United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
the court is Petitioner Pierre Arias's prose
motion, pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure, for relief from the dismissal of his petition for
habeas corpus (the "Petition") as untimely. (See
Feb. 26, 2016, Min. Entry; Clerk's J. (Dkt. 9);
Pet'r's Mot to Vacate Clerk's J.
("Mot.") (Dkt. 13).) For the reasons that follow,
the motion is DENIED.
is a prisoner at the Fishkill Correctional Facility, where he
is currently serving a sentence of fifteen years to life in
prison following his convictions in the New York Supreme
Court, Queens County, for murder in the second degree and
attempted murder in the second degree. See People v.
Arias. 64 A.D.3d 786 (N.Y.App.Div. 2009) (affirming the
judgment of conviction). (Pet. For Habeas Corpus
("Pet.") (Dkt. 1) at 1.) According to the evidence
presented at his trial, Petitioner and several friends went
to see a movie at a theater in Forest Hills, Queens, late on
the night of December 23, 2004. (E.g., Tr. of Test,
of Herman Gerardi ("H. Gerardi Test.") (Dkt. 7-8)
1129:23-1136:21 (ECF pp. 1304-11).) At the movie theater, one
of Petitioner's friends, Daniel Cho, picked a fight with
another moviegoer, Davey Adams, whom Cho did not know. (Kg,,
Tr. of Test, of Francis Lopez ("Lopez Test.") (Dkt.
7-7) 844:12-847:13 (ECF pp. 1021-24).) After the movie ended,
Cho and another of Petitioner's friends, Peter Gerardi,
accosted Adams outside the theater and demanded that he fight
them. (Lopez Test. 852:7-858:7 (ECF pp. 1029-35); Tr. of
Test, of Eduardo Avilez (Dkt. 7-10) 1377:1-1380:25 (ECF pp.
1552-55).) Adams attempted to deflect these provocations, but
after Gerardi "sucker-punched" him, a brawl ensued
between Petitioner and his friends, on the one hand, and
Adams and his friends, on the other. (Lopez Test.
864:14-880:7 (ECF pp.1041-57); Tr. of Test, of Yadjiel
Collado ("Collado Test.") (Dkt. 7-9)
1270:16-1278:14 (ECF pp.1445-53).) During the melee, Adams
was stabbed in the abdomen and back, and his friends Yadjiel
Collado and Francis Lopez were stabbed in the arm and back
and slashed on the head, respectively. (E.g., Tr. of
Test. of Roman Shakh (Dkt. 7-5) 577:7-10 (ECF p. 754); Lopez
Test. 884:10-20, 919:19-2 (ECF pp.1061, 1096); Collado Test.
1279:2-3, 1280:20-1283:3 (ECF pp. 1454, 1455-58).) Adams died
from his wounds. (Tr. of Test, of Sean Kelly (Dkt. 7-9)
1345:20-1346:17 (ECF pp.1521-22).) The prosecution presented
extensive evidence that Petitioner-who was 15 years old at
the time-was responsible for stabbing Adams, Collado, and
Lopez. (E.g., Tr. of Test, of Giselle Guzman (Dkt.
7-6) 738:4-22, 743:14-745:10 (ECF pp.915, 920-22); Lopez
Test. 867:22-868:25 (ECF pp.1044-45); Collado Test.
1276:6-1279:8 (ECF pp.1451-54); H. Gerardi Test. 1141:2-8,
1150:8-13, 1154:15-1155:18 (ECF pp.1316, 1325, 1329-30);
Sept. 12, 2006, Trial Tr. (Dkt. 7-12) 1714:3-5 (ECF p.1889).)
was tried and, on September 12, 2006, convicted.
(Id. 1709:12-25 (ECF p.l 884.) Petitioner timely
appealed to the Appellate Division. In his brief, Petitioner
argued that (1) the trial court erred by giving an
"acting in concert" instruction; (2) the
prosecution had failed to establish that he possessed the
requisite mens rea; and (3) the verdict was against the
weight of the evidence. (See Appellant's Br. (Dkt. 7) at
26, 38, 46 (ECF pp.68, 80, 88).) On July 28, 2009, the
Appellate Division affirmed his conviction, concluding that
the trial court's charge to the jury regarding
"acting in concert" was not improper; that
Petitioner's mens rea argument was not preserved for
appeal and, in any event, was unmeritorious; and that the
weight of the evidence supported the jury's guilty
verdict. See Arias, 64 A.D.3d at 786.
January 27, 2014-more than four years after the Appellate
Division denied his appeal-Petitioner sought leave to appeal
from the Court of Appeals. (Notice of Mot. (Dkt. 7) at ECF
p.l 14; Pet'r Aff. (Dkt. 7) at ECF p.l 16.) Respondent
opposed Petitioner's request for leave to appeal as
untimely. See N.Y. Crim. Proc. L. 460.10(5) (authorizing a
defendant to seek leave to appeal from the Court of Appeals
"[w]ithin thirty days after service upon the appellant
of a copy of the order sought to be appealed").
(Resp't Opp'n to Leave to Appeal (Dkt. 7) at ECF p.
120.) The Court of Appeals summarily denied Petitioner leave
to appeal on April 14, 2014. People v. Arias, 9
N.E.3d 912 (N.Y. 2014). Petitioner's conviction thus
became final, for purposes of federal habeas review, on July
13, 2014, when his time for seeking a writ of certiorari from
the U.S. Supreme Court expired. See 28 U.S.C. §
2244(d)(1)(A); Epps v. Poole, 687F.3d46,
August 30, 2015-more than thirteen months after his
conviction became final- Petitioner filed his prose
petition for habeas corpus. The petition asserted three
grounds for relief, which tracked the headings of
Petitioner's brief to the Appellate Division.
(Compare Appellant's Br. at i-ii (ECF pp.41-42),
with Petition at 7-8.) Respondent moved to dismiss
the petition as untimely. (Mot. to Dismiss (Dkt. 6).)
Petitioner did not respond to the motion. At oral argument on
the petition, held before Judge John Gleeson of this district
on February 26, 2016, however, Petitioner argued that the
court should toll the applicable statute of limitations
because, while he was being transferred between prison
housing units on April 17, 2015, he misplaced an unmarked bag
containing his legal research (his "draft bag"),
which a corrections officer then moved to a storage room:
THE COURT: So the People, through Ms. Abbot, are claiming
that you had one year from July 13, 2014, to file your
petition, but you filed it later than that, so I should kick
it out on statute of limitations grounds. What do you say?
What is your response to that?
MR. ARIAS: I say, well, something had happened, had occurred
during a movement within the facility where I was actually
missing a lot of my-all of my legal documents. I got
transferred on 4/17 from one housing unit, from one building
to another building, and some property wasn't-all of my
property was not given to me.
And I wrote the counselors, I wrote the head counselor here,
Mr. Eddie, concerning-you know, all he really had to do was
ask the officers who were present, because they had found my
bag in a storage closet.
Since Pm not moving from facility to facility, they don't
put name tags on the bags. So they just took a bag and they
put it along with other property. And it was held, I believe,
approximately like 60- a little over 60 days. And when it was
found, it was returned to me.
But that's where I had all of my highlighted case law,
all my notes, everything that I was trying to argue. And that
did hinder my process a lot.
(Tr. of Oral Arg, Feb. 26, 2016 ("Tr. of Oral
Arg.") (Dkt. 11) 4:24-5:21.)
end of oral argument, Judge Gleeson dismissed the petition as
untimely, concluding that Petitioner's explanations
regarding his lost draft bag "don't constitute
grounds for tolling at all, in my view, and not for a
sufficient period even if they had merit to render the
petition timely." (Id. 10:19-11:19.) In
particular, Judge Gleeson questioned Petitioner as to why,
even assuming that he lacked access to his legal materials
from mid-April until mid-June 2015, Petitioner was prejudiced
in his ability to file a ...