Green v. Capri

MARCUS GREEN, Petitioner, v. M. CAPRI, Respondent.

9:17-CV-0392 (BKS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

May 31, 2018

APPEARANCES:

MARCUS GREEN

08-A-3378

Petitioner, pro se

Sing Sing Correctional Facility

354 Hunter Street

Ossining, NY 10562

HON. ERIC T. SCHNEIDERMAN

Counsel for Respondent

Office of the Attorney General

120 Broadway

New York, New York 10271

OF COUNSEL:

PAUL B. LYONS, ESQ.

PRISCILLA I. STEWARD, ESQ.

Assistant Attorneys General

BRENDA K. SANNES United States District Judge

DECISION and ORDER

I. INTRODUCTION

Petitioner Marcus Green, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet."). Respondent filed a response in opposition to the petition and pertinent records from the state court proceedings. Dkt. No. 17, Answer; Dkt. No. 17-1, Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("R. Mem."); Dkt. Nos. 17-2, 18, 18-1, 18-2, 18-3, 18-4, State Court Records.

Liberally construed, the petition contends that petitioner is entitled to habeas relief on the following grounds: defense counsel rendered ineffective assistance (Ground One, Ground Four); his conviction must be vacated based upon newly discovered evidence (Ground Two); and the prosecution failed to disclose material in violation of Brady v. Maryland, 373 U.S. 83 (1963) (Ground Three). Pet. at 5-10.

For the reasons that follow, the petition is dismissed.

II. RELEVANT BACKGROUND

The New York State Supreme Court, Appellate Division, Third Department, summarized the pertinent facts as follows:

In October 2003, the three child victims moved into a house in the City of Albany shared by defendant, his girlfriend (who had become custodian of the victims after their mother's death) and the couple's four children. Defendant moved out of the home in January 2005, the day after victim C disclosed to the girlfriend that defendant had acted inappropriately towards her; almost two years later, victim A disclosed that defendant had subjected him to oral and anal sexual contact between 2003 and 2005. Victim B then disclosed that defendant had subjected him to sexual contact as well. As a result, defendant was arrested and charged by indictment with the crimes of course of sexual conduct against a child in the first degree related to victim A and three counts of endangering the welfare of a child.

All three victims testified at the 2008 jury trial, at which time victim A was 12 years old, victim B was 13 years old and victim C was 11 years old. Defendant was convicted of the crimes of course of sexual conduct against a child in the first degree and three counts of endangering the welfare of a child, one count with respect to each victim. Defendant was sentenced to an aggregate prison term of 25 years and five years of postrelease supervision[.]

People v. Green, 108 A.D.3d 782, 783 (3d Dep't 2013). On Septem ber 20, 2013, the New York Court of Appeals denied leave to appeal. People v. Green, 21 N.Y.3d 1074 (2013).

Following his direct appeal, petitioner filed a counseled motion, dated November 14, 2014, to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Dkt. No. 18-3 at SR 180-238.¹ One of the bases for petitioner's motion was his actual innocence based upon purported newly discovered evidence, including an affidavit from one of the victims, recanting her trial testimony. Id. at SR 184, 192, 200-201. On August 6 and August 12, 2015, the Albany County Court held a hearing on petitioner's motion. In a written decision dated December 11, 2015, the court denied the motion. Dkt. No. 18-3 at SR 269-272. Petitioner sought leave to appeal, and, on February 3, 2016, the Third Department denied that application. Pet. at 2; Dkt. No. 17-2 at USR 8.²

The specific facts are known to the parties and will be enumerated only to the extent necessary to address the issues raised by the petition.

III. DISCUSSION

A. Timeliness

Upon initial review of the petition, the Court directed petitioner to file a written affirmation explaining why the statute of limitations should not bar his petition. Dkt. No. 6 at 4-5, Decision and Order, filed May 19, 2017. On June 15, 2017, petitioner filed the required affirmation. Dkt. No. 7. In his affirmation, petitioner asserted that his petition should be deemed timely for the following reasons: (1) the prison at which he was confined had been locked down in the months of March 2017 and April 2017; (2) there were "variousadministrative lockdowns" of the building where the law library was located; (3) "call outs" to access the law library "take[] a week," and, in "all the months" of 2015 and 2016, his call outs were often terminated due to lockdowns or power outrages; and (4) "[o]ver the years," there have been "various circumstances beyond [his] control" that prevented him from meeting the timeliness requirement. Id. at ¶¶ 3-5.

Respondent argues that petitioner's petition is untimely because (1) it was filed after the one-year limitations period expired, (2) statutory tolling is insufficient to render it timely, (3) petitioner is not entitled to equitable tolling, and (4) petitioner has not demonstrated any basis for concluding that he is actually innocent. R. Mem. at 11-15.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") 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 latest of several events: 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; the date on which an unconstitutional, state-created impediment to filing a habeas petition is removed; the date on which the Supreme Court initially recognized the constitutional right on which the petitioner bases his habeas application if that right was newly recognized and made retroactively applicable; or the date on which the petitioner could have discovered the factual predicate for the claim or claims presented through the exercise of due diligence (newly discovered evidence). 28 U.S.C. § 2244(d)(1)(A)-(D); Gonzalez v. Thaler, 565 U.S. 134, 148-49 (2012).

The AEDPA limitations period generally begins to run when the conviction being challenged becomes final, and petitioner does not argue to the contrary in this case. Forpurposes of section 2244(d)(1)(A), 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. Thaler, 565 U.S. at 149; Saunders v. Senkowski, 587 F.3d 543, 548-49 (2d Cir. 2009).

In this case, the New York Court of Appeals denied leave to appeal on September 20, 2013. Green, 21 N.Y.3d at 1074. Petitioner did not seek certiorari, and his conviction thus became final for purposes of the AEDPA ninety days later, on December 19, 2013. Thaler, 565 U.S. at 149. Petitioner had one year from that date, or until December 19, 2014, to file a timely federal habeas petition. See Saunders v. Senkowski, 587 F.3d 543, 548-49 (2d Cir. 2009). Petitioner placed his petition in the prison mailing system on April 6, 2017.³ See Pet. at 5.

1. Statutory Tolling

The one-year limitation period under the 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. 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 application wastaken. Saunders, 587 F.3d at 548; accord, Smith, 208 F.2d at 16.

Here, petitioner filed a CPL § 440.10 motion on November 14, 2014, at which point 329 days had elapsed on the limitations period. Dkt. No. 18-3 at SR 180-238. His motion remained pending until February 3, 2016, when the Third Department denied leave to appeal from the county court's denial of his motion. Pet. at 2. The AEDPA limitations period was tolled while his motion was pending and expired 36 days later, on March 10, 2016. Thus, measuring the limitations period from the date on which petitioner's conviction became final, his petition was filed over a year late.⁴

As respondent notes, petitioner's claims for relief are premised, at least in part, on his purported innocence, and in his CPL § 440.10 motion, petitioner argued that newly discovered evidence required vacatur of his conviction. See, e.g., Dkt. No. 18-3 at SR 180, 184, 189-192. The "newly discovered evidence" included an affidavit from one of the victims, D.B., recanting her prior statements and trial testimony. Id. at SR 184, 192; accord, id. at SR 200-201. Pursuant to 28 U.S.C. § 2244(d)(1)(D), the one-year AEDPA limitations period may begin to run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."

Even if D.B.'s initial affidavit could be said to constitute the "factual predicate for" petitioner's claim(s), petitioner was aware of this factual predicate by, at the latest, October 14, 2014, the date on which D.B. executed the affidavit and the notary-petitioner's counsel-notarized it. Dkt. No. 18-3 at SR 201. The limitations period would have began onthat date and run until it was tolled by the filing of petitioner's CPL § 440.10 motion 31 days later, on November 14, 2014. See 28...