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I Sa H Aqq v. B. Y Elich


November 20, 2012


The opinion of the court was delivered by: Joseph F. Bianco United States District Judge


Joseph F. Bianco, District Judge: and the petition is dismissed. Specifically, the conviction under attack became final on Isa Haqq (hereinafter "Haqq" or August 29, 1999. Under the Antiterrorism "petitioner") petitions this Court for a writ and Effective Death Penalty Act of 1996 of habeas corpus, pursuant to 28 U.S.C. § ("AEDPA"), a petition must be filed no later 2254, to vacate his conviction for three than one year following the date a counts of robbery in the second degree. conviction becomes final. As the present Haqq challenges his conviction on the petition was filed on April 30, 2012, over following grounds: (1) the sentencing court twelve years after the one-year period failed to inform him that he could challenge expired, it is untimely. Moreover, there is the constitutionality of his conviction in no basis for equitable tolling. Accordingly, 1982; and (2) he was convicted as a the petition is dismissed as time-barred. persistent violent felony offender when his previous conviction was for attempted I. BACKGROUND burglary in the second degree and not burglary in the second degree, as he On June 21, 1999, petitioner pled guilty admitted. Yelich (hereinafter "respondent") to three counts of robbery in the second moves to dismiss the petition as untimely. degree, N.Y. Penal Law. § 160.10. (June 21, 1999 Minutes of Plea ("Plea Tr.") at

For the reasons set forth below, the respondent's motion to dismiss is granted 23.)*fn1 At that time, petitioner admitted that ineffective for failing to intervene when the on three occasions, once on September 20, court said his new sentence would run 1998 and twice on October 3, 1998, consecutively with his previous sentence; petitioner and a co-defendant robbed people and (3) that the court incorrectly classified inside different establishments using a him as a persistent violent felony offender. firearm. (Id. at 14-19.) (Id. at ¶ 9.) Petitioner's motion was denied by the County Court on July 21, 1999 and As part of his plea agreement, petitioner leave to appeal was denied on December 2, understood that he would be sentenced as a 1999. (Id.) On or around June 21, 2010, persistent violent felony offender, and petitioner filed another motion to vacate his admitted that he had twice been previously sentence, claiming that: (1) the court failed convicted of robbery in the second degree, to advise him of his right to contradict once in 1982 and once in 1987. (Id. at 21- allegations in the persistent violent felony 22.) offender statements; and (2) his attorney was ineffective for failing to request a

Before entering his guilty plea, petitioner preliminary examination to contest the stated on the record that he was pleading statements. (Id. at ¶ 10). The County Court guilty to the charges with the understanding denied this motion on June 25, 2010. (Id.) that the court would impose a sentence of three concurrent indeterminate terms of On March 28, 2011, petitioner moved imprisonment of sixteen years to life. (Id. at again to vacate his sentence. In this third 12-13.) Petitioner voluntarily waived his motion, petitioner argued that he could not right to appeal after stating that he have been sentenced as a persistent violent understood that the District Attorney felony offender because his 1982 conviction required him to waive that right as a was for attempted second degree burglary, condition of his plea agreement. (Id. at 9- rather than second degree burglary as stated 10.) Additionally, the court advised Haqq of on the record. (Id. at ¶ 11; Plea Tr. at 21.) his other rights and he agreed to waive those The County Court denied this motion on rights. (Id. at 8-9.) May 16, 2011, and leave to appeal was denied on September 13, 2011. (Hershey On July 30, 1999, petitioner was Aff. at ¶ 11.) sentenced, in accordance with his plea agreement, to three concurrent indeterminate On April 30, 2012, pro se petitioner filed terms of imprisonment of sixteen years to the instant application before this Court for a life. (Joanna Hershey Affidavit, June 19, writ of habeas corpus. In his petition, 2012 ("Hershey Aff.") at ¶ 7.) petitioner claims that: (1) the sentencing court failed to inform him that he could Petitioner filed his first motion to vacate challenge the constitutionality of his 1982 his conviction on or around July 23, 2009, conviction; and (2) he was convicted as a arguing that: (1) the Court failed to advise persistent violent felony offender even him that his sentence would run though his previous conviction was for consecutively with the undischarged time on attempted burglary in the second degree and an unrelated conviction; (2) his attorney was not burglary in the second degree as he admitted. (Petitioner's Memorandum of motion to dismiss the petition. On July 5, (C) the date on which the 2012, petitioner filed his opposition to that constitutional right asserted was motion. On October 25, 2012, petitioner initially recognized by the Supreme filed a motion for a certificate of Court, if the right has been newly appealability even though the Court had not recognized by the Supreme Court yet decided the respondent's motion. The and made retroactively applicable to Court has fully considered all of the parties' cases on collateral review; or submissions in rendering its decision.


(D) the date on which the factual predicate of the claim or claims presented could have been Respondent seeks to dismiss the instant discovered through the exercise of habeas corpus petition because petitioner due diligence. failed to file his petition within the applicable statute of limitations provided by 28 U.S.C. § 2244(d)(1)(A-D). Pursuant to 28 U.S.C. §2244(d)(1). For the reasons set AEDPA, "[t]he time during which a forth below, this Court concludes that properly filed application for State post-Haqq's petition is untimely under Section conviction or other collateral review with 2244(d), and that there is no basis for respect to the pertinent judgment or claim is equitable tolling of the statute of limitations. pending shall not be counted toward any period of limitation . . . ." 28 U.S.C. §

A. Statute of Limitations 2244(d)(2). The Second Circuit has held that "[a] state-court application or motion

The Antiterrorism and Effective Death for collateral relief is 'pending' from the Penalty Act of 1996 ("AEDPA") imposes a time it is first filed until finally disposed of one-year statute of limitations on state and further appellate review is unavailable prisoners seeking habeas corpus review in under the particular state's procedures." federal court. 28 U.S.C. § 2244(d)(1). The Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. statute begins to run from the latest of: 1999); see also Carey v. Saffold, 536 U.S. 214, 217, 220-21 (2002); Smith v. McGinnis,

(A) the date on which the 208 F.3d 13, 17 (2d Cir. 2000); Gant v. [petitioner's] judgment [of Goord, 430 F. Supp. 2d 135, 138 (W.D.N.Y. conviction] became final by the 2006). conclusion of direct review or the expiration of the time for seeking Pursuant to New York law, "[a] party such review; seeking to appeal from a judgment or a sentence . . . must, within thirty days after

(B) the date on which the imposition of the sentence . . . file with the impediment to filing an application clerk of the criminal court in which such created by State action in violation of sentence was imposed . . . a written notice of the Constitution or laws of the appeal . . . ." N.Y. C.P.L. § 460.10(1). United States is removed, if the Therefore, when a defendant fails to appeal applicant was prevented from filing a decision to the Appellate Division, the by such State action; conviction becomes final thirty days after the sentence is imposed. See Bethea v. Girdich,293 F.3d 577, 578 (2d Cir. 2002);

Perich v. Mazzuca, CV-05-2942, 2007 WL of limitations. Petitioner's first motion to 2455136, at *5 (E.D.N.Y. Aug. 23, 2007). vacate does not toll the statute of limitations because it was filed on July 23, 2009, almost In the instant case, only subsections (A) ten years after his conviction became final. and (D) could be applicable to this habeas This collateral attack, filed so many years petition. As set forth below, the petition is after his conviction became final, "does not untimely under Section 2244(d)(1)(A), and reset the start of the limitations period." Id. Section 2244(d)(1)(D) does not result in a at 17. later date of commencement of the statute of limitations period under the facts of this Haqq had to file his petition by August case. 29, 2000 in order for it to have been timely.

Accordingly, because petitioner did not file

(1) Section 2244(d)(1)(A) any petitions in state court until almost nine years after the time period to file had

Pursuant to Section 2244(d)(1)(A), the expired, and did not file this petition until statute of limitations began to run on the over twelve years after his conviction date petitioner's conviction became final. became final, the Court concludes that the On June 21, 1999, petitioner pled guilty to petition is untimely. three counts of robbery in the second degree.

Petitioner was sentenced on July 30, 1999 to (2) Section 2244(d)(1)(D) three concurrent indeterminate terms of imprisonment of sixteen years to life. Given Petitioner claims, however, that he that petitioner waived his right to appeal as should be allowed to bring this petition part of his plea agreement, he did not appeal because there is "newly discovered his conviction. Had he not waived this right, evidence." (Ptr.'s Mem. at 9.) Under 28 his time to appeal would have expired thirty U.S.C. § 2244(d)(1)(D), the one-year statute days after his July 30, 1999 sentencing. See of limitations does not begin until the date N.Y. C.P.L. § 460.10(1)(a). Accordingly, "on which the factual predicate of the claim petitioner's conviction became final on or claims presented could have been August 29, 1999, and petitioner's time to discovered through the exercise of due file his petition expired on August 29, 2000. diligence."

Under AEDPA, the "time during which Petitioner claims that a commitment a properly filed application for State post- order from his 1982 conviction that conviction or other collateral review with demonstrates he was convicted of attempted respect to the pertinent judgment or claim is robbery, and not robbery, is newly pending shall not be counted toward any discovered evidence. (Ptr.'s Mem. at 9) period of limitation under this subsection." However, evidence is not newly discovered 28 U.S.C. § 2244(d)(2); see Duncan v. simply because petitioner did not possess it Walker, 533 U.S. 167 (2001). A state until recently. Under Section 2244(d)(1)(D), collateral proceeding commenced after the if the evidence could have been obtained one-year limitations period has already earlier, "the date when the evidence was expired does not reset the start of the actually obtained has no effect on the limitations period. See Smith, 208 F.3d at AEDPA limitation period." Duamutef v. 16-17 & 16 n.2. In this case, none of Mazzuca, 01-CIV-2553, 2002 WL 413812, petitioner's motions to vacate toll the statute at *9 (S.D.N.Y. Mar. 15, 2002) (Report and Recommendation) (internal citation omitted). Not only should petitioner have In the instant case, petitioner has failed been aware in 1999 of the crime he was to demonstrate any extraordinary convicted of in 1982, but he also fails to circumstances that prevented him from provide the Court with a sufficient properly filing his habeas corpus petition in explanation as to why he was not aware of a timely fashion. To the extent petitioner this fact in 1999, or why the documentation attempts to argue that the "newly discovered on his 1982 conviction could not have been evidence" regarding the 1982 conviction discovered in the year following his should provide a basis for equitable tolling, conviction. See In re Boshears, 110 F.3d the Court rejects that argument for the same 1538, 1540 (11th Cir. 1997) ("Criminal reasons discussed supra with respect to defendants are presumed to have conducted Section 2244(d)(1)(D) -- namely, petitioner a reasonable investigation of all facts has failed to explain why he was not aware surrounding their prosecution." (citing of any issues regarding his prior conviction McCleskey v. Zant, 499 U.S. 467, 498 at the time of his sentence, or in the many (1991))). Therefore, since petitioner "knew, years following his sentence.*fn2 Moreover, or should have known through the exercise even if petitioner were able to demonstrate of due diligence" at the time of his 1999 extraordinary circumstances, he has not conviction of the crime he pled guilty to in provided any evidence that he acted with 1982, his petition is also untimely under § "reasonable diligence" during the nearly 2244(d)(1)(D). See Friedman v. Rehal, 618 decade-long delay between his conviction F.3d 142, 152 (2d Cir. 2010). and his first post-conviction motion.

B. Equitable Tolling of the Statute of In short, petitioner has not presented any Limitations grounds that warrant equitable tolling. Nor has petitioner made a showing of actual

Although the instant petition is untimely, innocence.*fn3

F.3d 223, 225 (2d Cir. 2003) (holding that it was in error to dismiss a petition claiming actual innocence, on statute of limitations grounds, without further analysis). Accordingly, the petition is dismissed as time-barred.


For the reasons discussed above, the petition for a writ of habeas corpus is dismissed as time-barred. On October 22, 2012, petitioner requested a certificate of appealability before his petitioner had been decided. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment accordingly and close the case.


Dated: November 20, 2012 Central Islip, NY

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