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Nolley v. Hill

United States District Court, W.D. New York

March 7, 2017

QUINCY D. NOLLEY, Petitioner,


          HON. MICHAEL A. TELESCA United States District Judge


         Quincy D. Nolley (“Petitioner” or “Nolley”), an inmate in the custody of New York State Department of Corrections and Community Supervision (“DOCCS”), filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Section 2254”) that was dismissed on June 12, 2012, by this Court. Petitioner now has moved to vacate the judgment against him or, alternatively, to have his motion to vacate characterized as a new habeas petition under Section 2254.


         Petitioner currently is incarcerated pursuant to a judgment of conviction entered against him on November 22, 1993, in Erie County Court of New York State, following a guilty plea to one count of attempted second degree murder and one count of first degree robbery, in satisfaction of a fifteen-count indictment. On November 22, 1993, the trial court (Kubiniec, J.) sentenced Nolley. Believing him to be a second felony offender, Judge Kubiniec imposed two consecutive terms of 7-1/2 to 15 years, stating that “[e]ach sentence [is] to be served consecutively. Consecutive sentences.” S.15. Prior to the conclusion of the sentencing hearing, the parties alerted the judge to the fact that Nolley was not a predicate felon but instead was a first felony offender. The judge then stated, “This sentence just imposed is set aside and revoked, and the Court re-sentences as follows[, ]” and went on to sentence Nolley to longer sentences on the two convictions, namely, 7-1/2 to 22-1/2 years. S.16-17.[1] Judge Kubiniec did not state whether the revised sentences were to be served concurrently or consecutively. S.17. The Erie County Clerk issued the sentence and commitment papers later that day (November 22, 1993); these documents stated that the sentences for the two convictions were consecutive.

         On January 8, 1997, Petitioner brought a pro se motion to set aside the sentence pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.20, contending that since Judge Kubiniec, in correcting its original sentence, did not specifically reiterate that the terms were to be served consecutively, the sentences necessarily must run concurrently. See Respondent's Exhibit (“Resp't Ex.”) B, submitted in connection with Respondent's Answer. By the time Petitioner filed this motion, Judge Kubiniec was deceased. Erie County Court Judge John V. Rogowski heard the motion and held, based on his review of the sentencing transcript, that Judge Kubiniec's “intent was abundantly clear.” C.P.L. § 440.20 Order at 3, Resp't Ex. B. Judge Rogowski explained that Judge Kubiniec, “[h]aving already indicated that defendant should serve consecutive prison terms, . . . merely amended the length of each sentence to reflect defendant's first-time felon sentence.” Id. Judge Rogowski also rejected the claim that consecutive sentences were illegal, finding that the crimes to which Nolley pled guilty were “distinguishable by ‘culpable mental state, nature and manner of use, time and place of victim'” and therefore discretionary imposition of consecutive sentences was appropriate “when all of the facts and circumstances of this case [we]re assessed.” C.P.L. § 440.20 Order at 4 (quotation omitted), Resp't Ex. B. The Appellate Division, Fourth Department, of New York State Supreme Court denied leave to appeal on September 29, 1997.

         Petitioner apparently sought advice from his appellate counsel in early 2002, about challenging the state courts' rulings that his sentences were to run consecutively. On May 31, 2002, appellate counsel sent a letter to Petitioner, stating that “[r]eading the [sentencing] transcript raises at least the argument that your sentences are to run concurrently because consecutive sentencing was not specified.” Letter from Attorney Druar to Petitioner dated 5/31/02, attached to Dkt #10. Attorney Druar explained that Nolley could file a state habeas corpus petition “based upon the claim that your detention beyond seven years . . . is illegal.” Id. Druar requested that Nolley send him a copy of “whatever it was [he] did file” and the resulting order. Id.

         In the next correspondence from Attorney Druar that Nolley has provided to the Court, the attorney states that he did not think Nolley's remedy lay with an appeal of the “decision of Judge Skretny of the U.S. District Court.”[2] He reiterated that Nolley's best remedy was a habeas corpus such as the one that Nolley had prepared or had someone prepare for him on November 27, 2001, and apparently submitted to Attorney Druar to review. Attorney Druar explained that the petition raised the correct issue and raised it in the correct court. He proposed that the petition, if it had not been filed, be sent to the assigned counsel program for appointment of state habeas counsel on Nolley's behalf.

         However, it appears that such a petition was never filed by Nolley or by anyone on his behalf in state court, and Nolley apparently declined to take Attorney Druar's advice. On August 27, 2002, Attorney Druar wrote to Nolley, informing him that his habeas corpus petition should have been filed with the New York State Supreme Court. He also stated that Nolley's case could be initiated as a proceeding under Article 78 of the New York Civil Practice Law and Rules (“C.P.L.R.”) if Nolley wrote to the parole board and demanded an interview because he had served more than the minimum term imposed. In the alternative, the sentencing transcript could be sent to the department of corrections requesting that the sentence be re-computed. Attorney Druar closed by saying, “I don't mean to confuse but one of these steps must be taken.” The next correspondence from Attorney Druar was dated July 14, 2004, in response to a letter from Nolley enclosing some type of legal papers. Attorney Druar asked if it had been submitted to New York State Supreme Court or Federal court. He instructed Nolley to have the papers signed before a notary and returned to him for filing, if they had not already been filed in state court. It is not clear whether Nolley ever followed the directions issued by Attorney Druar.

         The final correspondence from Attorney Druar, attached by Nolley to Dkt #10, is a letter dated July 29, 2004, to the New York State Division of Parole (“the Parole Division”), asking that the circumstances of Nolley's commitment be reviewed in light of the sentencing judge's silence as to whether the sentences were concurrent or consecutive. Attorney Druar noted that under the version of New York Penal Law (“P.L.”) § 70.25(1) then in effect, the terms accordingly were to be served concurrently, which meant that Nolley had been eligible for parole since 2001. Evidently, the Parole Division did not take any favorable action in response to Attorney Druar's letter.

         On March 5, 2010, Nolley filed a pro se “Motion to Correct Mistakes, Omis[s]ions, Defects, and Irregularities” in New York State Supreme Court (Erie County), pursuant to C.P.L.R. § 2001.[3]The motion court (Wolfgang, J.) denied the application on June 22, 2010. See Resp't Ex. C. Justice Wolfgang found that the claim was “contradicted by the record” which indicated that the sentencing court “implicitly intended, as it had stated prior to the amendment [of the sentence] that the sentences were to be served consecutively.” C.P.L.R. § 2001 Order at 2, Resp't Ex. C. Petitioner did not seek leave to appeal this decision.

         Nolley then instituted the instant habeas proceeding by means of a petition that was received by the Court on August 3, 2011. Nolley raised two grounds for relief: (1) the trial court did not actually state, on the record, that his sentence was to be served consecutively, and therefore, by operation of law, the sentences must run concurrently; and (2) the imposition of consecutive sentence was contrary to law under the facts of his case. This Court found that the petition was untimely under 28 U.S.C. § 2244(d)(1), and that Nolley was not entitled to have the statute of limitations equitably tolled. The Court dismissed the petition and declined to issue a certificate of appealability. Judgment was entered in Respondent's favor on June 13, 2012. Petitioner did not file a notice of appeal.

         On January 15, 2017, Petitioner filed a Motion for Leave to Proceed In Forma Pauperis (Dkt #14) and a Motion to Vacate (Dkt #15) the Decision and Order dismissing his habeas petition. Petitioner argues that the Court used the incorrect start date for the statute of limitations, and that his petition is timely. Alternatively, Petitioner requests that the Motion to Vacate be recharacterized as a new (not second or successive) Section 2254 petition. On February 7, 2017, Respondent filed an Affidavit in Opposition (Dkt #16) to Petitioner's Motion to Vacate. Petitioner filed a Reply Affidavit (Dkt #19) on February 18, 2017. Petitioner's motions were deemed submitted on February 22, 2017. For the reasons discussed below, the motions are denied.


         I. Timeliness of the Petition

         A. The Statute of Limitations

         AEDPA[4] amended the federal habeas statute to impose a one-year limitations period on habeas petitions. See 28 U.S.C. § 2244(d)(1)(A)-(D); Bennett v. Artuz, 199 F.3d 116, 118 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). The one-year statute of limitations applies to a habeas claim, such as that alleged by Nolley, regarding alleged unauthorized acts by NYSDOCCS. See James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (holding that a state prisoner's claim that NYSDOCCS ...

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