United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
M. FURMAN, United States District Judge
1994, Petitioner Ronald Ocasio was convicted in state court
of second degree murder and sentenced principally to a prison
term of twenty-two years to life. (Docket No. 13 (“Am.
Pet.”) 1). Proceeding pro se, he now
challenges that conviction through a petition for the writ of
habeas corpus brought pursuant to Title 28, United States
Code, Section 2254, arguing primarily that his counsel was
ineffective for failing to perfect his appeal. (See
Id. at 2). It is hard to see the point of the challenge,
as Ocasio was convicted of various federal offenses four
years after his state conviction and is serving a federal
sentence of life plus forty-five years' imprisonment that
would remain in effect even if he were successful here. But
Ocasio's petition fails for a simple reason other than
pointlessness: Coming eighteen years after his state
conviction became final, it is patently untimely.
Accordingly, and for the reasons stated below, the Petition
must be and is dismissed.
14, 1994, judgment was entered in New York Supreme Court,
Bronx County, convicting Ocasio, after a jury trial, of
second-degree murder and sentencing him principally to a
prison term of twenty-two years to life. (Am. Pet. 2). Ocasio
retained Steven R. Kartagener, Esq., to represent him on
appeal. (Id. at 3). Kartagener filed a notice of
appeal, which, although dated August 12, 1994, was stamped as
received by the Supreme Court on August 16, 1994.
(Id., Ex. 1 at 30). Thereafter, however, the appeal
was left to languish as Kartagener never filed a brief or
appendix; nor did the appellate court ever formally dismissed
it. (Am. Pet. 4). According to Kartagener, he and Ocasio
jointly decided not to pursue the state-court appeal because
of the intervening federal indictment, which eventually
resulted in Ocasio's conviction on multiple counts of
murder, attempted murder, and narcotics trafficking and the
sentence of life plus forty-five years' imprisonment.
(Docket No. 19 (“Chamoy Decl.”) Ex. 1 at 13). As
Kartagener explained, Ocasio “acknowledged that it made
absolutely no sense for him to proceed with his state-court
appeal unless and until” his federal conviction was
vacated. (Id. at 3).
with Kartagener's description, Ocasio focused his efforts
in the years following his convictions on obtaining relief
from his federal conviction and sentence, all to no avail.
Assisted by Kenneth D. Wasserman, Esq., he filed a direct
appeal to the United States Court of Appeals for the Second
Circuit, which affirmed his conviction on September 29, 2000.
See United States v. Carrillo, 229 F.3d 177 (2d Cir.
2000). Thereafter, assisted by Kartagener, Ocasio filed a
motion to vacate his federal conviction pursuant to Title 28,
United States Code, Section 2255. (Chamoy Decl., Ex. 1 at
29). On August 9, 2012, the Honorable Debra A. Batts, United
States District Judge for this District, denied the motion.
See Ocasio v. United States, No. 08-CV-1305 (DAB),
2012 WL 3245419, at *1 (S.D.N.Y. Aug. 9, 2012). Between 1994
and 2012, Ocasio made no effort - either pro se or
through counsel - to pursue his state appeal. Nor is there
any indication that he asked Kartagener or a court about the
status of his state appeal prior to 2012.
September 25, 2012, more than eighteen years after his notice
of appeal was filed, Ocasio wrote to the Supreme Court of the
State of New York, Appellate Division, First Department
(“First Department”) to inquire about the status
of his state appeal. (Am. Pet., Ex. 1 at 37). He wrote again
on October 16, 2012 (id. at 38), and December 11,
2012 (Chamoy Decl., Ex. 3). On February 13, 2013, having
received no response to his letters, Ocasio filed a petition
for a writ of error coram nobis in the First
Department, alleging that he had received ineffective
assistance of counsel because Kartagener had abandoned his
direct appeal. (Am. Pet., Ex. 1 at 6, 11). The First
Department treated Ocasio's letters as a motion for an
extension of time to file a notice of appeal, and on February
20, 2014, the First Department denied that motion and his
writ of error coram nobis. (Am. Pet. 50).
Thereafter, Ocasio requested leave to appeal the First
Department's rulings, which the New York State Court of
Appeals denied on May 27, 2014. (Id., Ex. 3 at 44).
filed the present Petition on July 8, 2014. (Docket No. 1).
On December 2, 2014, the Honorable Loretta A. Preska, then
Chief Judge, ordered Ocasio to amend his Petition to allege
facts showing “why his petition is timely” and
any “facts that show that he has been pursuing his
rights diligently and that some extraordinary circumstance
prevented him from timely submitting his petition.”
(Docket No. 6, at 4). On April 1, 2015, Ocasio filed the
operative Amended Petition. Liberally construed, it presents
three arguments for why it should be deemed timely: (1)
because his conviction is still not final (see id.
at 13); (2) because the First Department's lack of
decision on his appeal was an impediment to filing and thus
tolled the limitations period (see Id. at 14); and
(3) because he did not discover that Kartagener had failed to
perfect the appeal until one year before filing this petition
(see Id. at 17). Petitioner also argues that he is
entitled to equitable tolling. (See Id. at 8-11).
the passage of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214, on April 24, 1996, Congress established a
one-year statute of limitations for the filing of a habeas
petition by a person in custody pursuant to a state court
conviction. See 28 U.S.C. § 2244(d)(1). The
one-year period runs from the latest of the following four
(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.
Id.; see also Id. § 2244(d)(2)
(providing that “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”). A prisoner whose
conviction became final prior to AEDPA's effective date
of April 24, 1996, was granted a one-year “grace
period” - to April 24, 1997 - in which to file a habeas