. at 295-296). While at Ms. Campos' home, Ms. Morales testified that she saw Petitioner walking on the street and cursed at him in Spanish. (Id. at 296-297). Petitioner then headed toward Ms. Campos' home, and Ms. Campos told Ms. Morales to "get inside." (Id. at 297). Petitioner gained access to the residence, and Ms. Morales recalls Petitioner kicking and yelling at her, and the two ending up on the floor. (Id. at 298-299).
By Orange County Indictment Number 2009-389, Petitioner was charged with: (i) burglary in the second degree; (ii) criminal contempt in the first degree; and (iii) criminal mischief in the fourth degree. (Docket No. 13-1 at 2-3).
On December 8, 2009, Petitioner's trial commenced before the Honorable Jeffrey G. Berry. The jury returned a verdict on December 14, 2009, convicting Petitioner on all three counts. (Tr. at 422-426).
On January 11, 2010, the court sentenced Petitioner as a second felony offender to: (i) a determinate term of imprisonment of ten years and a five-year period of post-release supervision upon Petitioner's burglary conviction; (ii) an indeterminate term of imprisonment of two to four years upon the conviction for criminal contempt in the first degree; and (iii) a one-year sentence on the remaining charge of criminal mischief. (Docket No. 13-9). The court further ordered all of the sentences to run concurrently. (Id. at 10).
Petitioner filed a timely notice of appeal from his judgment. On direct appeal, Petitioner limited his appeal to the claim that his sentence was excessive, and asked that it be reduced in the interest of justice. (Docket No. 13-1 at 65-80). On July 12, 2011, the New York State Supreme Court, Appellate Division (the "Appellate Division") affirmed Petitioner's conviction. (Docket No. 13-2 at 9). In March 2012, Petitioner moved pro se for an extension of time in which to seek leave to appeal to the New York State Court of Appeals (the "Court of Appeals"), (Id. at 25), which was granted on May 31, 2012, (Id. at 28). On July 2, 2012, the Court of Appeals denied Petitioner's application for leave to appeal from the Appellate Division decision. (Id. at 32-33).
On January 13, 2014, Petitioner commenced a coram nobis proceeding in the Appellate Division wherein he claimed that he was denied effective assistance of appellate counsel. (Docket No. 13-2 at 33-45, 54-55). The People opposed the application. (Id. at 46-52). On July 3, 2014, the Appellate Division denied the application. (Id. at 58-59). Notice of entry of the Appellate Division's order was served on Petitioner on July 9, 2014. (Id. at 60).
Petitioner filed a petition for writ of habeas corpus dated October 1, 2014, raising two grounds for relief. (Docket No. 1). Petitioner first claims that he was denied due process and a fair trial based on his trial counsel's failure to: (i) object to alleged prosecutorial misconduct; (ii) question Ms. Campos' mother on her criminal history; and (iii) call Ms. Morales as a defense witness. (Id. at 3, 5). His second claim is that he was denied effective assistance of appellate counsel on his direct appeal. (Id. at 6). Respondent filed an opposition to the Petition (the "Opposition") by papers dated May 1, 2015. (Docket No. 13).
By order dated December 2, 2014, Judge Loretta A. Preska directed Petitioner to file an affirmation showing cause why the Petition should not be denied as time-barred. (Docket No. 4). On January 6, 2015, Petitioner filed an affirmation in which he argued that the statute of limitations should be equitably tolled because his appellate attorney and the Appellate Division misinformed him regarding how to obtain his trial transcript. (Docket No. 6 at 1-4).
Respondent argues, inter alia, that the Petition should be dismissed because it is time-barred. (Docket No. 13 at 14-16). Upon a review of the record, the Court agrees that Petitioner did not timely file his Petition, and provides no compelling reasons for why the one-year statutory requirement should be tolled. Accordingly, the Court respectfully recommends that the Petition be dismissed as time-barred.
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). "Before a federal district court may review the merits of a state court 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." Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013).
28 U.S.C. § 2244(d).
Petitioner does not argue that the State prevented him from filing his Petition. Nor does he contend that he seeks relief on the basis of a newly-recognized constitutional right, or that the factual bases of his claims were unknown to him prior to filing his Petition. Therefore, the appropriate triggering date here is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." § 2244(d)(1)(A).
"[A] petitioner's conviction becomes final for AEDPA purposes when his time to seek direct review in the United States Supreme Court by writ of certiorari expires." Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) (internal quotation marks and brackets omitted). A party has ninety days in which to file a petition for a writ of certiorari requesting review of a state court decision. Sup. Ct. R. 13(1); Bowles v. Russell, 551 U.S. 205, 212 (2007); Saunders v. Senkowski, 587 F.3d 543, 547-548 (2d Cir. 2009); Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000). Here, because Petitioner's application for leave to appeal to the Court of Appeals was denied on July 2, 2012, and because Petitioner did not file a petition for a writ of certiorari, the AEDPA limitations period began to run on October 1, 2012.
The AEDPA contains a tolling provision providing that "[t]he time during which a properly filed application for state post-conviction or collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). If the state collateral proceedings are themselves commenced after the one-year statute of limitations has already expired, however, they have no effect because they do "not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
A coram nobis petition is deemed filed on the date it is delivered to prison authorities for mailing. Fernandez v. Artuz, 402 F.3d 111, 113 (2d Cir. 2005). In this case, Petitioner placed his application for a writ of error coram nobis in a prison mailbox on January 13, 2014. (Docket No. 13-2 at 33-45, 54-55). Though such application would normally toll a limitations period, Petitioner filed his coram nobis application approximately three months after the expiration of the October 1, 2013 AEDPA limitations period. This filing, therefore, does "not reset the date from which the one-year statute of limitations begins to run." Smith, 208 F.3d at 17.
Since both this application and all of Petitioner's other submissions were filed with this Court well after the limitations period had expired, Petitioner is not entitled to further statutory tolling on the basis of these motions. See, e.g., Fernandez, 402 F.3d at 116 ("To toll the AEDPA statute of limitations, the state petition [for a writ of coram nobis] must be . . . `pending' during the tolling period."). Accordingly, Petitioner's habeas proceeding is untimely unless he can establish another basis for overcoming the AEDPA statute of limitations.
In Holland v. Florida, the Supreme Court confirmed the unanimous view of the Second Circuit and other circuit courts that the AEDPA limitations period "is subject to equitable tolling in appropriate cases." 130 S.Ct. 2549, 2560 (2010). Equitable tolling permits a court to entertain an otherwise untimely habeas petition if the petitioner establishes: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (internal quotation marks omitted). "The term `extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). Therefore, there is "a high bar to deem circumstances sufficiently `extraordinary' to warrant equitable tolling." Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011).
Courts have found "extraordinary circumstances" in only a small number of situations. See, e.g., id. at 363-364 (attorney affirmatively misled petitioner by promising that he would file the petition before the "last day to file"); Diaz v. Kelly, 515 F.3d 149, 154-155 (2d Cir. 2008) (state appellate court failed to inform prisoner that leave to appeal was denied); Baldayaque v. United States, 338 F.3d 145, 150-153 (2d Cir. 2003) (attorney failed to file habeas petition, despite explicit directions to do so); Valverde, 224 F.3d at 133 (corrections officer intentionally confiscated prisoner's petition shortly before the filing deadline); see also Holland, 130 S.Ct. at 2564-2565 (suggesting that "extraordinary circumstances" may be present when attorney, inter alia, failed to file a timely habeas petition despite petitioner's many letters instructing him to do so, did not inform petitioner that the state's highest court had decided his case, and ignored petitioner's letters for a period of years).
Here, Petitioner does not allege facts that meet the high bar for equitable tolling. Petitioner argues that the Petition should be equitably tolled because he was misinformed about how to obtain his trial transcript. (Docket No. 6 at 3). However, "lack of access to a trial transcript does not prevent a petitioner from filing a writ of habeas corpus." Trovato v. Kaplan, No. 11 Civ. 6092 (VB)(GAY), 2012 WL 7060608, at *4 (S.D.N.Y. Dec. 19, 2012), report and recommendation adopted, 2013 WL 636956 (S.D.N.Y. Feb. 11, 2013); see also Crawford v. Costello, 27 Fed. App'x. 57, 59 (2d Cir. 2001) ("Because there is no constitutional right to a trial transcript for collateral appeals, the state's denial of [petitioner's] request for a transcript did not constitute an unconstitutional impediment sufficient to toll the statute of limitations. . . . Nor did [petitioner's] lack of transcript prevent him from filing a habeas petition."); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) ("[L]ack of access to a trial transcript does not preclude a petitioner from commencing post-conviction proceedings and therefore does not warrant equitable tolling."). The Court acknowledges that Petitioner was initially diligent in attempting to obtain the trial transcripts, especially in light of his appellate counsel's delay. (See Docket No. 6 at 6-12). However, the Orange County Clerk's Office, the custodian of the trial transcripts, informed Petitioner on October 10, 2012 that "a friend or relative [could] come in and copy the transcripts" on Petitioner's behalf. (Docket No. 6 at 20). This afforded Petitioner nearly one year to obtain the transcripts prior to the expiration of the AEDPA limitations period on October 1, 2013. Petitioner offers no explanation as to why he failed to obtain the transcripts during that time, and provides no evidence of continued diligence throughout that near one-year period.See, e.g., Padilla v. United States, No. 02 Civ. 1142 (CSH), 2002 WL 31571733, at *4 (S.D.N.Y. Nov. 19, 2002) (lack of access to court papers and a delay in obtaining them "are not extraordinary circumstances warranting equitable tolling"). Furthermore, Petitioner points to no other impediments that prevented him from obtaining the transcripts and timely filing his Petition.
Accordingly, I respectfully recommend that Your Honor conclude that there is no basis to toll the statute of limitations on equitable grounds.
To make a colorable claim of actual innocence, a petitioner must establish that it is "more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The petitioner must also present "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." House v. Bell, 547 U.S. 518, 537 (2006); Doe v. Menefee, 391 F.3d 147, 161-162 (2d Cir. 2013).
Here, at minimum, Petitioner has failed to tender any "new reliable evidence" demonstrating his innocence. In light of this failure, the Court has no reason to question the jury's verdict, and Petitioner cannot rely on any potential "actual innocence" exception to the AEDPA as a basis for overcoming the one-year statute of limitations.
For the foregoing reasons, I conclude and respectfully recommend that the Petition be dismissed as time-barred. 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, 483-484 (2000).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti and at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Vincent L. Briccetti and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).
RAMOS, District Judge.
On August 29, 2012, Judge Davison issued a Report and Recommendation (the "Report"), recommending that the Petition be denied in full. Doc. 24. Objections, if any, were due by September 17, 2012.
The factual background and procedural history relevant to the Petition are set forth in Judge Davison's Report, familiarity with which is assumed. See Report 2-10.
Petitioner was convicted, on November 13, 2003, after a jury trial in the Supreme Court of the State of New York, Rockland County, of two counts of murder in the first degree, two counts of murder in the second degree, and one count of robbery in the first degree, in relation to the murder of his wife, Evelyn Visich. Petition ("Pet.") 1-2. He was sentenced to concurrent terms of life without the possibility of parole for each of the first-degree murder convictions, twenty-five years to life for each of the second-degree murder convictions, and twenty-five years for the robbery conviction. Id. at 2.
On May 20, 2010, Petitioner timely filed the instant Petition, claiming: (1) the state court's refusal to strike the direct testimony of Eddie Cassatt and Frank Thon violated Petitioner's Sixth Amendment right to confront witnesses against him because the witnesses' invocation of the Fifth Amendment privilege against self-incrimination denied Petitioner his right to reasonable cross-examination, Pet. 68; Mem. Law Supp. Pet. ("Pet'r's Mem."), 1-10, Doc. 2; (2) the prosecution failed to provide the defense with "critical information" indicating that Petitioner sought to have his wife assaulted, but not murdered, and the state court's refusal to vacate his conviction on the basis of the alleged Brady violation was contrary to, or involved an unreasonable application of, the Supreme Court's decisions in Brady v. Maryland, 337 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985), Pet. 68; Pet'r's Mem. 11-25, Doc. 2; and (3) the state court's refusal to suppress evidence seized from Petitioner's vehicle pursuant to his purported consent to search violated Miranda v. Arizona, 384 U.S. 436 (1966), because Petitioner's consent was the result of a custodial interrogation, and any such consent was subsequently revoked by the appearance of counsel on his behalf. Pet. 69; Pet'r's Mem. 26-36.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, habeas petitions under 28 U.S.C. § 2254 may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (d)(2). This deference is required under the AEDPA if, as here, the petitioner's claim "was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149, 154-155 (2d Cir.2007).
"Th[e] statutory phrase [`clearly established Federal law as established by the Supreme Court of the United States,"] refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). In order for a federal court to find that the state court's application of Supreme Court precedent was unreasonable, the decision must be objectively unreasonable rather than simply incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The factual findings made by state courts are presumed to be correct under the second prong of the AEDPA, and petitioner has the burden to rebut this presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir.1997).
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Parties may raise "specific," "written" objections to the report and recommendation "[w]ithin fourteen days after being served with a copy." Id.; see also Fed.R.Civ.P. 72(b) (2). A district court reviews de novo those portions of the report and recommendation to which timely and specific objections are made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). The district court may adopt those parts of the report and recommendation to which no party has timely objected, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y.2008). The clearly erroneous standard also applies where a party's objections are conclusory, general or "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition." Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008) (citations and internal quotation marks omitted). "Objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate judge's proposal." Indy Mac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865(LTS) (GWG), 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008) (citing Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992)).
Plaintiff also asserts four specific objections to the Report, which are essentially disagreements with Judge Davison's summary of the facts relevant to Petitioner's first and third claims. Objections 8-18. Petitioner did not raise any objections to the portions of Judge Davison's Report addressing his Brady claim, and, after carefully reviewing that portion of the Report, the Court finds no error, clear or otherwise. Accordingly, the Court adopts Judge Davison's recommendation to dismiss Petitioner's Brady claim for the reasons stated in the Report. See Report 24-27.
In support of his first specific objection, Petitioner argues that Judge Davison failed to address the "overwhelming evidence that Cassatt lied and the People knew it," and that Judge Davison's findings are not based on the entire record because he "ignor[ed] this perjury." Objections 11. Petitioner's first objection merely reiterates facts and arguments that were presented to, and considered by, Judge Davison, see, e.g., Pet'r's Mem. 4, 6, and therefore this objection does not warrant de novo review of the Report. Kirk v. Burge, 646 F.Supp.2d 534, 538 (S.D.N.Y.2009) (citations omitted). Moreover, contrary to Petitioner's assertions, the facts he alleges Judge Davison "ignored" were explicitly referenced in the Report. See Report 7, 18. The Court has carefully reviewed Judge Davison's Report relating to Petitioner's Confrontation Clause claim and finds no error, clear or otherwise. Accordingly, the Court adopts Judge Davison's recommendation that Petitioner's Confrontation Clause claim be dismissed for the reasons stated in the Report. Id. at 21-24.
The balance of Petitioner's specific objections relate to facts that he contends are vital to his Fourth Amendment claim, and which he asserts Judge Davison misconstrued or ignored. Objections 12-18. The facts set forth in Petitioner's Objections were all presented to Judge Davison, see, e.g., Pet. 9-31; Pet'r's Mem. 22, 26-36, and there is no indication that Judge Davison ignored any of Petitioner's arguments or assertions. Because Petitioner's second, third and fourth objections are "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the clearly erroneous standard applies. Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008) (citations and internal quotation marks omitted).
For the reasons set forth above, the Court adopts Judge Davison's Report in its entirety. Petitioner's petition for a writ of habeas corpus is DENIED. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. Love v. McCray, 413 F.3d 192, 195 (2d Cir.2005); 28 U.S.C. § 2253. The Clerk of the Court is respectfully directed to close this case.
It is SO ORDERED.
PAUL E. DAVISON, United States Magistrate Judge.
Petitioner Peter Visich, through his counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on November 13, 2003, after a trial by jury, of two counts of murder in the first degree, two counts of murder in the second degree, and one count of robbery in the first degree in Rockland County Court (Kelly, J.). He was sentenced to concurrent terms of (1) life without the possibility of parole for each of the first-degree murder convictions, (2) twenty-five years to life for each of the second-degree murder convictions, and (3) twenty-five years for the robbery conviction.
This Petition is before me pursuant to an Order of Reference dated May 24, 2010. See Dkt. No. 3. For the reasons set forth below, I respectfully recommend that the Petition be
On January 7, 2003, Evelyn Visich, Petitioner's estranged wife, was murdered in the Visich family home in Chestnut Ridge, New York by Frank Thon, who had been hired by Petitioner to kill his wife. In November 2002, Petitioner had been introduced to Thon over the telephone by a mutual acquaintance, Eddie Cassatt. Following their initial conversation, Petitioner and Thon spoke and met several times between November 2002 and January 2003 regarding arrangements for Mrs. Visich's murder.
On January 7, 2003, Petitioner and his young son left their home for the day to visit Petitioner's family and friends. Mrs. Visich also left the home some time that day. Early that evening, while no one was at home, Thon entered the house through a back door that Petitioner had left unlocked for him and waited for Mrs. Visich to return. After Mrs. Visich arrived home later that evening, Thon stabbed her several times and slashed her neck down to the bone, nearly decapitating her. Thon left the knife that he had used to commit the murder in Mrs. Visich's chest, removed some jewelry from her body, and then fled the scene. Petitioner returned home some time later with his son and "discovered" Mrs. Visich's body. Petitioner then ran to a neighbor's house to report what he had "found," and the neighbor called the police to report the crime.
Petitioner's van was searched over the course of several days. During this search, the police recovered, among other items, several pre-paid calling cards and a bank envelope containing $3700 in cash. Based on records for the calling cards that were recovered from Petitioner's van, the police were able to trace forty-seven telephone calls that Petitioner had made to Thon between November 2002 and January 2003.
The Rockland County Grand Jury returned an indictment charging Petitioner with two counts of murder in the first degree, in violation of New York Penal Law §§ 125.27(1) (a)(vi) and (b)
Before Petitioner's trial commenced, the court held an eight-day suppression hearing at which Petitioner challenged the admissibility of evidence that had been seized from his van. Petitioner argued that his consent was involuntary because it was the product of custodial interrogation and, alternatively, that his counsel's subsequent appearance on his behalf effectively revoked the consent that he had given earlier that day. Petitioner further argued that the items seized from the van exceeded the scope of the search warrant that the police had subsequently obtained. The trial court determined that Petitioner's consent was voluntary, that the search of his van exceeded neither the scope nor the duration contemplated by this consent, and that Petitioner had not revoked this consent. Alternatively, the trial court found that the search and seizure were within the scope of the warrant. Accordingly, the court denied Petitioner's motion to suppress the evidence that had been recovered from his van. See Ciganek Aff., Ex. S (October 21, 2003 Order).
Because the prosecution had indicated to Petitioner's trial counsel in advance that Thon and Cassatt likely would invoke the privilege if asked about these prior activities, trial counsel had asked the court to preclude these witnesses from testifying altogether on the ground that Petitioner's right to reasonable cross-examination would be violated by the witnesses' invocation of the privilege. Petitioner later renewed this request by moving to strike the direct testimony of each of the witnesses after they did in fact invoke the privilege on these issues during cross-examination. According to Petitioner, the witnesses' responses to questions about their prior relationship — specifically, their prior contractual arrangements pursuant to which Cassatt had hired Thon to assault people — would have established that Cassatt actually knew details about the arrangement between Petitioner and Thon and, therefore, was an accomplice as a matter of law whose testimony would be barred under New York law from corroborating Thon's testimony. Petitioner's trial counsel also argued that the witnesses' invocation of the privilege on this issue would prevent Petitioner from establishing that Thon had a history of assaulting — not murdering — people which would have supported Petitioner's alternative theory that Thon had been hired only to assault Mrs. Visich, not to kill her. Petitioner's counsel further claimed that, because both Cassatt and Thon testified about the nature of their prior relationship during direct examination, Petitioner's questions on cross-examination about their prior relationship were not collateral.
The trial court denied Petitioner's requests, finding that it was unnecessary to preclude or strike the direct testimony of these witnesses given that they would be invoking the privilege only in response to questions that related to collateral matters — specifically, their credibility — and that such responses would not otherwise be probative of any material facts at issue in the case. Instead, the trial court allowed Thon and Cassatt to testify and instructed the jury that they were permitted to consider the witnesses' invocation of the privilege against self-incrimination when determining credibility. See Dkt. No. 15 (Trial Tr.) at 1589-1602, 1652-53; Dkt. No. 16 (Trial Tr.) at 1863-75; Dkt. No. 17 (Trial Tr.) at 2344; Dkt. No. 17 (Trial Tr.) at 2491-92. The trial court ultimately instructed the jury that Thon was an accomplice as a matter of law and, therefore, his testimony had to be corroborated by other evidence. The court, however, determined that whether Cassatt was an accomplice was a question of fact and instructed the jury that they were to decide this issue and, if they determined that Cassatt was in fact an accomplice, then both Thon's and Cassatt's testimony would need to be corroborated by other independent evidence. See Dkt. No. 17 (Trial Tr.) at 2496-2503. In addition to the testimony of Thon and Cassatt, the evidence introduced by the prosecution at Petitioner's trial included the testimony of the police officers who had investigated the crime, as well as telephone records documenting forty-seven calls between Petitioner and Thon from November 2002 to January 2003.
Petitioner was sentenced on January 6, 2004 to concurrent terms of (1) life without the possibility of parole for each of the first-degree murder convictions, (2) twenty-five years to life for each of the second-degree murder convictions, and (3) twenty-five years for the robbery conviction.
Petitioner appealed his convictions to the New York State Appellate Division, Second Department, and raised the following claims:
On December 16, 2008, the Appellate Division affirmed Petitioner's conviction. See People v. Visich. 870 N.Y.S.2d 376 (App.Div.2008). The Appellate Division determined that because Petitioner "was able to cross-examine Thon and Cassatt concerning the crimes at bar, and to argue on summation the inferences to be drawn from their invocation of the privilege against self-incrimination," he "was able to explore each witness's bias and motivation to testify falsely through other evidence" and therefore "it cannot be said that [Petitioner's] ability to test the accuracy of direct testimony of Thon and Cassatt was impaired such as to create a substantial risk of prejudice, or that the corrective response fashioned by the trial court was an improvident exercise of its discretion." Id. at 379. The court also found that "the trial court did not err in denying . . . [Petitioner's] . . . motion . . . to suppress evidence found in his vehicle," given that "the record supports the hearing court's determination to credit the testimony of the police witnesses, which established that [Petitioner] voluntarily consented to the search," that "the duration of the search did not exceed the scope of the consent," and that "there is no evidence that the consent was withdrawn or otherwise terminated during the search." Id. Additionally, the Appellate Division determined that "the trial court properly instructed the jury that the issue of whether Cassatt was an accomplice was a question of fact" and that, "assuming arguendo that the jury found Cassatt to be an accomplice, the testimony of both Cassatt and Thon . . . was corroborated by independent evidence connecting [Petitioner] to the crimes." Id. Finally, the court found that Petitioner's "remaining contentions are without merit." Id.
On May 20, 2010, Petitioner filed this Petition seeking a writ of habeas corpus. See Pet.; Pet'r's Mem. Respondent does not dispute that the Petition was timely filed. See 28 U.S.C. § 2244(d) (setting forth limitation period for habeas petitions). Petitioner raises the following claims in his Petition for habeas review:
A federal habeas corpus petition is subject to 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 limitations 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:
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 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)). 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 marks 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." Id.
To exhaust a federal claim, the petitioner must have "fairly present[ed] his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim," and thus "giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted). "Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims." Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir.1984) (internal citation omitted) (citing Smith v. Phillips. 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner "apprise the highest state court of both the factual and legal premises of the federal claims ultimately asserted in the habeas petition." Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir.2005). A claim may be "fairly presented" to the state courts, therefore, even if the petitioner has not cited "chapter and verse of the Constitution," in one of several ways:
Dave v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir.1982). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, "[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997) (internal quotation marks omitted). "In such a case, a petitioner no longer has remedies available in the courts of the State within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991) (internal quotation marks omitted). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either "cause for the procedural default and prejudice attributable thereto," Harris v. Reed, 489 U.S. 255, 262 (1989), or "actual innocence," Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
Even where an exhausted and timely habeas claim is raised, comity and federalism demand that a federal court abstain from its review when the last-reasoned state court opinion to address the claim relied upon "an adequate and independent finding of a procedural default" to deny it. Harris, 489 U.S. at 262; see also Coleman v. Thompson, 501 U.S. 722, 730 (1991); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir.1995).
A state court decision will be "independent" when it "fairly appears" to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir.2006) (citing Coleman, 501 U.S. at 740). A decision will be "adequate" if it is ` "firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir.1999) (quoting Ford v. Georgia. 498 U.S. 411, 423-24 (1991)).
Before a federal court can determine whether a petitioner is entitled to federal habeas relief, the court must determine the proper standard of review under AEDPA for each of the petitioner's claims. 28 U.S.C. § 2254(d)(1)-(2). This statute "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners," and imposed a more exacting standard of review. Williams v. Taylor. 529 U.S. 362, 402 (2000). For petitions filed after AEDPA became effective, federal courts must apply the following standard to cases in which the state court adjudicated on the merits of the claim:
§ 2254(d)(1)-(2). The deferential AEDPA standard of review will be triggered when the state court has both adjudicated the federal claim "on the merits," and reduced its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001). Where the state court "did not reach the merits" of the federal claim, however, "federal habeas review is not subject to the deferential standard that applies under AEDPA . . . . Instead, the claim is reviewed de novo." Cone v. Bell, 556 U.S. 449, 472 (2009); see § 2254(d).
Under the second prong of AEDPA, the factual findings of state courts are presumed to be correct. 28 U.S.C. § 2254(e)(1); see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir.1997). The petitioner must rebut this presumption by "clear and convincing evidence." § 2254(e)(1).
Petitioner argues that the state courts' determination that Cassatt and Thon invoked the Fifth Amendment privilege against self-incrimination in response to questions that concerned only "collateral impeachment issues" was "incorrect" and that this decision "denied Petitioner his federally guaranteed Sixth Amendment confrontation rights and right to reasonable cross-examination."
As noted above, in ruling on this claim on direct appeal, the Appellate Division determined that, because Petitioner "was able to cross-examine Thon and Cassatt concerning the crimes at bar," "to argue on summation the inferences to be drawn from their invocation of the privilege against self-incrimination," and "to explore each witness's bias and motivation to testify falsely through other evidence," Petitioner's "ability to test the accuracy of direct testimony of Thon and Cassatt" was not "impaired such as to create a substantial risk of prejudice" and "the corrective response fashioned by the trial court" was not "an improvident exercise of its discretion." Visich, 870 N.Y.S.2d at 379. Respondent argues that the Appellate Division's decision was neither contrary to, nor constituted an unreasonable application of, clearly established federal law. See Resp't's Mem. at 3, 5-6, 9. Respondent does not dispute that Petitioner presented this claim to the state's highest court in his letter requesting leave to appeal. Because the state court adjudicated Claim 1 on the merits, the Court will assess the merits of this claim using the deferential AEDPA standard of review. See 28 U.S.C. § 2254(d)(1)-(2).
The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant "to be confronted with the witnesses against him." U.S. Const. amend. VI. This right of confrontation embodies the right of the defendant to "a meaningful opportunity to present a complete defense." Crane v. Kentucky. 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)) (internal quotation marks omitted). This right also "means more than being allowed to confront the witness physically." Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315 (1974)) (internal quotation marks omitted). Specifically, it "includes the right to conduct reasonable cross-examination." Olden v. Kentucky. 488 U.S. 227, 231 (1988) (citing Davis. 415 U.S. at 315-16). "Although the Sixth Amendment guarantees `an opportunity for effective cross-examination,' it does not guarantee `cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' "United States v. Brooks, 82 F.3d 50, 54-55 (2d Cir.) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)), cert. denied, 519 U.S. 907 (1996). Indeed, the right to reasonable cross-examination "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Michigan v. Lucas. 500 U.S. 145, 149 (1991) (quoting Rock v. Arkansas. 483 U.S. 44, 55 (1987)) (internal quotation marks omitted); see also, e.g., Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir.2006). Specifically, "a witness' testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross-examination." United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert, denied, 375 U.S. 822 (1963).
Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.) (internal citations omitted), cert, denied, 502 U.S. 926 (1991); see also United States v. Treacy, 639 F.3d 32, 45 (2d Cir.2011); Cardillo, 316 F.2d at 611. "[A] distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination." Cardillo, 316 F.2d at 611. Moreover, the key "question is whether the defendant's inability to examine the witness precludes defendant from testing the truth of the witness's direct testimony or whether the `answers solicited might have established untruthfulness with respect to specific events of the crime charged.'" Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir.1979) (internal citation omitted) (quoting Cardillo, 316 F.2d at 613); see also Avincola v. Stinson, 60 F.Supp.2d 133, 155 (S.D.N.Y.) ("The Sixth Amendment is violated . . . only where assertion of the witness's privilege `undermines the defendant's opportunity to test the truth of the witness' direct testimony.'") (quoting Bagby, 932 F.2d at 135) (Report and Recommendation), adopted by 60 F.Supp.2d 133 (S.D.N.Y.1999). As noted above, the Sixth Amendment is only "violated when a witness asserts the privilege with respect to a non-collateral matter and the defendant is deprived of a meaningful opportunity to test the truth of the witness' direct testimony." Bagby, 932 F.2d at 135.
Petitioner does not dispute that he had a full opportunity to cross-examine Cassatt and Thon about each of their roles in the plot to murder Mrs. Visich. Additionally, Petitioner elicited testimony from Cassatt, Thon, and Detective Youngman that served to test the truthfulness of the direct testimony provided by Cassatt and Thon about their prior relationship and about Cassatt's role in Mrs. Visich's murder, specifically including: (1) Thon's admission that he expected to obtain the remainder of the fee that Petitioner owed him from Cassatt after the murder; (2) Thon's admission that he telephoned Cassatt several times in the days following the murder to inquire about the fee; (3) Cassatt's admission that Thon called him several times in the days following the murder; (4) Cassatt's admission that he failed to tell the police about his having referred Petitioner to Thon; and (5) Detective Youngman's testimony that Thon told Youngman that Thon "had beaten and scared people at the behest of Cassatt," had been "enlisted [by Cassatt] to go to Chicago and . . . scare somebody for $1800," and "had done strong-arm work for Cassatt in the past."
Respondent argues in opposition that Petitioner's Brady claim is without merit because the statement set forth in the pre-sentence report was not itself evidence but rather reflects the drafting probation officer's "understanding and interpretation of the evidence" and therefore was "simply . . . an assumption made by an uninvolved third party whose job was to summarize the evidence in a report to assist the court in meting out an appropriate sentence for petitioner." Resp't's Mem. at 10; see also id. at 911. According to Respondent, the Appellate Division's rejection of Petitioner's Brady claim on the merits was neither contrary to, nor involved an unreasonable application of, clearly established federal law. See id. at 11; see also Visich, 870 N.Y.S.2d at 379 (noting that Petitioner's "remaining contentions," including his Brady claim, "are without merit"). Respondent does not dispute that Petitioner presented this claim to the Court of Appeals in his request for leave to appeal. Because the state court adjudicated Claim 2 on the merits, the Court will assess the merits of this claim using the deferential AEDPA standard of review. See 28 U.S.C. § 2254(d)(1)(2).
Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). Thus, "[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene. 527 U.S. 263, 281-82 (1999).
In this case, Petitioner has failed even to establish that any alleged Brady material actually existed at the time of his prosecution or was withheld by the state. Petitioner claims that the existence of exculpatory evidence is established merely by a statement in a pre-sentence report that was drafted by a probation officer who was characterizing the prosecution's summary of the evidence against Petitioner. Petitioner has no personal knowledge regarding the potential source or specific nature of the alleged Brady material underlying this statement. Without more, Petitioner's unsupported assertion that the prosecution failed to disclose exculpatory or impeaching information at the time of trial regarding Petitioner's initial request for a referral from Cassatt is insufficient to warrant habeas relief. See Beard v. Unger, No. 06-CV-0405 (MAT), 2009 WL 5042696, at *7 (W.D.N.Y. Dec. 15, 2009) ("As a matter of law, mere speculation by a defendant that the government has not fulfilled its obligations under Brady . . . is not enough to establish that the government has, in fact, failed to honor its discovery obligations.") (internal citation omitted) (quoting United States v. Upton, 856 F.Supp. 727, 746 (E.D.N.Y.1994)) (internal quotation marks omitted); Martinez v. Phillips, No. 04 Civ. 8617(RPP), 2009 WL 1108515, at *26 (S.D.N.Y. Apr. 24, 2009) ("[I]t is [petitioner's] burden to prove that the government failed to disclose evidence favorable to [petitioner]. Conclusory allegations that the government `suppressed' or `concealed' evidence do not entitle [petitioner] to relief") (quoting Harris v. United States, 9 F.Supp.2d 246, 275 (S.D.N.Y.1998)); McKinney v. Burge, No. 9:04-CV-1150 (GTS/DEP), 2009 WL 666396, at *23 (N.D.N.Y. Mar. 10, 2009) (collecting cases rejecting speculative Brady claims). Because Petitioner's Brady and related prosecutorial misconduct claims are speculative and therefore lack merit, Claim 2 must be denied.
In opposition, Respondent argues that the question of whether Petitioner's consent was voluntary is merely "academic," given the state court's determination that "the evidence was lawfully seized pursuant to a valid search warrant." Resp't's Mem. at 12. Moreover, Respondent argues that Petitioner's claim is without merit because (1) his consent was voluntary, (2) the search performed was within the scope of his consent, and (3) "[t]his issue was fully and fairly litigated at the pretrial suppression hearing," which was "proper in all respects." Id. at 12; see also id. at 14-22. Accordingly, Respondent argues that "the state court's denial of this claim on the merits was correct and fully comports with federal law" and, therefore, "the petition should be denied." Id. at 14; see also id. at 22.
While "[i]t is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is `per se unreasonable . . . subject only to a few specifically established . . . exceptions [,]' . . . . [i]t is equally well settled that one of [those] . . . exceptions . . . is a search that is conducted pursuant to consent." Schneckloth, 412 U.S. at 219. In order to be valid, consent must have been "voluntarily given" and not the product of duress or coercion when considered based on the totality of the circumstances. See id. at 223-234. One factor to be considered in making this determination is the "setting in which the consent is obtained." United States v. Moreno. No. 08-CR-605 (CPS), 2009 WL 454548, at *7 (E.D.N.Y. Feb. 24, 2009), including whether the person was in police custody and whether the police advised the person of his right to refuse consent. See Brewster v. People of State of N.Y., No. 08-CV-4653 (JFB), 2010 WL 92884, at *56 (E.D.N.Y. Jan. 6, 2010). While "a consent to search that is obtained from a person in custody does require very careful scrutiny," the "absence of Miranda warnings does not make consent to a search invalid per se." United States v. Memoli, 333 F.Supp.2d 233, 237 (S.D.N.Y.2004) (citing United States v. Moreno, 897 F.2d 26, 33 (2d Cir.1990); United States v. Puglisi, 790 F.2d 240, 240, 24344 (2d Cir.1986); United States v. Faruolo, 506 F.2d 490, 495 (2d Cir.1974)).
Fourth Amendment claims may only be reviewed by a habeas court if one of two narrow exceptions applies: "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.1992). Petitioner does not — nor could he — contend that New York failed to provide corrective procedures to redress his alleged Fourth Amendment claim. Indeed, as the Second Circuit has noted, "the federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y.Crim. Proc. Law § 710.10 et seq., as being facially adequate." Id. at 70 n. 1 (internal citation omitted) (internal quotation marks omitted). Additionally, Petitioner does not suggest that an unconscionable breakdown of the state process occurred. Indeed, the trial court conducted an eight-day pretrial suppression hearing, and the Appellate Division affirmed the trial court's determinations based on that hearing.
For the reasons set forth above, I conclude — and respectfully recommend that Your Honor should conclude — that the Petition should be
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. Edgardo Ramos, 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.
Requests for extensions of time to file objections must be made to Judge Ramos.
Not Reported in F.Supp.2d, 2013 WL 3388953
GEORGE A. YANTHIS, United States Magistrate Judge.
In 2007, a jury convicted petitioner for murder in the second degree and burglary in the second degree in the death of her own mother. See Affidavit in Support of Motion to Dismiss Petition for a Writ of Habeas Corpus ("Aff.Supp't"), at 2. On January 29, 2008, she was sentenced to 25 years to life imprisonment for the crime of murder in the second degree and a concurrent determinate term of 15 years imprisonment, with five years post-release supervision, for the crime of burglary in the second degree. See Aff. Supp't at 2. On December 15, 2009, the Appellate Division, Second Department, affirmed petitioner's conviction. See People v. Trovato, 68 A.D.3d 1023, 891 N.Y.S.2d 453 (2d Dept.2009). On March 30, 2010, the New York Court of Appeals denied petitioner's motion seeking leave to appeal. People v. Trovato, 14 N.Y.3d 806, 925 N.E.2d 945, 899 N.Y.S.2d 141 (2010). Petitioner did not seek a writ of certiorari from the United States Supreme Court. She is currently incarcerated at the Bedford Hills Correctional Facility in Bedford Hills, New York.
Petitioner did not move under New York CPL 440.10 to vacate her judgment of conviction. She alleges that she could not file a CPL 440.10 motion because she was unable to obtain her trial transcripts. See Petitioner's Brief in Support of Request for Permission to File a Late Habeas Corpus Petition. After unsuccessful attempts to obtain her trial transcripts from defense or appellate counsel, petitioner filed a motion in Westchester County Supreme Court seeking the trial transcripts. Id. The motion was returned to her because she failed to include an application to proceed in forma pauperis. Id. On May 29, 2010, she mailed the motion to the court again. See pet. at 24. On September 22, 2010, the court denied the motion. Id.
On August 23, 2011, petitioner filed a pro se petition for a writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. See Docket ("Dkt") # 1. Trovato's petition challenges her conviction on the following grounds: (1) the police and district attorney impermissibly used civilian agents to obtain incriminating evidence after petitioner invoked her right to counsel; (2) ineffective assistance of counsel; (3) failure by the trial court to instruct the jury as to extreme emotional disturbance and lesser included offense of manslaughter in the first degree; (4) legally insufficient evidence to prove burglary in the second degree; (5) petitioner's sentence was excessive. Petitioner also asserts the following unexhausted grounds for habeas relief: (1) three jurors had some contacts with members of petitioner's family outside of the courtroom; (2) one of the detectives in petitioner's case had the two key witnesses sign false statements; (3) petitioner's truck was illegally searched and items were confiscated without a valid search warrant; (4) petitioner is factually innocent of the crimes; (5) petitioner's counsel failed to inform the court that petitioner was medicated and failed to conduct a mental evaluation of petitioner; and (6) petitioner's co-defendant withheld exculpatory evidence from the prosecutors.
Presently before this Court is respondent's motion to dismiss the petition as untimely filed.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations for filing habeas corpus petitions seeking relief from state court convictions. See 28 U.S.C. § 2244(d)(1). The one-year limitations period commences, as relevant in this case, on "the date on which the [petitioner's] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id.
Here, petitioner's judgment became final on June 28, 2010, upon the expiration of the 90-day period for seeking a writ of certiorari with the United States Supreme Court. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998). The one year statute of limitation period began running on June 28, 2010, the day the judgment became final and expired one year later on June 28, 2011. See 28 U.S.C. § 2244(d)(1). Petitioner filed her petition on August 23, 2011, almost two months after the expiration of the statute of limitation. Thus, the petition was untimely under 28 U.S.C. § 2244(d)(1).
The limitation period is tolled, under 28 U.S.C. § 2244(d) (2), during the time, "which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgement or claim is pending. . . ." 28 U.S.C. § 2244(d)(2). For the purposes of § 2244(d) (2), a motion is properly filed when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett. 531 U.S. 4, 8 (2000). Furthermore, a motion is pending, "from the time it is first filed until the time it's finally disposed of and further appellate review is unavailable under the particular state's procedures." Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir.2009). Petitioner avers that she filed a post-conviction motion seeking her trial transcripts. The motion for transcripts does not seek a "judicial reexamination of a judgment of claim." See Wall v. Kholi, 131 S.Ct. 1278, 1285(2011). Therefore, it does not seek a post-conviction review of Trovato's conviction. As such, the motion for the transcripts does not toll the statute of limitation.
Trovato's petition is time-barred under AEDPA as of June 28, 2011. The petition was not statutorily tolled and thus, should be dismissed unless it is entitled to equitable tolling.
Here, petitioner failed to identify any "extraordinary circumstances" that prevented her from timely filing her habeas petition. See Pillco v. Bradt, No. 10 Civ. 2393, 2010 WL 3398467, at *2 (S.D.N.Y. Aug. 26, 2010) (burden is on petitioner to prove extraordinary circumstances); Collins v. Artus, 496 F.Supp.2d 305, 313 (S.D.N.Y.2007) ("petitioner must support his allegations [of extraordinary circumstances] with evidence"). Petitioner alleges that she was misinformed by the library law clerk that she was required to file a CPL 440.10 motion prior to filing a habeas petition. See Affirmation for Timeliness at 1, 5. Petitioner further alleges that she is entitled to equitable tolling of her petition because she diligently pursued her rights by requesting her trial transcript numerous times in order to prepare her CPL 440.10 motion. See Petitioner's Affidavit in Support of Answer to Respondent's Motion to Dismiss Petitioner's Habeas Corpus ("Pet.Aff.Supp't"), at 4-5. Petitioner avers that her inability to obtain her transcripts "caused an undue hardship and impeded her ability to file an appeal." Id. at 5. Lastly, petitioner attempts to argue actual innocence. Id. at 6. Simply stated, the "circumstances" petitioner alleges can hardly be regarded as "extraordinary" and do not justify equitably tolling the statute of limitation.
Petitioner asserts that the AEDPA's statute of limitations should be tolled because she was not familiar with the AEDPA's requirements. She alleges that she relied on the advice of a prison law clerk who told her that the filing of a CPL 440.10 motion was required prior to the filing of a habeas petition. Misinformation provided by a prison law clerk does not warrant equitable tolling. A prisoner's reliance on the misinformation of prison law clerks or other inmates is insufficient to result in an equitable tolling of the limitation period. See, e.g., Marte v. Brown, No. 09 Civ. 1036, 2010 WL 1644271, at *4 (S.D.N.Y. Apr. 21, 2010) ("Similarly, relying on the misinformation of prison law clerks does not justify equitable tolling."); Agramonte v. Walsh, No. 00 Civ. 892, 2002 WL 1364086, at *2 (E.D.N.Y. June 20, 2002) ("In any event, petitioner's reliance on bad advice from an inmate assistant is not an extraordinary circumstance that justifies equitable tolling."); Roman v. Artuz, No. 00 Civ. 1400, 2000 WL 1201392, at *2 (S.D.N.Y. Aug. 22, 2000) ("Roman's allegations that he . . . relied on the advice of prison law clerks are insufficient to warrant equitable tolling.").
Finally, Trovato attempts to argue actual innocence. Trovato alleges that she has actual proof of her innocence. However, she proffers no new evidence in light of which "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). See also Marte, 2010 WL 1644271, at *2-3. The Supreme Court requires a showing of new reliable evidence, such as "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial," and an explanation of how the "timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence. See House v. Bell, 547 U.S. 518, 537 (2006). The Supreme Court stated that the district court is to consider "all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admissible at trial," and "make a probabilistic determination about what reasonable, properly instructed jurors would do." Id. at 537-38. This standard is "demanding and permits review only in the extraordinary case." Id. at 538 (internal quotations omitted).
Here, Trovato only contends that she is innocent of the crime because the key witness failed to inform the prosecutors that he has exculpatory evidence. Petitioner further states, for the first time in her petition, that the exculpatory evidence is that the key witness threatened and raped her; and coerced her into falsely admitting the crime. Trovato does not provide any support for said assertions. Nor does she provide any trustworthy eyewitness account or physical evidence that corroborates it. Petitioner's bare assertion, on its own, fails to make the showing necessary for the Court to evaluate her claim. As such, petitioner's innocence claim does not provide a basis for equitable tolling.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b)(3) of the Rules governing § 2254 proceedings, the parties shall have fourteen (14) days from receipt of this Report to serve and file written objections to this Report and Recommendation. If copies of this Report are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of this Report to file and serve written objections. See Rule 11 of the Rules governing § 2254 proceedings; Fed.R.Civ.P. 6(d). Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Vincent Briccetti at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at 300 Quarropas Street, White Plains, New York 10601.
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 the Honorable Vincent Briccetti and not to the undersigned.
Not Reported in F.Supp.2d, 2012 WL 7060608
BRICCETTI, District Judge.
Petitioner was convicted in Supreme Court, Westchester County, of murder in the second degree and burglary in the second degree, in the death of her mother. Her conviction was affirmed by the Appellate Division, Second Department, and her motion seeking leave to appeal was denied by the Court of Appeals on March 30, 2010. She filed the instant petition on August 23, 2011. Chief Judge Preska issued an order directing petitioner to show cause by affirmation why her petition should not be dismissed as time barred. Petitioner filed an affirmation, and respondent thereafter moved to dismiss the petition as untimely filed. Judge Yanthis recommended that this Court grant respondent's motion. (Doc. # 16).
For the reasons set forth below, the Court adopts the R & R as the opinion of the Court, and GRANTS the motion to dismiss. The petition is dismissed in its entirety.
In reviewing a magistrate judge's recommended ruling, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Parties may raise objections to the recommended ruling, but they must be "specific" and "written," and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); see Fed.R.Civ.P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. See Wilds v. UPS, Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates her original arguments. Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y.2008).
The objections of parties appearing pro se are "generally accorded leniency," Milano v. Astrue, 2008 WL 4410131, at *2 (S.D.N.Y. Sept.26, 2008),
A petition for a writ of habeas corpus must be filed within one year of the latest of four triggering events. In this case, the triggering event was the "date on which [petitioner's state court] 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). Petitioner's judgment became final on June 28, 2010, ninety days after the New York Court of Appeals denied her motion for leave to appeal, which was the deadline for seeking a writ of certiorari from the United States Supreme Court. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998). Thus, the one year statute of limitation expired June 28, 2011. Since the instant petition was filed on August 23, 2011, it was untimely under 28 U.S.C. § 2244(d)(1)(A). And since petitioner did not file an application in State court for post-conviction relief or other collateral review, the one year statute in this case was not tolled. See 28 U.S.C. § 2244(d)(2).
The central question addressed by Magistrate Judge Yanthis was whether petitioner was nonetheless entitled to equitable tolling of the AEDPA limitation period. For equitable tolling to apply, petitioner must show that she diligently pursued her rights and that "some extraordinary circumstance . . . prevented timely filing." Holland v. Florida, ___ U.S. ___, ___, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010). Petitioner argues she is entitled to equitable tolling because she was misinformed by a prison law library clerk that she was required to file a motion for post-conviction relief under N.Y. C.P.L. § 440.10 prior to filing her federal habeas petition; she diligently pursued her rights by requesting her trial transcripts numerous times in order to prepare her CPL 440.10 motion; her inability to obtain her trial transcripts caused undue hardship and impeded her ability to file an appeal; and she is actually innocent of the charges for which was convicted.
In the R & R, Judge Yanthis rejected petitioner's arguments because (1) misinformation provided by a prison law clerk is not an extraordinary circumstance preventing timely filing of the petition, (2) petitioner has not alleged that her inability to obtain the trial transcripts, even if she acted diligently in attempting to obtain them, somehow prevented her from filing the habeas petition on time, and (3) she proffered no new reliable evidence in light of which it is likely no reasonable juror would have found her guilty beyond a reasonable doubt. Accordingly, Judge Yanthis found that petitioner is not entitled to equitable tolling of the one year statute of limitation, and recommended that the motion to dismiss be granted and that the petition be dismissed in its entirety.
Having reviewed the petition, petitioner's affirmation for timeliness, respondent's motion to dismiss, petitioner's response to the motion, and petitioner's objections to the R & R, as well as other papers submitted in this case, the Court concludes that Judge Yanthis's thorough and well-reasoned R & R is not clearly erroneous. Moreover, the R & R correctly found that petitioner was not entitled to equitable tolling.
Judge Yanthis's R & R is hereby adopted in its entirety as the opinion of the Court. The motion to dismiss the petition for a writ of habeas corpus is GRANTED, and the petition is DISMISSED as time-barred. The Clerk is instructed to enter judgment accordingly and close this case.
The Clerk is also instructed to terminate the motion. (Doc. # 16).
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3d 192, 195 (2d Cir.2005). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
Not Reported in F.Supp.2d, 2013 WL 636956
Prisoner brought petition to set aside or vacate his sentence. The District Court, Haight, Senior District Judge, held that equitable tolling of Antiterrorism and Effective Death Penalty Act (AEDPA) statute of limitation was not warranted.
Petition denied.
HAIGHT, Senior J.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year limitation period on the filing of section 2255 petitions which begins to run on the day the defendant's judgment of conviction becomes final. See 28 U.S.C. § 2255(1). A petitioner's conviction becomes final when the United States Supreme Court denies his petition for a writ of certiorari. United States v. Leon, 203 F.3d 162, 163 (2d Cir.2000). Padilla acknowledges that his habeas petition was due on October 2, 2001, one year after the Supreme Court denied his petition for a writ of certiorari. Padilla first submitted his "barebones" 2255 petition on January 10, 2002, but it was returned by the Clerk's Office of this Court for an original signature. The petition with his original signature was returned and officially docketed on February 11, 2002. Using either date as the submission date Padilla's petition was several months late.
The Second Circuit has taken the position that the AEDPA's one-year statute of limitations is not a jurisdictional bar and is therefore subject to equitable tolling. Green v. United States, 260 F.3d 78, 82 (2d Cir.2001). However the court of appeals has also admonished that equitable tolling applies only in " `rare and exceptional' circumstances" in habeas cases. Id. (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000)). To qualify for equitable tolling, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." Smith, 208 F.3d at 17. The burden is on the petitioner to demonstrate the existence of such extraordinary circumstances. Ortiz v. Senkowski, 01 Civ. 2402, 2001 WL 1267178, *2 (S.D.N.Y. Oct.22, 2001). Even when extraordinary circumstances are shown, the statute of limitations will be stayed only if the petitioner "acted with reasonable diligence throughout the period he seeks to toll." Smith, id. If despite the exceptional circumstances the petitioner could have filed the petition on time through the exercise of "reasonable diligence," the petitioner cannot secure the benefit of equitable tolling. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000).
In his motion requesting an extension of the limitations period, Padilla argues that his delay in filing resulted from the following circumstances which are not seriously in dispute. Padilla was not notified by his appellate counsel that the Supreme Court had denied his certiorari petition until three months after its denial. In January of 2001, soon after he learned that his conviction was final, he sought the assistance of students participating in the University of Kansas School of Law's Defender Project ("the Project"). Letters constituting a trail of correspondence between Padilla and the Project, as well as Padilla's letters to his former counsel and this Court, are attached to Padilla's motion. The letters demonstrate that the Project's potential assistance was initially delayed by confusion over whether Padilla's appellate counsel was planning to file a habeas petition on his behalf. The Project informed Padilla in late April that its law students could not assist him if he was still being represented by his appellate counsel. It was not until the middle of June that the Project was satisfied that Padilla was no longer represented by counsel and began to review his file in earnest.
The Project students informed Padilla in a letter dated July 25, 2001 that they would not prepare a 2255 petition for him because their review of the record led them to conclude that his arguments had no merit. However, for the next several months, the Project students continued to review his file in an attempt to determine whether there was sufficient newly discovered evidence to support a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Unlike a 2255 petition, under Rule 33's different time limit, Padilla's motion would not have been due until February 2, 2002. However, in a letter dated October 31, 2001, a Project student carefully evaluated the evidence, explained to Padilla that sufficient grounds for a Rule 33 motion did not exist and notified him that they would not be preparing such a motion for him. The student also stated that he was returning all of Padilla's documents and transcripts to him by certified mail.
Padilla argues that the combination of the three month delay in learning about the denial of certiorari, the initial confusion about whether he was represented by counsel and his ignorance of the law warrant the extension of time. Padilla also seems to suggest that a delay in obtaining certain transcripts and DD-5 witness reports excuses his late filing. Padilla's reasons are not sufficient to justify equitable tolling.
As a preliminary matter, Padilla's suggestion that the process involving the Project law students' review of his case should somehow excuse his untimely filing is unavailing. Habeas corpus petitioners have no right to counsel. Bloomer v. United States, 162 F.3d 187, 192, n. 1 (2d Cir.1998). Padilla certainly was not entitled to help from University of Kansas law students. He understandably sought their help in preparing his petition because he is an inexperienced layperson. But there was no guarantee the students would take the case, a consideration that the students made clear from the outset. Padilla was admittedly well aware of his October 2, 2001 deadline for many months before it expired. Despite Padilla's entirely understandable hope that the Project law students his sincere hope that the law students would assist him, the non-delegable responsibility for meeting that deadline rested firmly with him. Padilla should have been prepared for the possibility that the Project would not take his case. He had no reason to assume that it would, students wouldn't take his case. He should have been ready to file a timely 2255 petition if the Project turned him down.
To be sure, Padilla's appellate counsel's inexplicable three-month delay in notifying that his certiorari petition had been denied, and the Project law students' initial erroneous belief that they could not help him because he was still represented by counsel, were external forces out of Padilla's control that foreshortened his preparation process. But even assuming dubitante that these factors could be considered "exceptional" rather than ordinary, whatever delays were caused by the confusion and the late notification clearly did not affect his ability to file a timely petition. In January 2001,, when Padilla finally learned that certiorari had been denied, he understood that his deadline for filing a 2255 petition was in May 2001. In April, he learned that this initial belief was mistaken and that he had until October to file the petition. The confusion about his representation was cleared up by mid-June. Padilla was aware by late July, 2001, more than two months before his petition was due, that the Project would not help him file his petition. The July 25, 2001 letter, in which a Project student informed Padilla that she saw no basis for a petition, also reminded Padilla that the deadline for filing his petition was October 2. A September 11, 2001 letter from another Project student included a blank form for filing a 2255 petition.
As noted, Padilla cites delays in obtaining DD-5 witness reports and other unspecified "information and transcripts" as one of the reasons for filling the late petition. Memorandum in Support of Leave to File Late § 2255 Motion at 2. This argument does not excuse his default. Padilla does not describe the documents or transcripts sought, the length of or reason for the delay, or his efforts in obtaining them. Without knowing what materials he was missing and how he attempted to obtain them, it is impossible to assess the validity of Padilla's claim that his ability to file his petition was hindered by his late access to them. As the government points out, based on Padilla's claims in support of his habeas petition and some of his correspondence with the law students, the transcripts Padilla needed to support his motion seem to be the transcripts of Darrell Gray's testimony at Padilla's trial and of James Albizu at the trial of Padilla's co-defendants. Padilla would likely have also needed Albizu's post-arrest statement and DD-5s. But the July 25 letter from the law student indicates that the students had reviewed Albizu's DD-5s and post-arrest statement and Darrell Gray's trial testimony by the time they rejected the case. Moreover, the September 10 letter notes that they had by then received the Albizu transcript. Thus, although it is not clear what transcripts and DD-5s he was missing, it appears that Padilla had access to all of the materials that were necessary to make his arguments well before the October 2 deadline.
Even if Padilla did not have all the necessary materials or experienced a delay in obtaining them, those are not extraordinary circumstances warranting equitable tolling. See Davis v. McCoy, 2000 WL 973752, *2 (prisoner's lack of access to necessary court papers for two years did not constitute an extraordinary circumstance); Fadayiro v. United States, 30 F.Supp.2d 772, 779 (D.N.J.1998) (fact that petitioner had been unable to obtain transcripts and other records needed for his 2255 petition did not rise to the level of extraordinary circumstances justifying equitable tolling). Moreover, even if the delays in receiving whatever documents he believed necessary could be considered extraordinary, Padilla has not shown that he made any effort to file his petition without them, or filed his petition promptly after he obtained them. In short, Padilla has failed to demonstrate that he was reasonably diligent in attempting to file his petition despite the purported delays in obtaining the materials.
Padilla's request to file a late petition is denied. The Clerk of the Court is directed to dismiss his petition with prejudice.
It is SO ORDERED.
Not Reported in F.Supp.2d, 2002 WL 31571733.
