United States District Court, W.D. New York
DECISION AND ORDER
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE
se petitioner Stuart Dizak has petitioned this Court,
pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his conviction entered in Monroe County
Court (State of New York) on October 23, 2009. Docket Item 1.
There he was convicted upon a jury verdict of two counts of
conspiracy to commit murder in the second degree (N.Y. Penal
Law § 105.15) and two counts of criminal solicitation in
the second degree (id. § 100.10). Docket Item 1 at
1 (¶ 5).
initial review, on June 24, 2016, this Court dismissed Ground
Two of the petition-the omission of “jury note
#1” from the trial transcript-because Dizak was plainly
not entitled to relief under § 2254 on that ground.
Docket Item 13 at 7-11; see 28 U.S.C. § 2243;
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. This Court also observed that
the petition's remaining grounds apparently were time
barred pursuant to 28 U.S.C. §
2244(d)(1)(A). Id. at 13. Consistent with the
directive of the Second Circuit, however, this Court did not
dismiss the petition but instead provided Dizak an
opportunity to be heard and ordered him to show cause why the
remaining grounds of the petition should not be dismissed as
time barred. See Acosta v. Artuz, 221 F.3d 117,
124-26 (2d Cir. 2000); Docket Item 13 at 12-13. Dizak was
invited specifically to address any issues relevant to
timeliness, including “equitable tolling” or any
exception to the statute of limitations. Id. at 13
(citing Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000) (equitable tolling) and McQuiggin v. Perkins,
133 S.Ct. 1924, 1931-36 (2013) (actual innocence)).
August 1, 2016, Dizak filed a motion to reconsider the order
of the Northern District of New York transferring the
petition to this Court. Docket Item 17. In addition, he
replied to this Court's Decision and Order on August 29,
2016. Docket Item 23. Both before and after that date, he
also filed a number of letters and submissions addressing the
issues raised in this matter. See Docket Items 8,
10-11, 14, 16, 18, 20, 22, 24-26.
following reasons, Dizak's motion to reconsider is
denied, and Grounds One, Three, and Four of the petition are
dismissed as untimely pursuant to 28 U.S.C. §
2244(d)(1)(A). Because Ground Two of the petition was
dismissed for the reasons stated in this Court's June 24,
2016 Decision and Order, the petition now is denied in all
respects; in addition, a certificate of appealability is
denied and leave to appeal in forma pauperis also is
Motion to Reconsider
argues that the Northern District did not realize at the time
of transfer that there was “a potential conflict of
interest” and “possible bias” in this
Court. Docket Item 17 at 1 (“[O]ne or more jurists . .
. were friends/associates with a principal involved in my
conviction . . . .”). He claims that this Court's
June 24, 2016 Decision and Order confirms that conflict of
interest by prematurely concluding that he had failed to make
a credible showing of actual innocence and by
“fail[ing] to address or acknowledge two additional
submissions of newly discovered evidence.” Id.
this Court notes that, pursuant to 28 U.S.C. § 1404(a),
it has jurisdiction to adjudicate the petitioner's motion
to reconsider the Northern District's order transferring
the petition to the Western District of New York. See
Lothian Cassidy, LLC v. Lothian Exploration & Dev. II,
L.P., 89 F.Supp.3d 599 (S.D.N.Y. 2015) (the transferring
court loses its jurisdiction over the case once transfer is
ordered and the files are physically transferred to the
receiving court, unless that order is void).
the substance of the petitioner's motion, his vague
claims of conflict of interest and bias are unsupported
and provide no basis for this Court to reconsider the
Northern District's transfer order. Clearly, Dizak
disagrees with this Court's Decision and Order. But a
“motion for reconsideration is not a device intended to
give an unhappy litigant one additional chance to sway the
judge.” See Nossek v. Bd. of Educ. of Duanesburg
Cent. Sch. Dist., 1994 WL 688298, at *1 (N.D.N.Y. Nov.
10, 1994) (quoting Durkin v. Taylor, 444 F.Supp.
879, 889 (E.D.Va.1977)).
petitioner has not provided any specifics that might give
rise to the recusal of any judge in this district, let alone
the undersigned. See 28 U.S.C.§ 455(b). Nor
does this Court's earlier Decision and Order, although
unfavorable to the petitioner, reasonably suggest that this
Court is biased against him. Accordingly, there is no reason
to reconsider the Northern District's order transferring
the petition to this Court, and the petitioner's motion
AEDPA Statute of Limitations
Grounds One, Three, and Four Are Untimely.
Court's prior Decision and Order specifically addressed
the one-year period of limitations applicable to a state
prisoner's petition for a writ of habeas corpus set forth
in the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1), and it
explained why the petition at bar appeared to be untimely.
See Docket Item 13 at 2-7. Under §
2244(d)(1)(A), the period of limitations runs from “the
date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review.” Dizak's conviction therefore became
“final” on February 17, 2013-90 days after he
finally was denied leave to appeal to the New York Court of
Appeals. See Epps v. Poole, 687 F.3d 46, 49 (2d Cir.
2012) (stating petitioner's conviction became
“final” three months after the appellate court
denied him leave to appeal). Once the New York Court of
Appeals denied his motion for reconsideration of the order
denying him leave to appeal, Dizak had 90 ...