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United States District Court, Southern District of New York

September 11, 2003


The opinion of the court was delivered by: Michael Mukasey, Chief Judge, District


Carlos Hernandez petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000), challenging his 1994 state court judgment of conviction for three counts of criminal sale of a controlled substance. In a Report and Recommendation dated May 23, 2002 ("Report"), Magistrate Judge Henry Pitman recommended that the petition be dismissed as time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For the reasons set forth below, the Report is adopted with modifications, the writ is denied, and the petition is dismissed as time-barred.


On April 7, 1994, Hernandez pleaded guilty to three counts of criminal sale of a controlled substance. (Report at 2) On April 18, 1994, he was sentenced pursuant to a plea agreement to concurrent sentences of one to three years' imprisonment. (Id) Petitioner served this sentence and was discharged from parole on April 18, 1997. (Id) He never filed a direct appeal of his 1994 conviction. (Id. at 3) Although Hernandez claims that, despite the guilty plea, he asked his attorney to file such an appeal (Hernandez Aff. of 8/15/97 ¶ 6), the attorney says that no such request was made. (Salaway Aff. ¶¶ 7-8)

After his discharge, Hernandez was convicted again, and [ Page 2]

the 1994 conviction was apparently used to enhance his second sentence. (Id. at 2-3) He is now serving the sentence for this later conviction. (Id. at 2)

On August 15, 1997, Hernandez moved for a writ of coram nobis, pursuant to N.Y. Grim. Proc. Law § 440.10 (McKinney 2003), to vacate his 1994 conviction. (Report at 3) His motion was denied on November 14, 1997; the Appellate Division, First Department, denied leave to appeal on May 5, 1998. (Id)

On June 30, 1999, Hernandez filed the present petition, dated May 1, 1999. (Id) He seeks to vacate his 1994 judgment of conviction on the ground that it was obtained in violation of his constitutional rights to effective assistance of counsel and due process. (Id) Magistrate Judge Pitman has recommended in his Report that the petition be dismissed as time-barred. Petitioner objects to all relevant aspects of the Report and requests an evidentiary hearing "to fashion out what relief is available." (Hernandez Objection at 5) Accordingly, I must conduct de novo review. See 28 U.S.C. § 636(b)(1).


Respondent has made two procedural objections to Hernandez's petition for habeas corpus. First, respondent argues that petitioner is ineligible for habeas relief based on his 1994 conviction because he is no longer in custody for that [ Page 3]

conviction, having already served his sentence. Second, respondent argues that Hernandez's application for habeas relief is time-barred.

Hernandez has satisfied the "in custody" requirement of § 2254 even though he is challenging an expired sentence. To be eligible for a writ of habeas corpus, a prisoner must be in custody in violation of the Constitution or other federal law. See 28 U.S.C. § 2254(a). A prisoner is considered "in custody" for the purposes of § 2254(a) if he is currently serving a sentence that has been enhanced as a result of the allegedly invalid prior conviction. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401-02 (2001). Under these circumstances, a habeas corpus petition can be construed as challenging the prisoner's current sentence, as enhanced by the allegedly invalid prior conviction. Id. Hernandez's petition satisfies § 2254(a)'s custody requirement because it challenges the enhancement of his current sentence by the 1994 conviction he seeks to invalidate.

Although Hernandez satisfies the "in custody" requirement of § 2254(a), his petition must be denied as time-barred because his 1994 conviction has become conclusively valid. A state conviction may be regarded as conclusively valid if the defendant did not pursue, or pursued unsuccessfully, direct or collateral review to attack that conviction when such remedies [ Page 4]

were available. Coss, 532 U.S. at 403. Once a prior state conviction has become conclusively valid, a defendant generally may not argue in a § 2254 petition that a later enhanced sentence that results from the prior conviction is invalid because the prior conviction was unconstitutionally obtained. Id. at 403-04. There is an exception to this general rule if the prior conviction was obtained following a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwriaht, 372 U.S. 335 (1963).*fn1 Coss, 532 U.S. at 404.

Hernandez's 1994 conviction has become conclusively valid because he did not successfully pursue direct or collateral review before those remedies became time-barred. His time for seeking direct review expired on May 18, 1994, after he failed to file a notice of appeal within 30 days of entry of judgment. (Report at 7) N.Y. Crim. Proc. Law § 460.10(a). Hernandez did [ Page 5]

pursue state collateral review of his conviction by filing a coram nobis petition on August 15, 1997, pursuant to N.Y. Grim. Proc. Law § 440.10, but that motion was denied, as was leave to appeal. (Report at 3)

Because Hernandez did not file a direct appeal and mounted an unsuccessful state collateral attack, his 1994 conviction has become conclusively valid under Coss unless federal habeas relief is still available to challenge it. However, the one-year period of limitations imposed by the AEDPA has expired, and so Hernandez's 1994 conviction is no longer open to attack by a federal habeas petition and thus is conclusively valid.

Under the AEDPA, a petitioner is required to file a habeas corpus petition within one year from the date on which the judgment of his conviction becomes final.*fn2 28 U.S.C. § 2244(d)(1)(A). Hernandez's judgment of conviction became final on May 18, 1994, when the time for seeking direct review expired. See Id. Because the AEDPA did not go into effect until April 24, [ Page 6]

1996, the Second Circuit has determined that prisoners whose convictions became final before that date are entitled to a one-year "grace period" in which to file petitions. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Therefore, Hernandez had until April 24, 1997, to file a federal habeas petition to challenge his 1994 conviction. See Id.

Hernandez did not file the instant petition until May 1, 1999, but he argues that his one-year filing period restarted on May 5, 1998, when he was denied leave to appeal the coram nobis decision. As authority, he cites 28 U.S.C. § 2244(d)(2), which provides that the statutory limitation is tolled while "a properly-filed application for State post-conviction or other collateral review . . . is pending." Id. See also Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999), affd, 531 U.S. 4 (2000) (holding that this tolling provision applies to the one-year grace period for pre-AEDPA convictions). However, this tolling provision does not reset the date from which the one-year limit begins to run. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). In this case, Hernandez did not file his coram nobis motion until August 15, 1997, almost four months after the one-year grace period expired on April 24, 1997. Because Hernandez did not commence his state collateral attack until after the one-year period for challenging his 1994 conviction had expired, he is not protected by the statutory tolling provision. See Id. [ Page 7]

Hernandez also has not demonstrated "rare and exceptional circumstances" that warrant equitable tolling of the one-year filing period for his 1994 conviction. Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001), cert. denied, 535 U.S. 1017 (2002). To qualify for equitable tolling, peititoner must show that "extraordinary circumstances" prevented him from filing his petition within the one-year limit, and that he acted with "reasonable diligence" throughout the period he seeks to toll. Id.

Hernandez has asserted repeatedly that his attorney ignored his request to file a direct appeal of the 1994 judgment of conviction. (Hernandez Pet. at 6) However, Hernandez has offered no explanation for his own failure to file by April 24, 1997, a petition challenging that conviction. In his initial habeas petition, Hernandez cited Walker v. Jastremski, 159 F.3d 117 (2d Cir. 1998), for the proposition that, as an incarcerated pro se litigant, he is entitled to equitable tolling for any delays caused by his inability personally to supervise the judicial process. (Hernandez Pet. at 4) Although this principle might apply to delays after Hernandez gave his habeas petition to prison officials to mail, the petition was dated May 1, 1999, and Hernandez has offered no explanation for his failure to prepare his petition by April 24, 1997. Therefore, the one-year filing period was not equitably tolled, and Hernandez's application for [ Page 8]

federal habeas corpus relief for his 1994 conviction is time-barred.

Because Hernandez did not successfully challenge his 1994 conviction by direct or collateral appeal before it became final, that conviction is conclusively valid and may not serve as the basis for his present challenge to his later enhanced sentence. Coss, 532 U.S. at 403-04. There is a small exception to this general rule where there was a failure to appoint counsel in the earlier case in violation of the defendant's Sixth Amendment rights. Id. at 404. Here, Hernandez appears to allege two Sixth Amendment violations: first, that counsel was absent from the courtroom when petitioner made his guilty plea, and second, that counsel was not present during plea negotiations.*fn3 (Hernandez Reply Br. at 6, 8)

The first alleged violation is without basis; the transcript from Hernandez's guilty plea of April 7, 1994, plainly shows that his attorney, Kenneth Salaway, was present for the guilty plea. (Resp't Aff. in Opp'n at Ex. B)

Hernandez's second claim — that he lacked counsel [ Page 9]

during plea negotiations — also fails even if it is factually accurate, which is unclear from the record. So long as a petitioner's guilty plea was knowing and voluntary, that petitioner has waived all non-jurisdictional defects that may have occurred in prior proceedings. United States v. Coffin, 76 F.3d 494, 496 (2d Cir. 1996); Tollett v. Henderson, 411 U.S. 258, 267 (1973). The transcript of Hernandez's guilty plea reveals that the trial judge questioned Hernandez sufficiently to ensure that his plea was knowing and voluntary. (Resp't Aff. in Opp'n at Ex. B) Cf. Fed. R. Crim. P. 11(b). Therefore, Hernandez has waived any Sixth Amendment violations that may have occurred during plea negotiations.

As the above discussion indicates, Hernandez was not deprived of counsel in violation of the Sixth Amendment, and thus he does not fall within the narrow exception to Coss. Accordingly, Hernandez is barred from challenging his current sentence on the ground that it was enhanced by an invalid prior conviction, because his 1994 conviction has become conclusively valid. [ Page 10]

For the reasons stated above, I agree with the Report's conclusion that Hernandez's petition is time-barred. The Report is modified insofar as it did not discuss whether there was a failure to appoint counsel for Hernandez during the 1994 proceedings. The writ is denied, and the petition is dismissed. Furthermore, a certificate of appealability will not issue because no jurist of reason would dispute the ruling that Hernandez's petition is time-barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).


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