The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
Petitioner, Shane Cossey ("Cossey"), acting pro se, seeks
relief pursuant to 28 U.S.C. § 2254, alleging that his conviction
in County Court, Yates County, State of New York, was
unconstitutionally obtained, as set forth more precisely in the
petition. He is specifically objecting the sentence imposed, as
it relates to his federal sentence. By Order filed March 7, 2005,
Cossey was directed to file information regarding why the
petition is not untimely under 28 U.S.C. § 2244(d)(1), which
imposes a one-year statute of limitations on the filing of § 2254
habeas petitions. The limitations period is counted from
(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 [United
States] 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), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA" or the "Act"),
Pub.L. No. 104-132, 110 Stat. 1214, effective April 24, 1996.
On March 16, 2005, petitioner filed his response. The Court has
examined the response and finds that the petition is barred by
the limitation of time established by 28 U.S.C. § 2244.
Specifically, petitioner's judgment became final and his time
expired to seek direct review of his conviction on September 27,
2001, "when his time expired to seek direct review by writ of
certiorari to the United States Supreme Court." Walker v.
Artuz, 208 F.3d 357, 358 (2d Cir. 2000). Petitioner did not file
this habeas corpus petition until June 14, 2004; long after the
expiration of the one year statute of limitations.
Petitioner's explanation does not provide any information which
would permit the Court to extend the limitations period beyond
the one year. While petitioner does indicate that he attempted to
file a collateral attack on his conviction, he provides no
information regarding when and where he sent the papers.*fn1
The one-year period of limitations on a petition for habeas
corpus is tolled only for "[t]he time during which a properly
filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claims is
pending." 28 U.S.C. § 2244(d)(2). Here, petitioner's actions are
not sufficient to toll the time, and his delay in filing the
petition is fatal to his petition. Further, petitioner has not identified any "extraordinary
circumstance" which made it impossible to file his petition
within the one-year time period. He indicates that he was aware
of problems with his sentences, and has included a copy of a
letter from his counsel dated November 13, 2001 regarding his
request for transcripts. Thus, it appears that Cossey was aware
of the facts necessary to file the petition, and makes no claim
that he was otherwise prevented. Therefore, Cossey has failed to
provide a basis for the Court to extend the limitations period
beyond the one year. See Smith v. McGinnis, 208 F.3d 13, 17 (2d
Cir.) ("In order to equitably toll the one-year period of
limitations, [a petitioner] must show that extraordinary
circumstances prevented him from filing his petition on time. . . .
In addition, the party seeking equitable tolling must have
acted with reasonable diligence throughout the period he seeks to
toll"), cert. denied, 531 U.S. 840 (2000); see also Johnson v.
Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (noting that the
Second Circuit has applied equitable tolling doctrine "as a
matter of fairness where a plaintiff has been prevented in some
extraordinary way from exercising his rights") (internal
quotation marks and citation omitted).
The burden is on the petitioner to demonstrate that he has met
the high standard required before the Court may consider applying
equitable tolling to his situation. Hizbullahankhamon v.
Walker, 255 F.3d 65, 75 (2d Cir. 2001) ("[P]etitioner [must]
`demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and
the lateness of his filing, a demonstration that cannot be made
if the petitioner, acting with reasonable diligence, could have
filed on time notwithstanding the extraordinary circumstances.'")
(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.
2000)), cert. denied, 536 U.S. 925 (2002). Because the Court
finds that petitioner has failed to meet this high standard, the Court is
constrained to apply the statute as written and dismiss the
motion as untimely.
The petition is hereby dismissed pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States District
Courts. In addition, because the issues raised here are not the
type of issues that a court could resolve in a different manner,
and because these issues are not debatable among jurists of
reason, the Court concludes that petitioner has failed to make a
substantial showing of the denial of a constitutional right,
28 U.S.C. § 2253(c)(2), and accordingly the Court denies a
certificate of appealability.
The Court also hereby certifies, pursuant to
28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken
in good faith and therefore denies leave to appeal as a poor
person. Coppedge v. United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk's
Office, United States District Court, Western District of New
York, within thirty (30) days of the date of judgment in this
action. Requests to proceed on appeal as a poor person must be
filed with the United States Court of Appeals for the Second
Circuit in accordance with the requirements of Rule 24 of the
Federal Rules of Appellate Procedure.
IT HEREBY IS ORDERED, that the petition is dismissed;
FURTHER, that a certificate of appealability is denied; and
FURTHER, that leave to appeal as a poor person is denied.