Marsden v. Colvin

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RICARDO MARSDEN, Petitioner, v. SUPERINTENDANT COLVIN, Respondent.

No. 17-CV-936 (LDH)

United States District Court, E.D. New York

September 30, 2022

MEMORANDUM AND ORDER

LASHANN DEARCY HALL, UNITED STATES DISTRICT JUDGE

Ricardo Marsden (“Petitioner”) brings the instant petition for a writ of habeas corpus against Superintendent Colvin (“Respondent”), pursuant to 28 U.S.C § 2254.

BACKGROUND

Following a jury trial, Petitioner was convicted in state court of two counts of second-degree felony murder, two counts of first-degree burglary, and two counts of attempted first-degree robbery relating to a 2006 murder. On direct appeal, the Appellate Division found that the state had failed to prove beyond a reasonable doubt that Petitioner had committed burglary in the first degree or murder in the second degree under the first count of the indictment, which was predicated upon Petitioner's commission or attempted commission of a burglary. People v. Marsden, 130 A.D.3d 945, 948 (2d Dep't 2015). The Appellate Division was satisfied, however, that the remaining convictions were not against the weight of the evidence, and further held that the trial court had properly denied Petitioner's motion to suppress his post-arrest statements. (Id. at 947-48.) On November 24, 2015, the New York Court of Appeals denied Petitioner's application for leave to appeal the Appellate Division's decision. People v Marsden, 26 N.Y.3d 1041 (2015).

On February 17, 2017, Petitioner filed a petition for habeas corpus relief. (See Original Petition (“Pet.”), ECF No. 1.) Petitioner raised three claims: (1) juror misconduct resulted in the denial of his right to a fair trial, his right to cross-examine witnesses against him, and the right to a fair and impartial jury; (2) the trial court abused its discretion by allowing into evidence multiple pictures of the victim's body because the sole purpose for the prosecutor's admission of the photographs was to “inflame” the emotion of the jurors; and (3) that the evidence was insufficient to sustain his convictions for felony murder, robbery, and burglary because no witnesses testified that defendant was at the scene of the crime. (Pet. at 5, 7, 8.) On May 5, 2017 Respondent filed an affidavit in opposition to the Petition. (Response to Pet. (“Resp.”), ECF No. 7.) Thirty-five days after that, Petitioner moved to stay the instant action to permit Petitioner to file a motion in New York state court to vacate his conviction pursuant to New York Criminal Procedure Law (“CPL”) § 440.10. (ECF No. 10.) On June 15, 2017, then-district court Judge Joseph Bianco granted Petitioner's request. (ECF No. 11.)

Through a serious of orders over the subsequent years, the stay was extended through January 6, 2020. On December 18, 2020, Petitioner requested an extension of the stay (ECF No. 25), and by letter dated June 22, 2021, Petitioner informed the Court that the Appellate Division, Second Department had affirmed the New York Supreme Court's denial of Petitioner's motion to vacate and requested two weeks to amend the petition. (ECF No. 26.) Because Petitioner's time to amend as of right expired on May 26, 2017, by order dated June 23, 2021, the Court directed the parties to brief Petitioner's motion to amend, specifically focusing on why Petitioner's claims are timely under 28 U.S.C. § 2244(d)(1) in light of the Supreme Court's holding in Mayle v. Felix, 545 U.S. 644 (2005).^[1] The Court granted Petitioner and the Government each 10 pages to make their arguments.

In direct contravention of this Court's order, and without seeking leave of Court, Petitioner filed a 25-page brief. Petitioner's counsel was not precluded from requesting additional pages, yet he did not do so. Nevertheless, the Court considered all 25 pages, only three of which presented any argument in support of his motion and failed to reference any specific facts to support such arguments. Respondent likewise submitted a brief in excess of the Court-ordered limit, without seeking leave of Court. Indeed, both parties exceeded the limitation by 15 pages, making quite clear that the rules set forth by the Court are of no moment to them. Moreover, even at 25 pages, these submissions omit much of the substance of the parties' arguments or citations to the record, and instead refer the Court to filings submitted in New York state court. In so doing, the parties ask the Court to cross reference legal arguments made under a different standard, in state court filings, and the factual assertions contained therein, to discern on its own how those arguments and facts bear on the instant motion. As such, the parties have asked Court to make a determination on this motion based on a submission made to the state court. The Court is unaware of any legal basis for the Court to do so and the parties have provided none. The Court has nevertheless assessed the substance of Petitioner's argument and finds it lacking.

DISCUSSION

Federal courts generally may not review habeas claims that are time barred or procedurally barred on independent and adequate state law grounds. There is, however, an exception where a petitioner has made a credible and compelling claim of actual innocence. In his motion to amend, Petitioner does not contend that his newly added claims are timely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) or that he is entitled to equitable tolling. Rather, Petitioner argues that the Court should grant his motion to amend because the newly added claims relate back to the initial petition and because he has “presented prima facie evidence of actual innocence.” (Pet'r Mem. L. Supp. Mot. Am (“Pet'r Mem.”) at 23, ECF No 27-4.) Respondent contends that (i) the newly added claims do not relate back to the claims raised in the initial petition and are therefore time barred, (ii) the newly added claims are procedurally barred on independent and adequate state grounds, and (iii) the “actual innocence” exception to these bars does not apply. (Resp.'s Mem. L. Opp'n Pet'r Mot. Amend (“Resp.'s Opp'n”) at 6-15, ECF No. 28-1.)

A. Timeliness Under AEDPA

With the passage of AEDPA, Congress set a one-year period of limitations within which a person in custody pursuant to a state court conviction may file a petition for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The one-year period runs from the date on which the latest of four events occurs:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

None of these subsections are satisfied here. At the outset, Petitioner has provided no basis upon which the Court can conclude that subsection (B), (C), or (D) is applicable. And, under subsection (A), the petition is untimely. Petitioner's judgment of conviction became final on February 22, 2016-90 days after the Court of Appeals denied his request for leave to appeal. See People v. Marsden, 26 N.Y.3d 1041 (2015); see also Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000) (conviction becomes final when ninety-day period to seek direct review from the United States Supreme Court by way of certiorari expires). The original petition in this action, which was filed pro se from prison, was stamped by the prison on February 17, 2017, and is therefore considered to have been filed on that date. See Houston v. Lack, 487 U.S. 266, 270 (1988) (a petition filed by an incarcerated defendant is deemed filed on the date it is given to correctional authorities for mailing to the court). Four days later, on February 21, 2017, the one-year statute of limitations for filing a habeas petition expired. See 28 U.S.C. § 2244(d)(1)(a). Accordingly, the statute of limitations has expired on Petitioner's habeas claim.

B. Whether Plaintiff's New Claims Relate Back to the Original Petition

Amendments made after the statute of limitations has expired relate back to the date of the original pleading only if “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B)). A habeas petition does not “relate back” and evade the AEDPA's time limit “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005).

Mayle is instructive on this point. There, the Supreme Court rejected a petitioner's interpretation of same “conduct, transaction, or occurrence” to mean same “trial, conviction, or sentence[,]” finding that such a reading would render Rule 15 meaningless in the habeas context. 545 U.S. at 664. The Supreme Court held that because petitioner's own pretrial statements, newly raised in his amended petition, were separated in time and type from a witness's videotaped statements that were raised in the original petition, the former would not relate back under the definition of “conduct, transaction, or occurrence.” Id. at 657. In contrast, in Mandacina v. United States, the original petition alleged Brady violations, while the amended...