Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Damon Smith v. William A. Lee

July 24, 2012

DAMON SMITH, PETITIONER,
v.
WILLIAM A. LEE, SUPERINTENDANT,
RESPONDENT.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge

OPINION & ORDER

Petitioner Damon Smith, a state prisoner proceeding pro se and currently serving a sentence at the Green Haven Correctional Facility in Stormville, New York, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as untimely under 28 U.S.C. § 2244(d), which supplies the statute of limitations for habeas petitions. For the reasons that follow, respondent's motion is denied.

I.Background and Procedural History

In his petition, Smith attacks his 2008 conviction in New York State court for first-degree manslaughter. Smith's petition also addresses an unrelated 1993 conviction-the result of a guilty plea-for criminal possession of a weapon in the second degree. The Court interprets the petition to assert that this offense served as a basis for finding Smith to be a persistent violent felony offender.

On November 12, 2008, the judgment of conviction was rendered against Smith in Bronx County Supreme Court. People v. Smith, 74 A.D.3d 441 (1st Dep't 2010). On June 1, 2010, the Appellate Division, First Department affirmed the conviction, id.; on August 10, 2010, Smith's request for leave to appeal to the Court of Appeals was denied. See People v. Smith, 15 N.Y.3d 810 (2010). Smith had 90 days from the date of that denial to file a petition for a writ of certiorari to the Supreme Court of the United States, but apparently did not do so. See Supr. Ct. R. 13(1); Resp't's Mot. to Dismiss 4.

As to the 1993 conviction, judgment was rendered against Smith in Bronx County Supreme Court on October 8, 1993; Smith was sentenced to an indeterminate term of four to eight years in prison. People v. Smith, 219 A.D.2d 504 (1st Dep't 1995). On September 19, 1995, the Appellate Division, First Department affirmed that conviction. Id. On November 27, 1995, Smith's request for leave to appeal to the New York Court of Appeals was denied. People v. Smith, 87 N.Y.2d 851 (1995).

On November 17, 2012, Smith's undated habeas petition was received by the District's pro se office. On January 26, 2012, respondent moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Smith has not opposed the motion.

II.Applicable Legal Standard on a Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, in considering a motion to dismiss, a district court "must accept as true all well-pleaded factual allegations in the complaint, and 'draw[ ] all inferences in the plaintiff's favor.'" Brown v. Kay, No. 11-cv-7304, 2012 WL 408263, at *7 (S.D.N.Y. Feb. 9, 2012) (quoting Allaire Corp. v. Okumus, 433 F.3d 248, 249--50 (2d Cir. 2006)).

Because plaintiff is proceeding pro se, the Court must liberally construe his petition and any further pleadings, and "interpret them to raise the strongest arguments that they suggest." Cold Stone Creamery Inc. v. Gorman, 361 F. App'x 282, 286 (2d Cir. 2010) (summ. order) (internal quotation marks omitted). As a general rule, pro se complaints are held to less stringent standards than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520--21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213--14 (2d Cir. 2008). However, despite the more lenient standard, to survive a motion to dismiss a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Accordingly, dismissal of a pro se complaint is appropriate where a plaintiff has clearly failed to meet minimum pleading requirements. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997); Honig v. Bloomberg, No. 08-cv-541, 2008 WL 8181103, at *4 (S.D.N.Y. Dec. 8, 2008), aff'd, 334 F. App'x 452 (2d Cir. 2009).

III.Discussion

A.Statute of Limitations

Under 28 U.S.C. § 2254, "a person in custody pursuant to the judgment of a State court" may petition a federal court for a writ of habeas corpus "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Ross v. Artuz, 150 F.3d 97, 99 (2d Cir. 1998). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") introduced a statute of limitations with respect to habeas petitions and motions to vacate federal sentences. 28 U.S.C. § 2244(d); Ross, 150 F.3d at 99. AEDPA's limitations period, with some exceptions, ends one year after the date on which the petitioner's conviction became final. 28 U.S.C. § 2244(d). The statute of limitations provision, § 2244(d), reads, in relevant part:

(1) A 1-year period of limitation 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.