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Ocasio v. Lee

United States District Court, S.D. New York

February 2, 2017

RONALD OCASIO, Petitioner,
v.
WILLIAM LEE, Respondent.

          MEMORANDUM OPINION AND ORDER

          JESSE M. FURMAN, United States District Judge

         In 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.

         BACKGROUND

         On July 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).

         Consistent 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.

         On 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).

         Ocasio 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).

         DISCUSSION

         With 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 dates:

(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 ...


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