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Worsham v. West

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


December 22, 2005

ISHMAEL WORSHAM, PETITIONER,
v.
CALVIN WEST, SUPERINTENDENT FOR ELMIRA CORRECTIONAL FACILITY, RESPONDENT.

REPORT AND RECOMMENDATION TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.:

Israel Worsham has submitted a petition for habeas corpus challenging his conviction on kidnapping and related charges. Because the petition is time-barred, I recommend that it be dismissed.

Background

By New York County Indictment No. 1074/01, Ishmael Worsham and co-defendants Damon Vincent and Nishar Bailey were charged with two counts of kidnapping in the first degree and single counts of kidnapping in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree in connection with the kidnapping a 14 year old boy at gunpoint. (Indictment of Ishmael Worsham dated March 7, 2001 submitted with the Petition). The boy was bound with duct tape, blindfolded, and taken in a van to Pennsylvania, where he was held for ransom. (Tr. at 8).*fn1

During that time, numerous telephone calls were made to his family in Manhattan demanding money and drugs for his safe return. (Tr. at 10). Eventually, the petitioner and his accomplices returned the boy to Manhattan for the ransom and were arrested. On January 24, 2002, the petitioner appeared before the Honorable Michael J. Obus in New York State Supreme Court, New York County, and pled guilty to one count of kidnapping in the second degree in full satisfaction of the indictment, in exchange for a promised sentence of twelve years. (Tr. at 5-6). On February 6, 2002, the petitioner was sentenced as agreed. He did not file a notice of appeal. (Affirmation of Ishmael Worsham dated March 17, 2005 ("Worsham Aff."), Exh. C at 1).

On April 22, 2004, Mr. Worsham moved to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 on jurisdictional grounds. After denial of his motion, Mr. Worsham petitioned for a writ of habeas corpus.

Because the district court received Mr. Worsham's petition after the statute of limitation had apparently expired, Chief Judge Michael B. Mukasey directed Mr. Worsham to file an amended petition including any facts that show that "'(i) extraordinary circumstances prevented him from filing his petition on time,' and that '(ii) he acted with reasonable diligence throughout the period he seeks to toll.'" (Order dated Jan. 14, 2005 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)(per curiam)).

Discussion

When a conviction or sentence is challenged under 28 U.S.C. § 2254, a petitioner must satisfy the applicable statute of limitations:

(d)(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(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 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.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. §§ 2244(d)(1)(A)-(D),(2). See Lindh v. Murphy, 521 U.S. 320, 327 (1997)(statute of limitations provision applies "to the general run of habeas cases . . . when those cases had been filed after the date of the Act").

Because the petitioner did not appeal his conviction, which was entered on January 24, 2002, it became final on February 26, 2002, the day after his time to appeal expired. CPL § 460.10(1)(a) (providing 30 days to appeal to the Appellate Division); see Harris v. Artuz, No. 99 Civ. 5019, 2000 WL 358377, at *3 n.6 (S.D.N.Y. April 7, 2000). The time to file the instant petition expired one year later, on February 26, 2003.

The petition is dated November 9, 2004, approximately one year and eight months after that. The petitioner did file a post-conviction motion to vacate his judgment on April 22, 2004. However, this motion was itself filed more than a year after the relevant limitation period had expired. To toll the statute of limitations, the motion must be filed before the statute of limitations for filing a habeas petition expires. Smith, 208 F.3d at 15. If the one-year period has already passed, any post-conviction proceedings filed thereafter will not toll it. See Scarola v. Kelly, No. 99 Civ. 4704, 2001 WL 849449, at *3 (S.D.N.Y. July 27, 2001)("[T]olling extends the time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired.").

Because the statute of limitations has expired, the issue now is whether the petitioner has demonstrated that extraordinary circumstances prevented him from filing a timely petition. To prevail, Mr. Worsham must show that his is a "rare and exceptional circumstance." Smith, 208 F.3d at 17 (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)).

Mr. Worsham makes two arguments claiming ignorance as his justification. First, he argues that his petition should not be time-barred because he "never knew about the time limit on [his] paper work." Second, Mr. Worsham claims that his attorney "never informed [him] that [he] could appeal [his] conviction" and that he "was told in court that waiving [his] right to appeal was part of [his] plea." (Worsham Aff. at 1).

The failure of a petitioner to file a timely petition because of his purported ignorance of the law does not warrant equitable tolling of the statute of limitations applicable to habeas corpus. Velasquez v. United States, 4 F. Supp. 2d 331, 334 (S.D.N.Y. 1998). Additionally, the mistaken belief that habeas corpus relief was barred because state appellate remedies were unavailable does not warrant equitable tolling. Bermudez v. Burge, No. 02 Civ. 7634, 2003 WL 22175999, at *2 (S.D.N.Y. Sept. 22, 2003). Lack of knowledge about the statute of limitations does not qualify as an extraordinary circumstance beyond the petitioner's control.*fn2

Accordingly, Mr. Worsham's habeas petition is time-barred. Conclusion

For the reasons set forth above, I recommend that Mr. Worsham's petition for a writ of habeas corpus be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 62, 6(a), and 6(e)of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, Room 2510, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully submitted,

JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE


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