UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
November 13, 2007
DONALD TAYLOR, PETITIONER,
ANDREW CUOMO, NEW YORK STATE ATTORNEY GENERAL, RESPONDENT.
The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Petitioner Donald Taylor brings this habeas petition pursuant to 28 U.S.C. § 2254. Petitioner asserts that N.Y. Penal Law*fn1 § 265.02(1)*fn2 , Criminal Possession of a Weapon in the Third Degree, to which petitioner pleaded guilty, is unconstitutionally broad to the extent that it renders the statute vague and ambiguous and violates his Second Amendment right to bear arms. For the reasons set forth below, petitioner's application is dismissed.
On August 30, 2002, at approximately 7:00 a.m., pursuant to the execution of a search warrant, the police recovered in petitioner's bedroom a 12 gauge shotgun, a .35 caliber rifle, a .22 caliber rifle, a sawed-off shotgun, and a .38 caliber revolver.
Thereafter, petitioner was charged, by indictment, filed on March 17, 2003, with two counts of Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02(1), two counts of Criminal Possession of a Weapon in the Fourth Degree, N.Y. Penal Law § 265.01(1), and two counts of Administrative Code Violation of Unlawful Possession of a Rifle Without a Permit, N.Y.C.C.R. Admin. Code § 10-303.
On March 23, 2004, petitioner entered a plea of guilty to violating one count of § 265.02(1). Petitioner, in response to the trial court's query, stated he had sufficient time to discuss his plea with his attorney and that he was satisfied with his attorney's representation. (Petitioner's Rep. Br. Ex. E at 16) ("Plea Minutes"). The court advised petitioner he was giving up his right to a trial by jury. Plea Minutes at 16-17. Petitioner stated that besides the promise of a five-year period of probation, no one made any other promises or threats to force him to plead guilty. Plea Minutes at 17. Petitioner further waived his right to appeal from his conviction on non-jurisdictional matters, following explanation of the waiver by the court and discussion with his attorney. Plea Minutes at 18-20. Petitioner then allocuted to possessing a .38 caliber handgun on August 30, 2002. Plea Minutes at 20. On May 14, 2004, judgment was entered sentencing petitioner to a five-year term of probation.
Petitioner did not take an appeal. On April 25, 2006, petitioner, represented by the same counsel who represented him during his plea, sought collateral review of his conviction in the Supreme Court of New York, Kings County, applying to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) ("§ 440 motion").*fn3 The New York Supreme Court denied this motion on May 19, 2006, and, on September 8, 2006, the Appellate Division denied petitioner's application seeking leave to appeal. Petitioner filed his habeas petition in this Court on March 19, 2007.
Respondent argues that petitioner's application is barred by the 1996 Antiterrorism and Effective Death Penalty Act's ("AEDPA") limitations period. Petitioner asserts that his § 2254 petition is timely, as the limitations period began to run only after leave to appeal the trial court's decision on his § 440 motion was denied on September 8, 2006. In the alternative, petitioner asserts AEDPA's limitations period is not applicable because he is actually innocent.
Under AEDPA, a one-year period of limitations applies to an application of a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Under the provisions relevant to this case, the limitations period runs either from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, 28 U.S.C. § 2244(d)(1)(A), as respondent argues, or from 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)(D), as petitioner argues. This one-year period is tolled while any properly filed application for state post-conviction or other collateral relief is pending. 28 U.S.C. § 2244(d)(2).
Petitioner asserts that § 2244(d)(1)(D) is applicable. Petitioner then argues that the factual predicate for his claim did not exist until the Appellate Division, on September 8, 2006, denied leave to appeal the trial court's decision on petitioner's § 440 motion. In his § 440 motion, petitioner raised the same claims as he does here - that § 265.02(1) is unconstitutional because the statute is overbroad, and thus vague and ambiguous, and violates his Second Amendment right to bear arms. Petitioner has alleged no newly discovered facts which form the predicate of his claims and which, by their absence, would have precluded him from bringing these claims in a § 2254 petition prior to March 19, 2007.
Petitioner cites Johnson v. U.S., 544 U.S. 295 (2005) and Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2003) in support of his contention that the denial of leave to appeal constitutes a factual predicate under § 2244(d)(1)(D). These cases are inapposite. In Johnson, the Supreme Court determined that vacatur was a 'fact', commencing AEDPA's one-year limitations period, where the vacatur concerned a state court conviction that had been used to enhance petitioner's federal sentence, and petitioner sought review of his federal sentence. Thus, the petitioner in Johnson was unable to assert his claim concerning his sentence until his prior conviction had been vacated. Similarly, in Easterwood, petitioner happened upon a case in his prison library which detailed how the sole expert who had testified for the prosecution at Easterwood's trial was suffering from severe bipolar disorder which may have impaired his diagnostic judgment at the time he testified against Easterwood. Thus, the 10th Circuit determined the discovery of the unrelated case by Easterwood began his one-year limitations period anew. Petitioner, by contrast, asserts that rejection of his legal theories by the New York courts, which were available to him when his sentence became final, is the factual predicate for his claim. The Appellate Division's denial of leave to appeal does not form any basis of petitioner's claim, other than as a part of his argument that § 2241(d)(1)(D) is applicable in determinating the limitations period. It therefore does not constitute a factual predicate under § 2241(d)(1)(D).
Moreover, even if the denial of leave to appeal were a factual predicate under § 2244(d)(1)(D), by waiting nearly two years to seek collateral review in state court, pursuant to § 440.10(1)(h), petitioner cannot be said to have acted with due diligence, as § 2244(d)(1)(D) requires. See Johnson, 544 U.S. at 311 (2005) (petitioner, who waited over twenty-one months after judgment in federal criminal case was final to seek vacatur of state conviction which formed basis for enhanced federal sentence, failed to act with due diligence).
Section 2244(d)(1)(A) is therefore applicable. Petitioner's judgment became final on May 14, 2004. Under New York procedure, petitioner had thirty days from the imposition of sentence in which to file notice of appeal. N.Y. Crim. Proc. Law § 460.10(1)(a). Petitioner did not file a timely notice of appeal, and thus petitioner's judgment of conviction became final on June 13, 2004. See Daum v. Donnelly, No. 01-CV-2898, 2001 WL 1078338, at *1 (E.D.N.Y. Aug. 31, 2001) (where defendant does not file a timely notice of appeal, the habeas statute of limitations begins to run thirty days after the imposition of sentence). Petitioner did not make any application during the following year that would have tolled the limitations period and had all necessary facts required to bring the claims he asserts in his present § 2254 petition. Petitioner thus had until June 13, 2005 to file his § 2254 petition. He did not file his petition until March 19, 2007. The petition is therefore untimely.*fn4
In the alternative, petitioner argues that he is actually innocent of the crime, and thus AEDPA's statute of limitations does not apply to him. The Second Circuit has not yet ruled on whether "the Constitution requires an 'actual innocence' exception to [the] AEDPA's statute of limitations." Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003) (quoting Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir.), cert. denied, 531 U.S. 873 (2000)); Doe v. Menefee, 391 F.3d 147, 160 (2d Cir. 2004). However, before dismissing a habeas petition that claims actual innocence, a district court must "decide as a matter of fact whether [petitioner] has presented a credible claim of actual innocence." Whitley, 317 F.3d at 225.*fn5
In order to determine whether a petitioner has presented a credible claim of actual innocence, a district court should look to the factors in Schlup v. Delo, 513 U.S. 298 (1995). Doe, 391 F.3d at 161. Under Schlup, a petitioner must present "new reliable evidence" which makes it "more likely than not that no reasonable juror*fn6 would have found petitioner guilty beyond a reasonable doubt." Doe, 391 F.3d at 161-62 (citing Schlup, 513 U.S. at 324, 327) (internal quotation marks omitted). Petitioner's claim of actual innocence in this case is not based on any allegations of new evidence that he did not engage in conduct that led to the charge to which he pleaded guilty. Indeed, in his plea allocution, petitioner admitted to possessing the .38 caliber firearm in question.
Instead, petitioner argues that he is innocent because § 265.02(5) excludes as criminal the conduct that § 265.02(1) includes. The versions of § 265.02(1) and (5) in effect at the time petitioner was charged provided:
A person is guilty of criminal possession of a weapon in the third degree when:
(1) He commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime; or . . .
(5) (i) Such person possesses twenty or more firearms; or (ii) such person possesses a firearm and has been previously convicted of a felony or a class A misdemeanor defined in this chapter within the five years immediately preceding the commission of the offense and such possession did not take place in the person's home or place of business;
That § 265.02(1) facially encompasses § 265.02(5) does not render non-criminal those acts that fall within § 265.02(1) and do not fall within §265.02(5). Section 265.02(5) is classified as a "violent felony offense" pursuant to N.Y. Penal Law § 70.02(1)(c) and therefore is subject to more restrictive plea bargaining rules and sentence mandates than § 265.02(1). See People v. Garcia, 126 Misc. 2d 579, 581 (N.Y.Sup.Ct. 1984). The legislature therefore carved out a portion of what is criminal under § 265.02(1) to be subject to stiffer penalties. That certain acts are not subject to § 265.02(5) and its more restrictive sentencing and plea bargaining requirements does not mean that they cannot be otherwise interdicted. Thus, petitioner has not made a credible claim of actual innocence and his claim is time barred.*fn7
Moreover, even if petitioner's claim were timely,*fn8 § 265.02(1) is constitutional. Petitioner asserts that § 265.02(1) is unconstitutional, as applied, because it criminalizes conduct that § 265.02(5) excludes as criminal. Thus, petitioner argues, § 265.02(1)'s overbreadth, which creates an apparent contradiction with § 265.02(5), thereby renders § 265.02(1) unconstitutionally vague and ambiguous and also infringes upon petitioner's Second Amendment right to bear arms.
Section 265.02(1) is not overbroad. People v. Vernon, 83 Misc. 2d 1025, 1028 (N.Y.Sup.Ct. 1975) ("The classification to which [§ 265.02(1)] is aimed, namely, all those convicted of a crime, is not overly broad and bears a rational relationship to a legitimate State interest").
Nor is § 265.02(1) vague and ambiguous. "Vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." U.S. v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993) (citations omitted), cert. denied, 510 U.S. 933 (1993). "When the challenge is vagueness 'as-applied', there is a two-part test: a court must first determine whether the statute give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provide[s] explicit standards for those who apply [it]." Id. (internal quotation marks and citations omitted). Moreover, "[b]ecause the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness." Id.
A plain reading of § 265.02(1) makes it "reasonably clear . . . that the [petitioner's] conduct [is] criminal." U.S. v. Lanier, 520 U.S. 259, 267 (1997). Section § 265.02(1) provides no time limit or sentencing limit on the prior conviction. Thus, a person of reasonable intelligence would know possessing a weapon having been previously convicted of any crime*fn9 would subject him to criminal liability under § 265.02(1). That petitioner's prior criminal conviction occurred nearly seventeen years before the instant charge arose does not bear on whether or not § 265.02(1) is unconstitutionally vague. Thus, petitioner's claim that § 265.02(1) is unconstitutionally vague due to its supposed interplay with § 265.02(5) is without merit.
Similarly, petitioner's claim that § 265.02(1) violates his Second Amendment right to bear arms is without merit. The Second Circuit recently held "that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts." Bach v. Pataki, 408 F.3d 75, 84 (2d Cir. 2005). Petitioner acknowledges as much in his brief. Petitioner's Rep. Br. at 4, n. 3.
For the reasons set forth above, petitioner's application is dismissed. The Clerk is directed to transmit a copy of the within to all parties and the assigned Magistrate Judge.
Charles P. Sifton United States District Judge