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Arias v. Connolly

United States District Court, E.D. New York

November 21, 2017

PIERRE ARIAS Petitioner,
WILLIAM CONNOLLY, Superintendent, Fishkill Correctional Institute, Respondent.


          NICHOLAS G. GARAUFIS, United States District Judge.

         Before 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.

         I. BACKGROUND

         Petitioner 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).)

         Defendant 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.

         On 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, 49(2dCir.2012).

         On 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.)

         At the 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 ...

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