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United States District Court, Southern District of New York

May 8, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


Petitioner pro se Carlos Cantres ("Cantres"), who is currently incarcerated, has moved for habeas relief pursuant to 28 U.S.C. § 2254, alleging that the evidence presented at trial was legally insufficient to support conviction, that the verdict was against the weight of the evidence, and that he received ineffective assistance of counsel. Because it is concluded that Cantres' petition is time-barred, his petition for habeas corpus is denied.

Prior Proceedings

On July 18, 1995, a judgment was rendered following a trial by jury in the Supreme Court of the State of New York, Bronx County, convicting Cantres of murder in the second degree and sentencing him to an indeterminate term of imprisonment of from twenty-five years to life.

On December 30, 1997, the Appellate Division, First Department, affirmed the judgment of conviction, finding that (1) the evidence presented at trial, although circumstantial, was sufficient to support a conviction for murder; and (2) the verdict was not contrary to the weight of evidence. People v. Cantres, 238 A.D.2d 56 (1st Dep't 1997).

In an initial letter dated February 13, 1998, Cantres requested the issuance of a certificate granting leave to appeal to the New York Court of Appeals, enclosing the briefs with his request and stating his intention to file a supplemental letter addressing in greater detail the reasons for granting leave.

In a letter dated March 6, 1998, Cantres through counsel filed his supplemental leave letter.

On April 23, 1998, the New York State Court of Appeals denied Cantres' application for leave to appeal to that court. People v. Cantres, 91 N.Y.2d 971 (1997).

On March 29, 1999, Cantres filed his first petition for a writ of habeas corpus. Cantres v. Kuhlman, 99 Civ. 2940. In it, he asserted that the prosecution failed to prove beyond a reasonable doubt by legally sufficient evidence that he committed the murder for which he had been convicted. He argued specifically that he "has yet to be placed on the eighth floor" where the murder occurred, "there was no direct evidence as to who shot the deceased," and the testimony of two witnesses was conflicting. He also argued that:

[t]he time frame as presented by the People proves [his] point, it was literally impossible for [him] to have went up in the elevator from the eighth floor to the ninth floor, proceed out of the elevator, have a brief discussion with [a witness] then proceed down the hallway to another staircase, proceed down that staircase to where [the deceased] was, place the shotgun in or on his mouth and fire. Then get away without being seen. . . .
In a response dated August 3, 1999, the State argued that certain aspects of Cantres' legal sufficiency claim were unexhausted, owing to his failure to present these particular factual claims to the highest state court. The State also argued that, to the extent his claim was exhausted, it should be denied because the adjudication of the claim in state court did not involve an unreasonable application of federal law as determined by the United States Supreme Court.

In an order dated November 10, 1999, Cantres' motion to dismiss the petition "without prejudice to its renewal after petitioner has exhausted his administrative remedies" was granted.

On June 16, 2000, Cantres moved in New York Supreme Court, Bronx County, to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 on the grounds that his trial counsel was ineffective for his failure to call certain witnesses, properly cross-examine others, and object to the alleged behavior of certain courtroom spectators.

The trial court denied Cantres' motion on the merits on October 23, 2000.

In a decision entered on January 30, 2001, the Appellate Division denied Cantres leave to appeal the denial of the NYCPL § 440 motion.

On May 14, 2001, Cantres filed the instant petition. The case was then assigned to the Honorable Allen G. Schwartz, who had also been assigned the earlier petition. In the petition, Cantres raises two grounds: (1) he was denied the effective assistance of counsel by counsel's failure to present exculpatory evidence, and (2) the evidence was legally insufficient to support a finding of guilty.

On September 24, 2001, the State submitted an affidavit in opposition to the petition. The State argues that the petition is time-barred, that the claim is partially unexhausted, and that neither claim could in any case provide relief as the state courts' resolution of the grounds was not contrary to, nor involved an unreasonable application of, clearly established law as set forth by the United States Supreme Court.

On April 16, 2003, the case was reassigned to this Court. It was considered fully submitted on April 23, 2003.


In addressing Cantres' habeas petition, the Court is mindful that Cantres is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).

I. One Year Time Bar Under § 2244(d)

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. § 2244(d) to impose a one-year period of limitation on habeas corpus applications by persons in custody pursuant to the judgment of a state court. The one-year period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of 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; 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). The appropriate subsection in this case is subsection (A).

The one-year limitations period began running on July 22, 1998, ninety days after the New York Court of Appeals' April 23, 1998 denial of Cantres' leave to appeal, when the time to file a petition for certiorari expired. E.g., Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001).

It is disputed as to whether Cantres is entitled to tolling for the pendency of his first federal habeas petition, from April 5, 1999 to November 10, 1999. While the Supreme Court has explicitly stated that a federal habeas petitioner is not entitled to the automatic tolling provision of § 2244(d)(2) during the pendency of a federal habeas petition, Duncan v. Walker, 533 U.S. 167, 171-72, 121 S.Ct. 2120, 2124 (2001), the Second Circuit has held that equitable tolling may apply. E.g., Rodriguez v. Bennett, 303 F.3d 435, 438 (2d Cir. 2002) ("[T]he fact that § 2244(d)(2) does not cause exclusion of the federal petition's time of pendency does not necessarily exclude the possibility of discretionary tolling on equitable grounds.").

Even if equitable tolling were to apply, however, and the period during which Cantres' first petition was excluded in the district court, his petition would nonetheless be time-barred. Between the finality of conviction on July 22, 1998 and the filing of the first habeas petition on April 5, 1999, 257 days elapsed. Another 219 days elapsed between the dismissal of the first petition on November 10, 1999, and the filing of the state motion on June 16, 2000. Finally, 104 days passed between the denial of leave by the Appellate Division on January 30, 2001 and the filing of this petition on May 14, 2001. The total time expired is 580 days, more than the one-year period provided in AEDPA.*fn1

In any case, even if Cantres' petition were not time-barred, the Court finds persuasive the State's arguments that, under AEDPA's extremely deferential standards to state courts, Cantres has failed to demonstrate that the state courts' denial of the same arguments he presents here were contrary to or involved an unreasonable application of clearly established federal law as set forth by the Supreme Court.


For the foregoing reasons, Cantres' petition is denied.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).

It is so ordered.

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