Brown v. Burnett

N.D. New York

Brown v. Burnett

District Court, N.D. New York·Decided November 6, 2019·No. 9:19-cv-01295·Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK KILROY BROWN,

Petitioner, v. 9:19-CV-1295 (TJM) E. BELL,

Respondent. APPEARANCES: OF COUNSEL: KILROY BROWN Petitioner, pro se 14-B-1246 Clinton Correctional Facility P.O. Box 2000 Dannemora, NY 12929 THOMAS J. McAVOY Senior United States District Judge DECISION and ORDER I. INTRODUCTION Petitioner Kilroy Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet."). On October 24, 2019, the action was administratively closed due to petitioner's failure to properly commence it. Dkt. No. 2, Order dated 10/24/19. Petitioner was advised that if he desired to pursue this action he must so notify the Court and either (1) pay the filing fee of five dollars ($5.00), or (2) submit a completed, signed, and properly certified in forma pauperis (“IFP”) application, within thirty (30) days of the filing date of that Order. Id. at 2. Petitioner timely remitted the statutory filing fee, and the case was reopened. Dkt. Entry dated 10/28/19 (identifying receipt information from the filing fee transaction); Dkt. No. 3, Text Order dated 10/28/19 (reopening case); Dkt. No. 4. For the reasons that follow, petitioner is directed to file an affirmation addressing the issues discussed herein. II. THE PETITION

Petitioner challenges a 2014 judgment of conviction in Oneida County, upon a guilty plea, of first degree assault. Pet. at 1.1 Petitioner indicated that he did not directly appeal the conviction. Id. at 2. However, petitioner did collaterally attack his state court conviction. On April 20, 2017, petitioner filed a motion to vacate pursuant to New York Criminal Procedure Law § 440 (“440 motion”). Pet. at 3. The motion was denied, without a hearing, on August 1, 2017. Id. at 3- 4. Petitioner then sought leave to appeal the denial and, on January 11, 2018, the Fourth Department denied petitioner’s request for permission to appeal. Id. at 7; see also People v. Brown, 31 N.Y.3d 1115 (2018) (referencing a Fourth Department decision, regarding Oneida County, dated January 11, 2018). On June 21, 2018, the Court of Appeals also denied

petitioner’s application for leave to appeal. Brown, 31 N.Y.3d at 1115. Petitioner filed a second 440 motion in Oneida County Court on November 16, 2018. Pet. at 4. That motion was also denied, without a hearing, on January 30, 2019. Id. Petitioner contends that he is entitled to federal habeas relief because (1) the prosecution improperly withheld Brady material (Pet. at 5-8); (2) petitioner did not enter his guilty plea knowingly, intelligently, or voluntarily (id. at 8-9); and (3) petitioner’s counsel was constitutionally ineffective (id. at 9-14). For a more complete statement of petitioner's claims,

1 Citations to the petition refer to the pagination generated by CM/ECF, the Court's electronic filing system. 2 reference is made to the petition. III. DISCUSSION A. Timeliness The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on

April 24, 1996, established a one-year statute of limitations for prisoners to seek federal review of their state court criminal convictions. 28 U.S.C. § 2244(d)(1). The one-year period generally begins to run from the date on which the state criminal conviction became final by the conclusion of direct review or by the expiration of the time to seek direct review. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 & n.9 (2012).2 For purposes of section 2244, a state conviction becomes "final" when the United States Supreme Court denies an application for a writ of certiorari or when the time to seek certiorari has expired, which is ninety days after the date on which the highest court in the state has completed direct review of the case. Gonzalez, 565 U.S. at 150; Saunders v. Senkowski, 587 F.3d 543, 547-49 (2d Cir. 2009).

The one-year limitation period under AEDPA is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); Saunders, 587 F.3d at 548. The tolling provision "excludes time during which properly filed state relief applications are pending, but does not reset the date from which the one-year statute of limitations begins to run." Smith v.

2 Other dates from which the limitations period may start running are the date on which an unconstitutional, state-created impediment to filing a habeas petition is removed, the date on which the constitutional right on which the petitioner bases his habeas application was initially recognized by the Supreme Court, if the right was newly recognized and made retroactively applicable, or the date on which the factual predicate for the claim or claims presented could have been discovered through the exercise of due diligence (newly discovered evidence). 28 U.S.C. § 2244(d)(1)(B)-(D). None of the bases for a later date upon which the statute of limitations could have begun to run appear to apply in this case. 3 McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). The tolling provision excludes from the limitations period only the time that the state relief application remained undecided, including the time during which an appeal from the denial of the motion was taken. Saunders, 587 F.3d at 548; Smith, 208 F.2d at 16. Moreover, AEDPA's one-year statute of limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). To warrant

equitable tolling, a petitioner must show "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008). Courts have also recognized an equitable exception to the one-year statute of limitations under 28 U.S.C. §2244(d)(1) in cases where a petitioner can prove actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). However, a petitioner's lack of legal knowledge does not constitute extraordinary circumstances preventing him or her from filing a timely petition. Jenkins v. Greene, 630 F.3d 298, 305 (2d Cir. 2010); see Smith, 208 F.3d at 18 (noting that a petitioner's pro se status does not

establish sufficient ground for equitable tolling). Petitioner was sentenced on April 14, 2014. Pet. at 1. Petitioner did not directly appeal that conviction. Id. at 2. Because petitioner failed to file a notice of appeal his conviction become final thirty days after he was sentenced. See Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir.

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