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Montalvo v. Lavalley

United States District Court, E.D. New York

December 8, 2014


Arturo Montalvo, Petitioner, Pro se, Auburn, NY.

For Thomas LaValley, Respondent: NEW YORK STATE ATTORNEY GENERALS OFFICE - GENERIC, LEAD ATTORNEY, New York State Attorney Generals Office; Thomas C. Costello, LEAD ATTORNEY, Suffolk County District Attorney, Riverhead, NY.


NINA GERSHON, United States District Judge.

By order dated November 10, 2011, the Honorable Sandra J. Feuerstein, district judge, directed the State to file a limited answer to petitioner Arturo Montalvo's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, addressing the petition's timeliness under 28 U.S.C. § 2244(d).[1] For the reasons set forth below, the petition is dismissed as untimely.


1. Trial and Direct Appeal

Following a jury verdict in the County Court, Suffolk County (Ohlig, J.), on February 10, 2003, petitioner was convicted of multiple counts of rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child. On March 10, 2003, he was sentenced to an aggregate period of incarceration of eighty-nine years.

Mr. Montalvo unsuccessfully appealed his conviction to the Appellate Division, Second Department, People v. Montalvo, 34 A.D.3d 600, 825 N.Y.S.2d 101 (2d Dep't 2006), and the New York Court of Appeals denied leave to appeal on February 20, 2007, People v. Montalvo, 8 N.Y.3d 883, 864 N.E.2d 625, 832 N.Y.S.2d 495 (2007). He did not seek certiorari from the Supreme Court of the United States.

2. " Hybrid Article 78" Applications and Related Documents[2]

Petitioner claims that, on February 18, 2008, he filed an Article 78 petition with the Supreme Court, Suffolk County, requesting that it direct " the Suffolk County Attorney to pay for an attorney for [him] to augment the attached C.P.L. § 440.10 application [he] need[s] to file"; " the Suffolk County Attorney to pay for an expert and other services for [him], " including a private investigator to obtain documents; and the Suffolk County Child Protective Services (" CPS") to provide its records and the victims' school records, which he argued were " illegally withheld from [him] during [his] trial." [3] Opposition to Motion to Dismiss, Exhibit A ¶ 1. He asked the court to provide him with these resources, " or alternatively, recognize my attempt, and accept the CPL § 440.10 motion [which he attached] for argument." Id. ¶ 8.

He now describes this filing--comprised of the Article 78 petition, together with the attached § 440.10 application--as a " hybrid Article 78" application, which, " in addition to seeking discovery, also sought to challenge [his] conviction" (" First Hybrid Petition"). Opposition to Motion to Dismiss ¶ 7. He contends that he " specifically incorporated the contents of [his] Article 440.10 application, " since the Article 78 petition noted the constitutional issues addressed in his attached § 440.10 application. Id. ¶ 8. Although Mr. Montalvo has since stated that he brought the First Hybrid Petition as an " order to show cause, " nothing on the face of the document indicates that he did so.[4]

Petitioner claims that he followed up, in writing, with the Supreme Court, Suffolk County, on June 10, 2008 and September 3, 2008, and with the Court Administrator on December 11, 2008, but received no response. The copies of the letters in the record do not contain proof of mailing.

On May 12, 2009, petitioner allegedly filed another " hybrid Article 78" application through an order to show cause with the Appellate Division, Second Department, which was similar to the First Hybrid Petition. He claims that he wrote follow up letters to the Appellate Division on June 8, 2009, December 29, 2009, and June 9, 2010, and to the Court Administrator on October 21, 2010. On September 10, 2011, he allegedly " wrote both courts informing them that if they did not address [his] application for relief within 60 days, [he] was going to initiate Federal Habeas relief." Affidavit in Support of Original Habeas Petition ¶ 13. He did not receive any responses. Petitioner's copy of the June 9, 2010 letter does not contain proof of mailing. He did not submit copies of the remaining letters to this court; they went missing, he asserts, because of " the amount of time which has elapsed and the results of several mishaps with the facility." Amended Habeas Petition at 11.

The state courts did not receive the filings and letters described above. After the State filed its motion to dismiss on November 22, 2011, Mr. Montalvo wrote the New York State Office of Court Administration on December 8, 2011, seeking information regarding the " complaints" he had lodged against the Supreme Court and the Appellate Division " concerning their failure to act on [his] application for an Order to Show Cause as to why [he] should not be assigned an attorney, private investigator and access to the Suffolk County CPS records related to [his] instant offense for the preparation of a CPL § 440.10 application." Respondent's Supplemental Submission, Ex. B. The Office of Court Administration forwarded Mr. Montalvo's December 8, 2011 letter to Marian Tinari, Esq. of the District Administrative Judge's Office for the Unified Court System of Suffolk County. She responded to petitioner on December 15, 2011:

Although your letter indicates you have written four complaints to, respectively, the Suffolk County Supreme Court and the Appellate Division, Second Department, there is no reference information provided to investigate your inquiry. Upon receipt of such information, I will [be] better able to respond to your complaints.


In a subsequent letter, dated July 9, 2014, after the parties were asked to amplify the record, Ms. Tinari asserted that her office's records contain only Mr. Montalvo's letter and her response to him in December 2011, described above. She also stated:

I have made an inquiry to the Suffolk County Supreme Court Clerk who, after a check of the Supreme Court data base, has ascertained that nothing resembling the type of motion described [a " hybrid Article 78" application] has been filed in that Court by Mr. Montalvo, nor did a search by the Chief Clerk of Suffolk County Clerk's office data base reveal the existence of any documents. Finally, the Suffolk County Court's Special Term Clerk conducted a physical search of the criminal court file which failed to reveal any paperwork which could be identified as a hybrid Article 78 petition.


In response to the court's request that the parties amplify the record, the State also submitted a letter from Aprilanne Agostino, Clerk of the Appellate Division, Second Department, dated June 25, 2014, stating, " This Court has no record of Mr. Montalvo ever having filed, or attempting to file, a proceeding pursuant to CPLR Article 78, or of any inquiry by Mr. Montalvo into the status of any such proceeding." Id., Ex. A. The Appellate Division's records show only one letter from petitioner, dated December 8, 2011, which requested " a copy of the Order to Show Cause I submitted and several letters I sent to this Court in my criminal matter." Id. Ms. Agostino provided a copy of this letter, as well as her office's response that it had no record of having received the documents described in petitioner's December 8, 2011 letter.

Petitioner argues that the prison mailroom at Clinton Correctional Facility misplaces inmates' papers, and that, despite his efforts, the petitions may not have been mailed. In a sworn declaration, dated July 14, 2014, petitioner describes ...

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