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YEKIMOFF v. NEW YORK STATE DIVISION OF PAROLE

United States District Court, S.D. New York


July 8, 2004.

SERGEY YEKIMOFF, Petitioner,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent.

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

REPORT AND RECOMMENDATION TO THE HONORABLE BARBARA S. JONES, District Judge.
Pro se petitioner Sergey Yekimoff ("Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a guilty plea, Petitioner was convicted of one count of grand larceny in the second degree. (See Petition for Writ of Habeas Corpus, filed Sept. 9, 2002*fn1 ("Pet."), at 1.) He was sentenced to six months in prison and five years probation. (See id.) On October 12, 1999, the date of sentencing, Petitioner was released from prison for time served, and began his probationary period. (See id.; Affidavit in Support of Motion to Vacate, dated July 16, 2001, Pet. Exh. at 22.)*fn2 On September 4, 2001, he was re-sentenced to prison for violating the terms of his probation. (See Pet. at 1.) Petitioner was again released from prison on July 1, 2002. (See id. at 3.)

  In his habeas petition, Petitioner challenged both his conviction and subsequent parole proceedings. Petitioner's claim regarding parole, however, is no longer before this Court, as that claim has been dismissed as moot.*fn3 Thus, of the claims asserted in the petition, only those attacking Petitioner's underlying conviction remain to be decided. Respondent New York State Division of Parole ("Respondent") argues that those claims are time-barred under the governing statute of limitations. For the reasons set forth below, I recommend that the claims challenging Petitioner's conviction be dismissed as untimely.

  FACTUAL BACKGROUND

  On September 28, 1999, Petitioner pleaded guilty to grand larceny in the second degree, pursuant to New York Penal Law § 155.40(1), for defrauding an elderly acquaintance of approximately $180,000.00. (See A.G. Resp., Ex. B at 2, Ex. C at 4.)*fn4 On October 12, 1999, Petitioner was sentenced to six months incarceration, followed by five years probation. (See id., Ex. C at 2-5, Ex. K at 1.) In addition, Petitioner entered into a restitution agreement and signed a confession of judgment. (See id., Ex. C at 2 & 6, Ex E.) The agreement called for Petitioner to make a payment of $10,000.00 at the time of sentencing, and $500.00 per month thereafter. (See id., Ex. C at 2-3 & 6, Ex. E.)

  Petitioner was released on his sentencing date based on time served, and began the required period of probation. He did not, however, comply with the terms of his probation, in that, among other things, he left the country and lived in Europe and Canada for a period of time. (See A.G. Resp., Ex. R at 3, Ex. S at 2-3.) As a result, he was arrested upon his return to his residence in New Hampshire. (See id., Ex. F, Ex. H at 2-3, Ex. S at 2-3.) Because Petitioner did not comply with the terms of his probation, he was re-sentenced, on September 4, 2001, to an indeterminate sentence of one to three years incarceration, nunc pro tunc as of December 14, 2000, with credit given for the six months he served in prison based on his guilty plea. (See id., Ex. L; Pet. at 1.) Petitioner was released from prison on July 1, 2002 (see Pet. at 3), and was then discharged from parole on July 1, 2003, for having served his maximum sentence. See Yekimoff v. New York State Div. of Parole, No. 02 Civ. 8710 (BSJ), 2003 WL 22305171, at * 1 (S.D.N.Y. Oct. 8, 2003).

  PROCEDURAL HISTORY

  Petitioner did not take a direct appeal from his conviction for larceny, allegedly because his attorney erroneously told him that, by pleading guilty, he had waived his right to appeal. (See Pet. at 1; Affidavit in Support of Motion to Vacate, Pet. Exh. at 22.) Presumably upon learning that, in fact, he had not waived his right to appeal, Petitioner sought leave to extend the time to appeal. (See Memorandum of Law in Support of Habeas Petition, filed Apr. 2, 2003 ("4/2/03 Pet. Mem."), at 3.) That request was denied by the Appellate Division, First Department, on May 29, 2001. (See id. at 5.) Thereafter, Petitioner undertook several unsuccessful collateral challenges to his conviction and parole status, followed by the filing of the instant habeas petition on September 9, 2002.

  Through the petition, Petitioner asserts the following claims challenging his conviction: (1) that he was denied the right to proceed pro se during the underlying criminal proceedings; (2) that his indictment was constitutionally defective under the Fifth, Sixth, and Fourteenth Amendments; (3) that he received ineffective assistance of trial counsel with respect to proceedings leading up to his guilty plea; (4) that his due process rights were violated because his plea waiver was "unintelligent" and his plea was "constitutionally invalid"; and (5) that he received ineffective assistance of appellate counsel when his attorney failed to file a requested appeal and incorrectly informed Petitioner that he had waived his right to appeal. (See Pet. at 3-6.)

  DISCUSSION

  Respondent argues that all of Petitioner's remaining claims are barred by the applicable statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d) ("AEDPA"). (See Memorandum in Support of Motion to Dismiss, filed Mar. 24, 2003 ("D.A. Mem.").)*fn5 AEDPA provides that a writ of habeas corpus must be filed within one year of a certain date, in this case the later of the date upon which Petitioner's conviction became final, 28 U.S.C. § 2244(d)(1)(A), or the date upon which the factual predicate to the claim could have been discovered through due diligence, 28 U.S.C. § 2244(d)(1)(D). Respondent asserts that Section 2244(d)(1)(A) is the applicable section, meaning that Petitioner had until November 12, 2000, one year after the date upon which Petitioner's conviction became final, to file his petition. (See D.A. Mem. at 2-3.) As the petition was not filed until September 9, 2002, Respondent argues that the petition is time-barred. (See id. at 2-4.) Petitioner asserts three arguments in response, which will be addressed here in turn.

  I. RELEVANCE OF PETITIONER'S RE-SENTENCING TO THE STATUTE OF LIMITATIONS CALCULATION

  Petitioner's first two arguments offer two different rationales as to why the statutory limitations period should not run from November 12, 1999, when his conviction became final, but rather from October 5, 2001, when his re-sentencing allegedly became final. (See 4/2/03 Pet. Mem. at 2-3.) If, as Petitioner contends, the October 2001 date were the correct date from which to calculate the limitations period, then his petition would be timely. Neither of Petitioner's arguments, however, are persuasive.

  A. Petitioner's Claims Do Not Arise From the Re-Sentencing.

  First, Petitioner relies on Hepburn v. Moore, 215 F.3d 1208 (11th Cir. 2000), in which the Eleventh Circuit held that, in certain cases, the limitations period should run from the date a petitioner's re-sentencing order becomes final. In Hepburn, however, the petitioner's claims related directly to the re-sentencing proceeding (specifically, the petitioner claimed a denial of counsel at that proceeding), and did not arise from the original judgment. Hepburn, therefore, stands for the proposition that "AEDPA cannot be interpreted to require a prisoner to raise claims before they arise, including claims that originate in the context of resentencing." Hepburn, 215 F.3d at 1209.

  Here, despite Petitioner's unsupported assertion that the "issues presented within the instant petition are compounded and intertwined at both [the] original sentencing and resentencing" (4/2/03 Pet. Mem. at 3), the asserted bases for all of Petitioner's habeas claims existed prior to his re-sentencing. Therefore, the reasoning of Hepburn does not support the use of the date upon which the re-sentencing order became final as the date from which the limitations period should run in this case, and Petitioner's argument on that ground should be rejected.

  B. Petitioner Has Never Previously Raised, Nor Has He Demonstrated, That His Original Sentence Was Unlawful, Nor Would This Alter the Statute of Limitations Calculation.

  Petitioner also argues, apparently for the first time, that his original sentence was "unauthorized under the New York statutory scheme." (Supplemental Memorandum in Support of Petition, filed Apr. 12, 2004 ("4/12/03 Pet. Mem."), at 1.) According to Petitioner, his re-sentencing "de facto voided" that original sentence, making the re-sentencing date — or, rather, the date when the re-sentencing became final — the only relevant date from which to measure the applicable limitations period. This argument, however, is undermined by the fact that Petitioner has never argued before the state courts that his original sentence was contrary to New York law, nor has there ever been a finding to that effect. The record shows, in fact, that Petitioner was not re-sentenced because his prior sentence was found to be in error, but rather because he failed to comply with the terms of his probation.

  Further, even if, as Petitioner argues, his first sentence was excessive under the relevant sentencing statute (see id. at 2-3), he has offered no authority for the proposition that this fact would vitiate, for statute of limitations purposes, the date when his original conviction became final. Indeed, an excessive sentence would not, in any event, void a judgment of conviction, and it is the judgment, not the sentence, that triggers the limitations period. See 28 U.S.C. § 2244(d)(1)(A). For all of these reasons, Petitioner's argument is without merit.

  II. COMMENCEMENT OF THE LIMITATIONS PERIOD BASED ON EXISTENCE OF FACTUAL PREDICATE

  Petitioner's third argument is that he is entitled to the benefit of "`due diligence' tolling," because, according to Petitioner, he could not have immediately discovered the factual predicate of his claims through due diligence. (See 4/2/03 Pet. Mem. at 4-7, citing 28 U.S.C. § 2244(d)(1)(D).) Petitioner, however, cannot prevail on this argument, given the nature of his claims and the particular circumstances presented.

  A. Applicability of Section 2244(d)(1)(D) To Any of Petitioner's Claims That Arose Prior To His Guilty Plea

  AEDPA Section 2244(d)(1)(D), which allows the limitations period to be measured from the date on which the factual predicate of the claim could have been discovered through due diligence, can only apply to a claim for which the factual predicate is neither known nor reasonably discoverable at the time the petitioner's judgment of conviction becomes final. Here, Petitioner makes no argument whatsoever to suggest that, as of the time his conviction became final, he could not have known the bases for his claims that he was denied the right to proceed pro se in pre-trial proceedings, that his indictment was defective, and that he received ineffective assistance of trial counsel. Because the grounds for these claims existed at and before the date of Petitioner's guilty plea, Section 2244(d)(1)(D) is simply inapplicable to these claims. See, e.g., Celaj v. Artuz, No. 98 Civ. 7365 (RPP), 2001 WL 736782, at *7 (S.D.N.Y. June 28, 2001) (where the grounds for the habeas claims existed at and before trial, 28 U.S.C. § 2244(d)(1)(D) was held inapplicable). Indeed, Petitioner impliedly concedes that Section 2244(d)(1)(D) does not operate to save these claims, as he only asserts "due diligence dates" with respect to his other habeas claims. (See 4/2/03 Pet. Mem. at 4.) For these reasons, Petitioner's claims of denial of the right to self-representation, defective indictment, and ineffective assistance of trial counsel should be dismissed as time-barred.*fn6

  B. Applicability of Section 2244(d)(1)(D) to Petitioner's Claim That His Plea Was Invalid

  Although his petition is not entirely clear, Petitioner appears to claim that his plea was invalid or unconstitutional because the government later failed to honor its supposed promise that, if Petitioner pleaded guilty, he would be able to serve a term of probation in his home state of New Hampshire. (See Pet. at 5; 4/2/03 Pet. Mem. at 16-18.) Petitioner characterizes this alleged promise as a "precondition" to his plea, and argues that he is entitled to habeas relief either because the government ignored this precondition or because Petitioner's own attorney "deliberately or incompetently overlooked [the] prosecution's deceit" regarding the precondition. (Pet. at 5.)*fn7 With respect to the statute of limitations, Petitioner argues that this claim is timely because he did not learn of the factual predicate, presumably that the purported precondition would not be honored, until about August 1, 2001, "during [the] pendency of [the] motion to vacate." (Id.; see also 4/2/03 Pet. Mem. at 4.)

  The relevant question for analyzing this argument is whether, in the exercise of due diligence, a person in Petitioner's position could have learned of the factual predicate for this claim prior to June 24, 2000, which is the date one year prior to Petitioner's filing of his habeas petition, taking into account any tolling resulting from the pendency of state court proceedings.*fn8 See Wims v. United States, 225 F.3d 186, 189 (2d Cir. 2000) (stating that a court may determine a petition's timeliness by assessing whether the asserted claim accrued no earlier than the date one year prior to the date upon which the habeas petition was filed); see also Rodriguez v. People of the State of New York, No. 01 Civ. 9374 (KMW) (AJP), 2003 WL 289598 (S.D.N.Y. Feb. 11, 2003) (working backward from the date the petition was filed, excluding any period for which the statute was tolled by the pendency of collateral motions, to determine whether the factual predicate to the claim at issue should have been discovered by the date one year before the filing date).

  Here, it seems irrefutable that, despite Petitioner's assertion that he could not have discovered his claim until August 2001, he, in fact, could have learned of the factual predicate for the claim well before then, and, indeed, before the relevant date of June 24, 2000. Petitioner himself points out in his submissions to the state court that he was expressly informed in May 2000 that he was being required to leave New Hampshire and complete his probation term in the State of New York. (See Affidavit in Support of Application Under CPL 460.15, dated Sept. 7, 2001, Pet. Exh. at 58.) Petitioner has not explained why it then purportedly took him more than a year to discover the facts necessary to present his claim. If Petitioner believed that the May 2000 directive to return to New York was improper, he should have diligently investigated the matter at that time. Instead, Petitioner fled the country, in obvious violation of his probation terms. (See Supplemental Affidavit in Support of Motion to Vacate, dated Aug. 4, 2001, Pet. Exh. at 27.)

  It is Petitioner's burden to demonstrate why he was unable to discover the factual predicate of his claim before the date asserted. See Duamutef v. Mazzuca, No. 01 Civ. 2553 (WHP) (GWG), 2002 WL 413812, at *8-9 (S.D.N.Y. Mar. 15, 2002) (indicating that, where the factual predicate to a claim was in existence for some time, the petitioner has the obligation to explain why he did not take action to discover the predicate earlier); see also Sorce v. Artuz, 73 F. Supp.2d 292, 298 (S.D.N.Y. 1999) (similar). As Petitioner has failed to demonstrate reasonable diligence in discovering his claim regarding the validity of his plea, the claim should be dismissed as untimely.

  C. Applicability of Section 2244(d)(1)(D) to Petitioner's Claim That He Was Denied Effective Assistance of Appellate Counsel

  Petitioner's claim that he was denied the effective assistance of appellate counsel is based on his allegation that, although he requested that his counsel file a direct appeal on his behalf, his counsel failed to do so, incorrectly informing Petitioner that his right to an appeal had been waived by his guilty plea. (See Pet. at 5-6; Affidavit in Support of Motion to Vacate, Pet. Exh. at 22.)*fn9 Where an attorney does fail to file a notice of appeal despite being instructed to do so, thereby depriving a defendant of the opportunity for appeal, the standard for ineffective assistance of counsel is typically met. See, e.g., Roe v. Flores-Ortega, 528 U.S. 470 (2000).

  In arguing that his claim of ineffective assistance of appellate counsel should be considered timely, Petitioner relies heavily on Wims v. United States, 225 F.3d 186 (2d Cir. 2000), a habeas case challenging federal detention under 28 U.S.C. § 2255. (See 4/2/03 Pet. Mem. at 4-7.) In Wims, the petitioner alleged that his counsel had represented that he would file an appeal from the petitioner's criminal conviction, but never did so. Wims later filed a habeas petition, more than one year after his conviction became final, asserting ineffective assistance of counsel based on his attorney's failure to appeal. See Wims, 225 F.3d at 188. The respondent argued that the petition was time-barred. See id. The Second Circuit found that Section 2255(4), the equivalent of Section 2244(d)(1)(D) in cases involving federal prisoners, applied, and that the limitations period should run from the date when a reasonably*fn10 diligent person in Wims' position would have discovered that his attorney had not actually filed an appeal. See id. at 190. The Second Circuit remanded the case for further factual inquiry, holding that a five-month delay in discovering counsel's failure to file the appeal was not so clearly unreasonable as to constitute per se lack of diligence. Id. at 190-91.

  Under the reasoning of Wims, the relevant inquiry in the instant case is when, in the exercise of reasonable diligence, Petitioner should have discovered that his attorney misled him regarding his right to appeal. This case, however, represents the "flip side" of Wims, in that, in Wims, the petitioner was allegedly led to believe that an appeal would be filed, whereas here, Petitioner was allegedly led to believe that no appeal could be taken. The distinction is significant for statute of limitations purposes because, in a case like Wims, it is easier to understand how a petitioner who believed an appeal had been filed on his behalf could have been lulled into inaction for a period of time, having no reason to suspect, during that time, that the appeal was not going forward. Here, in contrast, Petitioner knew immediately that no appeal was being filed on his behalf, and the only question is when it would have been reasonable for him to learn that, in fact, he had the right to appeal.

  The record in this case suggests that Petitioner had actual notice of his right to appeal as of the date of his sentencing in October 1999, when his attorney apparently provided him with a standard form, explaining that right. (See Fax Letter to Attorney Muraskin from Petitioner, attaching form request for filing of notice of appeal, dated Nov. 7, 1999, Pet. Exh. at 20.) Petitioner asserts that he later filled out the form, indicating that he wished to pursue his right to appeal, and returned the relevant portion of the form to his counsel. (See id.) It was only at that point that his counsel allegedly told him that no appeal would be taken, either because Petitioner had waived his right to appeal, because an appeal would be a "`waste of time,'" or because the attorney had ceased representing Petitioner. (See Petition for Writ of Error Coram Nobis, dated Oct. 24, 2001 ("Coram Nobis Pet."), Pet. Exh. at 61-62.)

  This chronology suggests that, if Petitioner had been reasonably diligent, he would have discovered any misstatement by his attorney long before the relevant date of June 24, 2000. (See supra at 9 and n. 8.) First, any statement by Petitioner's attorney advising Petitioner that he had no right to appeal would have been directly contrary to the form notice Petitioner had already received. Second, the attorney's supposed statements that an appeal would be a "waste of time" (see Coram Nobis Pet., Pet. Exh. at 62), would necessarily imply that an appeal was possible, even if not likely to be successful. Similarly, any statement by counsel that he would not be filing an appeal because he was no longer representing Petitioner (see id.), would also seem contrary to the notion that no appeal was possible. Finally, at the plea hearing, the state court advised Petitioner of important rights he was giving up by virtue of his guilty plea — including the right to trial by jury, the right to confront and cross examine witnesses against him, and the right against self-incrimination — but the court did not similarly advise Petitioner that he was waiving his right to appeal. (See minutes of plea hearing, Pet. Exh. at 78-79.) This, too, should have led Petitioner to investigate any statement by his counsel that Petitioner had given up his right to appeal.

  Although a client is understandably trusting of his counsel, in this case, given the inconsistencies in the information provided to Petitioner — including inconsistencies in counsel's own alleged statements — it appears that Petitioner had every reason to investigate whether he had, in fact, waived his right to appeal. Further, Petitioner has not demonstrated any impediments to his ability to investigate the issue. Indeed, the Court notes that Petitioner had been released from prison immediately upon his original sentencing, and thus no "conditions of his confinement" could have prevented him from diligently investigating the issue. See Wims, 225 F.3d at 190-91.

  Under all of the circumstances presented, it appears that a reasonably diligent person in Petitioner's position would have discovered his attorney's alleged misconduct well before the relevant date of June 24, 2000. Further, Petitioner has not even offered an explanation as to why he could not have discovered the factual predicate of his claim before that date, and thus he has not satisfied his burden to establish that he acted with reasonable diligence. His claim of ineffective assistance of appellate counsel should therefore be dismissed as time-barred.

  CONCLUSION

  For all the foregoing reasons, I recommend that all of Petitioner's remaining claims be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d).

  Though Petitioner has made several submissions to this Court in which he has argued that his petition is timely, and has thus had several opportunities to offer any available justification for his lengthy delay in discovering the factual predicates to his ineffective assistance of appellate counsel claim and invalid plea claim, should Petitioner feel that he can at this time offer actual reasons why the factual predicates could not have been discovered sooner through the exercise of reasonable diligence, he can offer such reasons in an objection to this Report and Recommendation.

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, United States Courthouse, 40 Centre Street, Room 2103, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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