Pleasant v. Capra, 1:16-cv-09842 (LAP) (SDA)

Pleasant, Petitioner, v. Capra, Respondent.

1:16-cv-09842 (LAP) (SDA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 1, 2018

REPORT AND RECOMMENDATION

STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE:

Petitioner Lamaar A. Pleasant ("Petitioner" or "Pleasant"), a New York prisoner currently incarcerated at Sing Sing Correctional Facility, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent Michael Capra, Superintendent of Sing Sing Correctional Facility ("Respondent" or "Capra"), filed a motion to dismiss asserting the Petition is untimely. (Mot. to Dismiss, ECF Nos. 18, 24-28.)¹ For the reasons set forth below, I recommend that Respondent's motion to dismiss be GRANTED, and the Petition be DENIED.

BACKGROUND

I. Factual Background

On March 8, 2005, Pleasant pleaded guilty to two counts of murder in the second degree in the Supreme Court of the State of New York, New York County. (Pet., ECF No. 2, at 1-2; see also Affirm. in Supp. of Def's. Mot. to Dismiss ("Morales Affirm."), ECF No. 25, at 2-3.) On March22, 2005, consistent with his plea, he was sentenced to two concurrent indeterminate prison terms of twenty-one years to life. (Id.)

II. Direct Appeal

On September 8, 2006, Pleasant's appellate attorney, Paul Angioletti, filed a so-called Anders brief,² which was twenty-one pages in length, seeking to withdraw as counsel on the basis that there were no nonfrivolous issues to raise on direct appeal. (Anders Appeal Brief, Morales Affirm. Ex. C.) On January 4, 2007, the New York Supreme Court Appellate Division, First Department ("Appellate Division") granted the motion to withdraw and affirmed Pleasant's conviction, saying it "agree[d] with appellant's assigned counsel that there are no non-frivolous points which could be raised on this appeal." (Decision and Order, Morales Affirm. Ex. D.) In its decision, the Appellate Division provided instructions for how to apply for leave to appeal its decision to the New York State Court of Appeals ("Court of Appeals"). (Id.)

Despite having been notified of his ability to seek leave to appeal and provided instructions for how to do so, Pleasant does not appear to have sought leave to appeal the Appellate Division's decision to the Court of Appeals.³ Therefore, his conviction became final onFebruary 3, 2007, upon expiration of the thirty-day period he had to seek leave to appeal to the Court of Appeals.

III. Collateral Attacks

After his direct appeal, Pleasant filed four post-conviction motions: three motions to vacate his conviction under New York Criminal Procedure Law § 440.10 ("Section 440"), and one motion for writ of error coram nobis.

a. First 440 Motion

Acting pro se, Pleasant filed his first motion to vacate his conviction under Section 440 ("Section 440 Motion I") on December 27, 2007, claiming that his guilty plea was not entered knowingly and voluntarily (due to having taken medication), and that he was denied effective assistance of trial counsel because his attorney had coerced him into pleading guilty. (Section 440 Mot. I, Morales Affirm. Ex. E.) Justice White denied Pleasant's motion on the merits on February 11, 2008, finding that "[t]he medical records defendant submits as exhibits in this motion do not establish that he received any medication on the date he pleaded guilty," and that he pleaded guilty "voluntarily, knowingly, and intelligently." (Decision and Order, Morales Affirm. Ex. F.) Justice White also found that Pleasant's counsel was not ineffective. (Id.) The Appellate Division denied leave to appeal on April 17, 2008. (Cert. Den. Leave, Morales Affirm. Ex. G.)

On March 14, 2008, Pleasant moved for leave to reargue the motion. (See Section 440 Mot. II, Morales Affirm. Ex. O at 5; see also Cert. Den. Leave, Morales Affirm. Ex. I.) On May 16, 2008, Justice White granted Pleasant's motion to reargue, but adhered to her original decision denying the motion. (See Section 440 Mot. II, Morales Affirm. Ex. O at 5.) Pleasant sought leave to appeal to the Appellate Division, pursuant to New York Criminal Procedure Law § 460.15. TheAppellate Division denied permission to appeal on via certificate dated August 8, 2008 and entered August 26, 2008. (Cert. Den. Leave, Morales Affirm. Ex. I.)

Pleasant moved to re-argue a second time, and Justice White re-affirmed her ruling on June 9, 2008. (See Section 440 Mot. II, Morales Affirm. Ex. O at 5.)

On August 29, 2008, Pleasant moved to re-argue a third time. (Morales Affirm. at 5.) Justice White adhered again to her original denial of the motion. (Id.) The Appellate Division denied leave to appeal on November 7, 2008. (Cert. Den. Leave, Morales Affirm. Ex. J.) Pleasant moved to reargue the Appellate Division's denial dated November 7, 2008, which the Appellate Division denied on January 7, 2009. (Decision, Morales Affirm. Ex. K.)

On October 27, 2008, Justice White denied a fourth motion to re-argue. (Section 440 Mot. II, Morales Affirm. Ex. O at 5; Morales Affirm. at 5.)

Pleasant sought leave to appeal the Appellate Division's January 7, 2009 order denying his third motion to reargue to the Court of Appeals, which dismissed his application for a certificate to appeal on April 20, 2009 because "the order[] sought to be appealed is not appealable . . ." under New York's Criminal Procedure Law § 450.90(I). (Cert. Dismissing Appl., Morales Affirm. Ex. N.)

b. Second 440 Motion

Petitioner filed a second motion to vacate his conviction pursuant to Section 440 on May 17, 2010 ("Section 440 Motion II"), this time represented by counsel, arguing again that his plea was not knowing, voluntary and intelligent; that the prosecution engaged in certain conductwhich resulted in violation of Brady v. Maryland⁴ ("Brady violation"); and that trial counsel was ineffective. (Section 440 Mot. II, Morales Affirm Ex. O.) In a seven-page opinion, Justice White denied the motion on December 6, 2010, on the grounds that the claims were procedurally barred and that the claims lacked merit. (Decision and Order, Morales Affirm. Ex. Q.) On February 22, 2011, the Appellate Division denied leave to appeal. (Cert. Den. Leave, Morales Affirm. Ex. R.) The record does not reflect that Pleasant sought leave to appeal before the Court of Appeals.

c. Writ of Error Coram Nobis

Pleasant, again represented by counsel, moved for a writ of error coram nobis on December 20, 2011, alleging ineffective assistance of appellate counsel, for filing an Anders brief and failing to raise certain issues on direct appeal. (Mot. for Writ of Error Coram Nobis, Morales Affirm. Ex. S.) On March 8, 2012, the Appellate Division denied Pleasant's coram nobis motion. (Order, Morales Affirm. Ex. T.) On August 20, 2012, the Court of Appeals denied leave to appeal. (Order Den. Leave, Morales Affirm. Ex. U.) On August 22, 2012, Pleasant moved the Court of Appeals for reconsideration of the denial of his application for leave. (Letter, Morales Affirm. Ex. V.) The Court of Appeals denied the motion for reconsideration on March 25, 2013. (Order Den. Recons., Morales Affirm. Ex. Y.)

d. Third 440 Motion

Acting pro se, Pleasant filed a third motion to vacate his conviction under Section 440 ("Section 440 Motion III") on September 20, 2012, claiming: (1) Brady violations; (2) the existence of newly discovered evidence which would have changed the outcome of his case; (3) ineffectiveassistance of trial counsel; (4) that his plea was not knowing and voluntary; and (5) that his arrest was a violation of New York state law. (Section 440 Mot. III, Morales Affirm. Ex. W.) On March 18, 2013, Justice White denied his motion on the merits in an eleven-page decision. (Decision and Order, Morales Affirm. Ex. X.) The Appellate Division denied leave to appeal via Certificate dated August 15, 2013 and entered October 1, 2013. (Cert. Den. Leave, Morales Affirm. Ex. Z.) On April 22, 2014, the Appellate Division denied Pleasant's motion for reargument of its decision. (Cert. Den. Reargument, Morales Affirm. Ex. DD.) On January 28, 2014, the Court of Appeals denied leave to appeal the Appellate Division's denial of leave, "because the order sought to be appealed from is not appealable under CPL 450.90(I)." (Order Dismissing Leave, Morales Affirm. Ex. BB.)

Pleasant moved for Justice White to reconsider her denial on November 6, 2013. (Mot. for Recons., Morales Affirm. Ex. AA.) On March 12, 2014 Justice White granted his motion for reconsideration, but again denied the motion. (Decision and Order, Morales Affirm. Ex. CC.) Via Certificate dated July 15, 2014 and entered August 7, 2014, the Appellate Division denied leave to appeal Justice White's denial dated March 12, 2014. (Cert. Den. Leave, Morales Affirm. Ex. FF.) Pleasant sought leave to appeal of the Appellate Division's denial to the Court of Appeals, which denied leave to appeal on December 15, 2014 "because the order sought to be appealed from is not appealable under CPL 450.90(I)." (Cert. Den. Leave, Morales Affirm. Ex. GG.)

In December 2014, Pleasant moved for a reconsideration for a second time of Justice White's denial of his motion. (Mot. for Recons., Morales Affirm. Ex. HH.) His motion was denied on August 14, 2015. (Decision and Order, Morales Affirm Ex. II.) On October 2, 2015, Pleasant sought reconsideration of the trial court's August 14, 2015 denial of his motion forreconsideration. (Morales Affirm. Ex. JJ.) His motion was denied on February 23, 2016. (Order, Morales Affirm. Ex. KK.) Pleasant sought leave to appeal the February 23, 2016 decision, but was denied by the Appellate Division via Certificate dated June 7, 2016 and entered June 28, 2016. (Cert. Den. Leave, Morales Affirm. Ex. LL.) Pleasant sought leave to appeal to the Court of Appeals the Appellate Division's June 28, 2016 order, but the Court of Appeals denied permission to appeal on October 24, 2016 "because the order sought to be appealed from is not appealable...." (Order...