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Goldstein v. Laffin

United States District Court, S.D. New York

June 18, 2014

JOSEPH GOLDSTEIN, Petitioner,
v.
TIMOTHY LAFFIN, Respondent.

REPORT AND RECOMMENDATION

PAUL E. DAVISON, Magistrate Judge.

I. INTRODUCTION

Proceeding pro se. Joseph Goldstein ("Petitioner) again seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from his April 13, 2007 Sullivan County conviction (Ledina, J.).[1] Petitioner was convicted, upon pleas of guilty. of two counts of reckless endangerment in the first degree and one count of aggravated unlicensed operation of a motorvehicle in the first degree, and sentenced to two concurrent terms of three and one-half to seven years imprisonment on the reckless endangerment convictions, and to run consecutively, a term of one and one-third to four years imprisonment on the motor vehicle conviction. This matter comes before me pursuant to an Order of Reference dated August 1, 2013. (Dkt. 9.) For the reasons set forth below. I respectfully recommend that this petition be DISMISSED AS TIME-BARRED.

II BACKGROUND[2]

A. Crimes and Indictment On April 5, 2006 in the town of Liberty. New York. Petitioner drove his vehicle recklessly while his license was suspended or revoked. Among other things. Petitioner drove through a construction zone at a high rate of speed, forcing a car off the road and requiringtwo flagmen to jump out of his way. A grand jury indicted him on the tolloing offenses:

(1) 2 counts of reckless endanerment in the first degree, in violation of N.Y. Penal Law § 120.25:

(2)1 count of aggravated unlicensed operation to a motor vehicle in the first degree. in violation of N.Y. Veh. Traf. Law §)(a)(ii

(3)2 counts of failure to stop at a stop sign, in violation of N.Y. Veh. Traf. Law § 1172(a):

(4) 1 count of failure to comply with a police officer, in violation of N.Y. Veh. Ural. Law § 1102;

(5)2 counts of speed not reasonable and prudent, in violation of N.Y. Veh. Traf. Law § 1180(a);

(6) 3 counts of failure to yield right of way while making a left turn, in violation of N.Y. Veh. Traf. Law § 1141:

(7) 2 counts of reckless driving, in violation of N.Y. Veh. Traf. Law § 1212;

(8) 2 counts of failure to comply with a flagman, in violation of N.Y. Veh. Trail Law § 1102;

(9) 1 count of operation of a motor vehicle on a public highway while using a mobile phone, in violation of N.Y. Veh. Traf. Law § 1225-c;

(10) 1 count of speed 70 miles per hour in a 40 mile per hour zone, in violation of N.Y. Veh. Traf. Law § 1180(b);

(11) 1 count of speed 70 miles per hour in a 40 mile per hour school zone, in violation of N.Y. Veh. Traf. Law § 1180(c);

(12) 1 count of speed 80 miles per hour in a 55 mile per hour zone, in violation of N.Y. Veh. Traf. Law § 1180(b);

(13)1 count of driving on the shoulder, in violation of N.Y. Veh. Trail Law § 1131;

(14) 2 counts of passing in a no passing zone, in violation of N.Y. Veh. Traf. Law § 1126; and

(15) 1 count of speed 80 miles per hour in a 30 mile per hour zone, in violation of N.Y. Veh, Traf. Law § I 180(b).

(Indictment (attached to Resp Deci. in Opp'n to Pet. for a Writ of Habeas Corpus ("Resp't's (Dkt. 14), at Ex. A).[3])

B. Arraignment, Guilty Plea, and Sentence

Through counsel, Petitioner appeared and pled not guilty on August 14. 2006. (Aug. 2006 Tr. (Ex. A).) On August 16.2006. at a conference set for a bail application. Petitioner accepted a plea bargain. In exchange for the prosecutor's recommendation of concurrent sentences of three and one-half to seven years imprisonment on the reckless endangerment convictions and one and one-third to four years imprisonment on the aggravated unlicensed operation conviction. Petitioner pled guilty to those offenses and executed a waiver of his rights to direct and collateral appeals. (Aug. 16, 2006 Tr. (Ex. A).) Bail was granted and Petitioner was released two days later. (Aug. 18, 2006 Tr. (Ex. A).)

Through counsel, Petitioner moved to withdraw his guilty plea. The court denied the motion on February 27, 2007. (Ex. B.) Thereafter, Petitioner failed to appear at his scheduled sentencing. The court revoked bail, issued a bench warrant for Petitioner's arrest, and rescheduled the sentencing. (Mar. 13, 2007 Tr. (Ex. A); Bench Warrant (Ex. A).) Petitioner was later located and appeared for sentencing on April 13. 2007. He was arraigned as a second felony offender and sentenced.[4] However, the court did not impose the sentence negotiated at the time of Petitioner's guilty plea. Due to Petitioner's earlier failure to appear, the court sentenced Petitioner to concurrent terms of three and one-half to seven years imprisonment on the reckless endangerment endangerment convictions. and a term of one and one-third to four years imprisonment on the aggravated unlicensed operation conviction, but ordered the unlicensed operation sentence to run consecutive to the others. (Apr. 13, 2007 Tr. (Ex. A).)

C. Direct App

Through counsel, Petitioner. appealed his conviction to the New York State Appellate Division. Third Department. The conviction was affirmed on May 22. 2008. People v. Goldstein , 857 N.Y.S.2d 817 (App. Div. 2008). Petitioner was granted leave to appeal to the New York State Court of Appeals on August 7, 2008. People v. Goldstein , I I N.Y.3d 743 (2008). On April 30, 2009, the New York State Court of Appeals affirmed the conviction. People v. Goldstein , 12 N.Y.3d 295 (2009). Petitioner did not seek a writ of certiorari to the United States Supreme Court. (See Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Pet.") ¶ 112 (Dkt. 1).)

D. First Federal Habeas Corpus Proceeding

Petitioner filed an application seeking federal habeas relief in this district in 2009. That petition was dismissed without prejudice as a "mixed" petition that contained both exhausted and unexhausted claims.[5] Goldstein v. Hulihan, No. 09 Civ. 6824(CS)(PED), 2011 WL 4954038 (S.D.N.Y. Oct. 18, 2011). Petitioner moved for reconsideration of this decision. which was denied, and then sought leave to amend his dismissed petition, which was also denied. Goldstein v. Hulihan No. 09 Civ. 6824(CS)(PED), 2012 WL 1438151 (S.D.N.Y. Apr. 25, 2012). The docket in that matterreflects that Petitioner appealed these decisions and the Second Circuit has dismissed those appeals.

E. First Motion to Vacate the Judgment of Conviction

By application dated October 26, 2011. Petitioner moved in state court to vacate the judgment of his conviction pursuant to Section 44010 of the N.Y. Criminal Procedure Law. (Ex. H.) The trial court denied the motion on December 16, 2011. (Ex. K.) Petitioner moved for re-argument (Ex. L).[6] and then sought leave to appeal the trial court's decision, (Ex. 0). The Third Department denied leave to appeal on February 6, 2012. (Ex. P.)

F. Second Motion to Vacate the Judgment of Conviction

By application dated February 9, 2019, Petitioner moved a second time in state court to vacate the judgment of his conviction pursuant to Section 440.10. (Ex. Q.) The trial court denied the motion on January 8, 2013. (Ex. T.) Petitioner filed a "motion to renew and reargue, " (Ex. U), [7] and then sought leave to appeal the trial court's decision. (Ex. V). The Third Department denied leave to appeal on March 12, 2013. (Ex. W.)

G. Second Federal Habeas Corpus Proceeding

By petition dated March 14, 2013. Petitioner again seeks a federal writ of habeas corpus from his 2007 state conviction. Goldstein v. Laffin, No. 13 Civ. 1856(CS)(PED) (Dkt, I). Respondent opposes the petition. (Dkts. 13-14.) Petitioner has filed a reply. (Dkt. 18.)

III. DISCUSSION

A. Applicable Law

"Habeas review is an extraordinary remedy." Bousley v. United States , 523 U.S. 614, 621 (1998) (citing Reed v. Farley , 512 U.S. 339. 354 (1994)). Before a federal district court may reviewthe merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pub. L. No. 104-132. 110 Stat. 1220 (Apr. 1996).

Under AEDPA, a federal habeas corpus petition is subject to a strict one-year statute of limitations. See 28 U.S.C. § 2244(d). The statute provides four different potential starting points for the limitations period. and specifies that the latest of these shall apply. See id, § 2244(d)(1). Under the statute, the limitation period is tolled only during the pendency of a properly filed application for State post-conviction relief, or other collateral review, with respect to the judgment to be challenged by the petition. See id, § 2244(d)(2). The statute reads as follows:

(d)(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 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.
(d)(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.

Id, 244(d).

B. The Petition is Untimely

1. Section 2244(d)(1)(A) "[A] petitioner's conviction be[comes] final for [AEDPA] purposes when his time to seek direct review in the United States Supreme Court by writ of certiorari expire[s].'" Williams v. Artuz , 237 F.3d 147. 150 (2d. Cir. 2001) (quoting Ross v. Artuz , 150 F.3d 97. 98 (2c1 Cir. 1998)). Here, the New York State Court of Appeals affirmed Petitioner's conviction on April 30. 2009. People v. Goldstein , 12 N.Y.3d 295 (2009). Petitionefs deadline to file for a writ of certiorari in the United States Supreme Court fell ninety days later, on July 9, 2009. 28 U.S.C. § 2101(d); Sup. Ct. R. 13(1). Under Section 2244(d)(1)(A). Petitioner's one-year window to file his federal habeas petition expired on July 29. 2010. Absent tolling, hen. his March 2013 petition is untimely.

i. Statutory Tolling

Although it is well-established that a state court motion to vacate a conviction tolls AEDPA's statute of limitat ons see § 2244(42): Bennett v. Artuz , 199 F.3d 116, 119-20 (2d Cir. 1999), it is equally clear that such motions do not "reset the date from which the... statute of limitations begins to run." Smith v. McGinnis , 208 F.3d 13, 17 (2d Cir. 2000). Accordingly, Petitioner's motions to vacate, both of which were filed long after the July 29, 2010 deadline had passed, did not toll the limitations period. In addition, Petitioner's first application seeking a federal writ of habeas corpus "is not an application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2) [and] therefore d[oes] not toll [AEDPA's] limitation period." Duncan v. Walker , 533 U.S. 167, 181-82 (2001). Accordingly. there is no statutory basis for tolling the limitations period.

ii. Equitable Tolling

Petitioner contends that the statute of limitations should be equitably tolled. (See Dkt. 5, at 1, 4; Dkt. 6, at 3-7: Dkt. 18. at 9-10.) Respondent maintains that equitable tolling is not warranted. (See Resp't's Mem. at 18-19.) I agree with Respondent.

The Supreme Court has held that AEDRA's one-year statute of limitations period is subject to equitable tollin appropriate where a petitioner has shown "(I) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing Holland v. Florida , 560 U.S. 631. 649 (2010) (quoting Pace v. DiGuglielmo , 544 U.S. 408. 418 (2005)). In the Second Circuit, equitable tolling is confined to "rare and exceptional circumstance[s], " Smith v. McGinnis , 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (internal quotation omitted), which have "prevented [the petitioner] from filing his petition on time[.]" Valverde v. Stinson , 224 F.3d 129. 134 (2d Cir. 2000) (internal quotation marks and emphasis omitted). "The term extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole , 648 F.3d 132, 137 (2d Cir. 2011). "To secure equitable tolling, it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline." Id, ; see also Valverde , 224 F.3d at 134 (the applicant for equitable tolling 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").

Here, Petitioner maintains that he "exercised due diligence constantly" and points to his numerous state and federal court Minas. (Dkt. 6, at 3.) However, Petitioner fails to account for the circumstances which led to the dismissal of his first habeas petition. Petitioner deliberatel), chose to pursue a mixed petition after he was on notice that it contained potentially unexhausted claims. Had Petitioner accepted the Court's invitation to seek a stay of his first petition, he would not be confronted with the timeliness hurdle he must now overcome. Moreover, in denying Petitioner's motion to amend his first habeas petition. Your Honor specifically found that Petitioner's "tactics" in, among other things. deliberately foregoing the opportunity to exhaust the unexhausted claims in his petition, were "dilatory and otherwise abusive" of the writ. Goldstein v. Hulihan, No. 09 Civ. 6824(CS)(PED), 2012 WL 1438251. at *1 (S.D.N.Y. Apr. 25, 2012). Petitioner's litigation tactics do not reflect the type of diligence required to support equitable tolling.

Petitioner also argues that extraordinary circumstances prevented him from timely filing his instant petition. Specifically, he maintains that both Your Honor and I failed to inform him that the statute of limitations would present a procedural obstacle after his first petition was dismissed. (See Dkt. 6, at 4-5.) Petitioner's argument, however, falls far short of establishing the kind of "rare and exceptional" circumstance that would warrant an equitable toll. McGinnis , 208 F.3d at 17. It is clear that "a lack of legal knowledge cannot excuse a delay in filing a petition." Wilson v. Bennett , 188 F.Supp.2d 347, 354 (S.D.N.Y. 2002); see also Doe v. Menefee , 391 F.3d 147, 175 (2d Cir. 2004) ( pro se status does not in itself constitute an extraordinary circumstance meriting tolling); McGinnis , 208 F.3d at 18 ( pro se status... does not merit equitable tolling"); Strano v. Warden, No. 11 Civ. 1810(AWT), 2014 WL 358987. at *3 (D. Conn. Jan. 30, 2014) (collecting cases noting that "[t]he Court of Appeals for the Second Circuit and district courts within this circuit are consistent in holding that neither a petitioner's pro se status, nor his unfamiliarity with the law, nor his lack of access to legal materials/assistance constitute an extraordinary circumstance that provides a basis to toll [AEDPA's] statute to limitations"); see also, e.g, Madison v. Hulihan, No. 09 Civ. 337(DLI), 2012 Wl 1004780, at *4 (E.D.N.Y, a 2012) (citing Artis v. Huliahn, No. 09 Civ. 9893(BSJ)(JCF). 2010 WL 4668926. at *4 (S.D.N.Y. Nov. 12. 2010) and Madison v. Hulihan, No. 08 Civ. 5195(SCR)(LMS). 2009 WL 7028639 (S.D.N.Y. Dec. 22, 2009)) (finding no extraordinary circumstances where pre-printed court forms did not specifically reference AEDPA's statute of limitations period since petitioner could have discovered information about the deadline through other sources); Oliphant McGill No. 08 Civ. 1728(WWE). 2011 WL 4434 06. at*5 (D. Conn. Sept. 21, 2011) ("Petitioner's claim of a lack of knowledge of the statute of limitations period governing section 2254 petitions does not constitute an extraordinary circumstance warranting the tolling of the limitations period").[8]

In any event, Petitioner was (or should have been) on notice of the statute of limitations problem which now confronts him. This Court's January 14, 2011 Order, which set the stage for the February 23. 2011 hearing at which Petitioner declined to seek a stay of his earlier petition, cited three cases. One of those cases was Zarvela v. Artuz , 254 F.3d 374 (2d Cir. 2001), wherein the Court of Appeals acknowledged the procedural obstacles which confront habeas applicants who face dismissal of mixed petitions and specifically authorized district courts to stay mixed petitions in order to protect petitioners from the consequences of such dismissals.[9] Petitioner thus had the benefit of the Zarvela court's analysis when he rejected this Court's invitation to seek a stay. I also note that this Court's February 28, 2011 Report and Recommendation specifically observed that la]lthough a dismissal may preclude Petitioner from having his claims addressed by a federal court, Petitioner has rejected the procedure available to protect his rights." Goldstein v. Hulihan, No. 09 Civ. 68 4(CS)(PED). 2011 WL 4954043, *8 (S.D.N.Y. Feb. 28, 2011) (citing Zarvela, 254 F.3d at 180-83). Petitioner has not established extraordinary circumstances.[10]

According equitable tolling of the statute oflimitations is not warranted. As discussed above, the petition is untimely under Section 2244(d)(1)(A).

2. Section 2244(d)(1)(D)

Petitioner also argues that the starting point for AEDPA's statute oflimitations should be calculated pursuant to Section 2244(d)(I)(D). Under this section, the starting point is "the date on which the factual predicate of the... claims presented could have been discovered through the exercise of due diligence." Petitioner maintains that he "discovered the factual predicate' of his [ habeas ] claim on February. [sic] 15-20, 2012." when he "learned of the facts oftime/distance, and perception reaction time." (Dkt. 6, at 1; see also, Dkt. 18. at 2, 8-9.) Specifically, Petitioner asserts he learned these facts through: first, a "Google Maps" image which purportedly shows "the length of the road where Petitioner allegedly drove at a... high rate of speed..." and which indicates that "the road is 1.3 miles at length and would take 5 minutes to travel;" and second, "Forensic Aspects of Driver Perception and Response, " by Paul Olson, a book about driver reaction time that was published in 1996 and that came to Petitioner's attention after he read a 2006 case from the District of Maryland. Moore v. Matthews , 445 F.Supp.2d 516, 528 n.I (D. Md. 2006), which cited the book. (Dkt. 6. at 8: see also Dkt. 5, at 2-3; Dkt. 18, at 6-7, 10-16.) I do not agree with Petitioner that this information constitutes a factual predicate for his habeas claims under Section 2 44(d)(1)(D).

"The determination of the date on which the factual predicate for a habeas claim is first discoverable is a fact-specific' inquiry which requires a district court to analyze the factual bases of each claim and to determine when the facts underlying the claim were known, or could with due diligence have been discovered." Rivas v. Fischer , 687 F.3d 514, 534 (2d Cir. 2012). The Second Circuit has held that the term "factual predicate" relates only to "vital facts' underlying the claim, " and has explained that those "facts vital to a habeas claim are those without which the claim would necessarily be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts... or Rule 12(b)(6) of the Federal Rules of Civil Procedure." Id, at 535 (quoting McAleese v. Brennan , 483 F.3d 214 (3d Cir. 2007)). Accordingly, "if new information is discovered that merely supports or strengthens a claim that could have been properly stated without the discovery, that information is not a factual predicate' for purposes of triggering the statute of limitations under § 2244(d)(1)(D), " Id, Moreover, "it should go without saying that a factual predicate must consist of facts. Conclusions drawn from preexisting facts, even if the conclusions are themselves new, are not factual predicates for a claim, " Id, (emphasis in original) (internal citations omitted); see also id. (quoting McAleese , 483 F.3d at 214 and noting that a petitioner may "confuse[i the facts that make up his claims with evidence that might support his claims'"). id, (emphasis added) (quoting Escamilla v. Jungwirth , 426 F.3d 868. 871 (7th Cir. 2005) and noting that "Section 2244(d)(1)(D) does not restart the time when corroborating evidence becomes available "). The Second Circuit also requires that, in order to determine if information relied upon as newly discovered could have, in fact, been discovered through the exercise of due diligence. a district court's "proper task... is to determine when a duly diligent person in [the] petitioner's circumstances would have discovered" that information. Wims v. United States , 225 F.3d 186, 190 (2d Cir. 2000).

In this case. the information Petitioner asserts is newly discovered-i.e., the map and the book-do not constitute factual predicates for his claims. Petitioner argues that. given the road length and the standard reaction times published in book he discovered, the flagmen could not have had sufficient time to observe the make and model of the car, see the driver using a cell phone, and still manage to jump out of the way of the speeding car. Additionally, Petitioner suggests that, given the road length, the second flagman "was not in any real danger and had sufficient time to get out of the way of his vehicle. (Dkt. 6, at 9-11.) Even assuming that Petitioner's calculations are correct, it is clear that these claims could have been raised without the map or the book: Petitioner could simply have asserted that he was innocent and that the flagmen were not accurate when they stated that Petitioner was driving fast and that they had to jump out of his way. Petitioner's recent discovery of material which supports such claims is insufficient to establish an AEDPA starting point under Section 22440(1)(D). Rivas , 687 F.3d at 535; McAleese , 483 F.3d at 214. In any event, a duly diligent person in Petitioner's circumstances could clearly have obtained this information earlier. Wims , 225 F.3d at 190: see also, e.g, Haqq v. Yelich, No. 12 Civ. 2359(JFB), 2012 WL 5879121. at *4 (E.D.N.Y. Nov. 20, 2012) (quoting Duamutef v. Mazzuca , 01 Civ. 2553 (WHP)(GWG), 2002 WL 413812, at *9 (S.D.N.Y. Mar. 15, 2002)) ("Under Section 2244(d)(1)(XD), if the evidence could have been obtained earlier, "the date when the evidence was actually obtained has no effect on the AEDPA limitation period.'").[11]

Petitioner does not argue that another starting point under Section 2244(d)(1) applies. Accordingly, because he has not established a newly discovered factual predicate for his claims. Section 244(d)(1)(D) is not applicable. I therefore recommend that the starting point for AEDPA's statute of limitations be calculated according to Section 244(d)(1)(A). As discussed above, the petition is untimely untimely under that provision and should therefore be dismissed.

3. Actual Innocence

Petitioner also contends that his actual innocence is a basis for this Court's review of his petition. The failure to timely file a habeas petition may be excused where the petitioner presents "a credible and compelling claim of actual innocence." Rivas , 687 F.3d at 540; see also McQuiggin v. Perkins , 133 S.Ct. 1924, 1928 (2013) (We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar... or... expiration of the statute of limitations."). Such a showing requires the petitioner "to create sufficient doubt about his guilt that the habeas court will permit him to pursue his accompanying constitutional claims notwithstanding an otherwise applicable procedural bar." Rivas , 687 F.3d at 541; see id, (quoting Schlup v. Delo , 513 U.S. 298, 316 (1995)) (emphasis omitted) ("the evidence must establish sufficient doubt about [the petitioner's] guilt to justify the conclusion that his [custody] would be a miscarriage of justice unless his conviction was the product of a fair trial'"). "Accordingly, to present a successful gateway claim of actual innocence a petitioner must present evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Id, (quoting Schlup , 513 U.S. at 316).

The evidence of actual innocence "must be both credible' and "compelling, " id, at 541 (quoting House, 547 U.S. at 521). To be credible, " the evidence must consist of "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'" Id, (quoting Schlup , 513 U.S. at 324). To determine whether the new evidence is reliable, the habeas court must "consider[] it both on its own merits and, where appropriate, in light of the pre-existing evidence in the record." Doe , 391 F.3d at 161. To be "compelling, " the evidence must reveal that, " more likely than not, in light of the new evidence, no reasonable juror would find [the petitioner] guilty beyond a reasonable doubt-or to remove the double neuative, that more likely than not any reasonable juror would have reasonable doubt.'" Rivas , 687 F.3d at 541 (quoting House, 547 U.S. at 538); see also McQuiggin , 133 S.Ct. at 1935 (quoting Schlup , 513 U.S. at 327) ("To invoke the miscarriage of justice exception to NEDPA's statute of limitations, ... a petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. The habeas court must "consider a petitioner's claim in light the evidence in the record as a whole, including evidence that might have been inadmissible at trial." Doe , 391 F.3d at 162. Specifically,

[T]he court must consider how reasonable jurors, fairly examining all of the evidence presented, would assess the petitioner's guilt or innocence. In evaluating the record as a whole, the habeas court may make its own credibility determinations as to both the new evidence and the evidence already in the record that may be thrown into doubt by the new material. With respect to the ultimate issue of innocence, however, Schlup does not permit the court to make an independent judgment of whether reasonable doubt exists. but instead requires a probabilistic determination about what reasonable, properly instructed jurors would do. This probabilistic analysis must determine not merely whether a reasonable doubt exists in the light of the new evidence, but rather whether it is more likely than not that no reasonable juror would have found the defendant guilty.

Id. at 163 (internal quotation marks and citations omitted); see also Rivas , 687 F.3d at 547 (quoting House, 547 U.S. at 554) (the evidence must be such that, had the jury heard all the evidence at trial, "it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt'"). This standard requires the petitioner who raises a gateway actual innocence claim "to make a stronger showing than that needed to establish prejudice.'" Rivas , 687 F.3d at 541 (quoting Schlup , 513 U.S. at 327). The "more likely than not" "standard is demanding and permits review only in the extraordinary case.'" Id. at 542 (quoting House, 547 U.S. at 538).

In this case, Petitioner argues that the untimeliness of his habeas petition should be excused via the actual innocence gateway and asserts that the Google Map information and the book discussing driver reaction time constitute both "credible" and "compelling" evidence for purposes of this gateway. Respondent contends that the evidence is neither credible nor compelling. (See Resp't's Mem., at 19-20.) I agree with Respondent and find Petitioner's "new" evidence not compelling.[12]

First, the evidence establishes-at most-a credibility issue with respect to the flagmen's statements to police. It is clear that such credibility evidence "does not compellingly point to [Petitioner]'s innocence" to the extent that Schlup requires. Rivas , 687 F.3d at 546. Absent some other "evidence, [which, ] taken together, [would] raise[] doubts about [his] guilt, " this evidence does not suggest that Petitioner is actually innocent of the crimes. Id, ; see also. e.g, ; Tuitt Martuscello, No. 12 Civ. 1003(CS)(PED), 2013 WL 5508385, at *16 (S.D.N.Y. Oct. 3, 2013) (citing Rivas , 687 F.3d at 545-46) (credibility evidence insufficient to suggest suggest actual innocence).

Second, after considering all of the "new" evidence presented by Petitioner as a whole, along with other relevant information in the record (and without regard to the admissibility of the evidence). Petitioner fails to demonstrate that it is more likely than not that any reasonable juror would have reasonable doubt about his guilt. See Rivas , 687 F.3d at 547; Doe , 391 F.3d at 163. Although the "procedural actual innocence gateway exception applies even when a petitioner's conviction is, as here, the result of a guilty plea, " Stern v. United States, No. 09 Civ. 6044(PAC)(FM), 2013 WL 71773, at *9 n.17 (S.D.N.Y. Jan. 4, 2013) (Report & Recommendation), adopted by 2013 WL 989382 (S.D.N.Y. Mar. 14, 2013); see Bousley, 523 at 623-24, "[t]he Second Circuit has held that a habeas court can consider a guilty plea in the context of making an actual innocence determination, " Bower v. Walsh , 703 F.Supp.2d 204, 227-28 (E.D.N.Y. 2010) (citing Doe , 391 F.3d at 168-69 and Rosario v. United States , 164 F.3d 729, 734 (2d Cir. 1998)). This Court's confidence in the outcome of the proceeding is not sufficiently shaken by any of the evidence identified by Petitioner. First, Petitioner pled guilty and allocuted to the reckless endangerment and aggravated unlicensed operation of a motor vehicle offenses. In particular, he admitted that he drove a Ford Explorer at a high rate of speed through a construction zone, an area where he saw flagmen stationed, while his license was suspended or revoked. (Aug. 16, 2006 T: 9-12.) Second, the flagmen told police that Petitioner ignored their directions, drove fast, and caused them to jump out of the way of his car. Third, the new evidence identified by Petitioner simply does not establish that he did not recklessly drive his vehicle through the construction zone. As noted above, at most his evidence tests the credibility of the fla Ymen"s statements. Without more, Petitioner has not shown a probability that a jury would conclude that he did not commit the offenses he pled guilty to. See, e.g, Kennard V. Connolly, No. 10 Civ. 1561(JKS), 2014 WL 1028880, at *5 (N.D.N.Y. Mar. 14, 2014) (the fact that [petitioner] pled guilty cuts against his actual innocence claims"); Tuitt, 2013 WL 5508385, at *3-4, 17 (taking into account petitioner's guilty plea, among other things, and finding no compelling gateway claim of actual innocence); Desrosiers Phillips, No. 05 Civ. 2941(CBA)(JMA). 2006 WL 2092481, at *8 (E.D.N.Y, July 27 2006) ("In light of his guilty plea, petitioner is hard-pressed to show that it is more likely than not that no reasonable juror would have convicted him.").

Because Petitioner cannot establish a compelling claim of actual innocence, I recommend that the untimeliness of his petition not be excused pursuant to this gateway.

IV. CONCLUSION

For the reasons set forth above. I conclude-and respectfully recommend that Your Honor conclude-that the petition should be DISMISSED as time-barred. Further, because I recommend dismissal of the petition, Petitioner's related requests for reconsideration of his application for bail and for an evidentiary hearing are DENIED as moot. (See Dkts. 17-19, 21, 24.) Finally, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right. I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).


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