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Dizak v. McAuliffe

United States District Court, W.D. New York

May 10, 2017

STUART DIZAK, Petitioner,
v.
BRIAN MCAULIFFE, Respondent.

          DECISION AND ORDER

          LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Pro 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).[1] Docket Item 1 at 1 (¶ 5).

         After 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).[2] 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)).

         On 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.

         For the 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 denied.

         DISCUSSION

         A. Motion to Reconsider

         Dizak 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.

         Preliminarily, 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).

         As to the substance of the petitioner's motion, his vague claims of conflict of interest and bias[3] 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)).

         The 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.[4] Accordingly, there is no reason to reconsider the Northern District's order transferring the petition to this Court, and the petitioner's motion is denied.

         B. AEDPA Statute of Limitations

         1. Grounds One, Three, and Four Are Untimely.

         This 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 ...


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