Finster v. Eckert
| Decision Date | 14 April 2020 |
| Docket Number | 9:18-CV-1487 (TJM) |
| Parties | FRANCIS FINSTER, Petitioner, v. STEWART ECKERT, Superintendent, Respondent. |
| Court | U.S. District Court — Northern District of New York |
MATTHEW B. KELLER, ESQ.
Ass't Attorney General
Petitioner Francis Finster seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet."); Dkt. Nos. 1-2-1-3, Exhibits. On January 3, 2019, the Court directed petitioner to file an affirmation explaining why the statute of limitations should not bar his petition. Dkt. No. 4, Decision and Order ("January Order").1 Petitioner timely filedsaid affirmation. Dkt. No. 5, Affirmation ("Aff."). The Court then directed respondent to answer the petition. Dkt. No. 6, Decision and Order dated 02/11/10 ("February Order").
Respondent opposed the petition. Dkt. No. 13, State Court Records; Dkt. No. 15, Memorandum of Law in Opposition ( ); Dkt. No. 16, Answer. Petitioner filed a reply. Dkt. No. 23, Traverse.
For the reasons which follow, the habeas petition is denied and dismissed.
The underlying facts of the criminal conviction are not presently in dispute. Petitioner was "convict[ed] . . . upon his plea of guilty of [a] course of sexual conduct against a child in the first degree [in violation of New York] Penal Law § 130.75(1)(b)[.]" People v. Finster, 136 A.D.3d 1279, 1280 (4th Dep't 2016) (internal quotation marks omitted).
Petitioner appealed the conviction arguing that (1) the waiver of his right to appeal was invalid because (a) it was not knowing, voluntary, or intelligently made and (b) it was jurisdictionally defective; and (2) his sentence was unduly harsh and severe. SCR at 3-11 (); Id. at 80-91 (); accord Finster, 136 A.D.3d at 1280. The People opposed the appeal. SCR at 69-79.2 On February 5, 2016, the Appellate Division, Fourth Department unanimously affirmed the petitioner's conviction. Finster, 136 A.D.3d at 1280. Then, on April 29, 2016, the Fourth Department also denied petitioner's motion for reargument. People v. Finster, 138 A.D.3d 1514 (4th Dep't 2016).
Petitioner filed both a counseled and pro se application for leave to appeal with theNew York State Court of Appeals. SCR at 96-98 (counseled application); Id. at 99-102 (pro se application). On June 13, 2016, the Court of Appeals denied petitioner's application. People v. Finster, 27 N.Y.3d 1132 (2016).
Following the direct appeal, on February 13, 2017, petitioner filed a motion to vacate his judgment pursuant to New York Criminal Procedure Law ("CPL") § 440 ("440 motion"). SCR at 102-113 (440 motion); Id. at 114-137 (exhibits); Id. at 138-147 ().3 Petitioner argued that he was entitled to relief because (1) the waiver in the state court record was "not [an] accurate or a true reflection as to when or where the waiver of indictment was actually signed" and (2) his counsel was ineffective. Id. at 110-112. The People again opposed the motion. Id. at 148-152. Petitioner filed a reply. Id. at 153-56.
On June 5, 2017, the Oneida County Court denied petitioner's 440 motion. SCR at 157-180. On August 27, 2017, petitioner sought leave to appeal the denial from the Appellate Division. Id. at 181 (cover letter); id. at 182-197 (); id. at 198-275 (exhibits). On October 4, 2017, the Fourth Department denied petitioner's request. Id. at 276. Petitioner then sought leave to appeal from the Court of Appeals; however, the application was dismissed on January 8, 2018. Id. at 278-84 (); id. at 285 (Court of Appeals Decision); see also People v. Finster, 30 N.Y.3d 1104 (2018).
Petitioner then filed the present action. The January Order provided petitioner with an opportunity to explain why his petition should not be dismissed as untimely. January Order at 3-6. Petitioner's affidavit outlined petitioner's "vigorous" attempts to exhaust hisadministrative remedies. Aff. at 2. Petitioner relies upon two arguments for continuing this action.
Liberally construing the first argument, petitioner asserts that his numerous attempts to retrieve information about his waiver of indictment from a variety of sources entitles him to equitable tolling. Aff. at 3-4. Specifically, petitioner wrote to (1) his appellate counsel, on August 8, 2016, and August 24, 2016, seeking clarification regarding the waiver of indictment (Dkt. No. 5-1 at 18-19); (2) the Oneida County Clerk, on September 10, 2017, and November 2, 2017, seeking a copy of the waiver of indictment (Dkt. No. 5-1 at 2-3); (3) the Oneida County Executive, County Attorney, and Committee on Open Government, on August 26, 2018, asking for assistance in compelling the County Clerk to release the aforementioned waiver (id. at 8-10); and (4) the Oneida County Public Defender, on October 8, 2018, seeking clarification on the indictment waiver (id. at 15-16).
The second argument petitioner advances is that his state court collateral attack is still pending because petitioner is awaiting a decision on the motion to reargue his 440 denial which he filed with the Oneida County Court on July 3, 2017. Dkt. No. 5-1 at 26-32. Therefore, petitioner contends that the statute of limitations remains tolled. Petitioner states that the motion was also served on the Oneida County District Attorney's Office on July 3, 2017. Id. at 31. Petitioner represents that he filed several inquiries with the Oneida County Court, seeking status updates. Id. at 32-35. Specifically, petitioner sent a letters on September 30, 2017; December 22, 2017; January 1, 2018; and February 4, 2018, which were all of similar sum and substance. Id. Namely, petitioner was requesting that the court acknowledge receipt of the motion to reargue and advise him of the People's response date. Id. Petitioner represents that he has still not received a response from either the OneidaCounty Court or the District Attorney's Office; furthermore, no such responses were included in the State Court Record provided by the respondent.4
Petitioner contends that he is entitled to federal habeas relief because (1) he "was deprived of due process . . . based upon the failure of the state to secure an indictment by Grand Jury, or . . . [properly] execute a valid waiver of indictment[,]" which would have granted the state court the requisite jurisdiction to impose judgment (Pet. at 5-7, 16-18) and (2) petitioner's trial counsel was ineffective (id. at 7-8, 18-19). For a complete statement of petitioner's claims, reference is made to the petition and memorandum of law.
Respondent opposes the petition, arguing that it is untimely and that relief is unavailable for petitioner's claims. See Resp. Mem. Specifically, with respect to the substance of petitioner's claims, respondent asserts that (1) petitioner's due process claim is unexhausted and procedurally defaulted, not cognizable, and meritless; and (2) petitioner's ineffective counsel claim is meritless. Id at 15-26.5
Petitioner's reply did not focus on the issue of timeliness; instead, he concentrated on the merits of his petition. See generally Traverse. Specifically, petitioner argued that he was still entitled to relief because (1) his due process claims had merit and were cognizable as the issue of whether a state court properly exercised jurisdiction always conjures up important federal due process questions (id. at 2); (2) petitioner's preclusion from litigatingthe jurisdiction issue represents its own constitutional due process claim (id. at 3); (3) petitioner's guilty plea did not foreclose habeas relief (id. at 4); and (4) the state court's denial of petitioner's ineffective counsel claims was based on an unreasonable application of Strickland (id.).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, established a one-year statute of limitations for prisoners to seek federal review of their state court criminal convictions. 28 U.S.C. § 2244(d)(1). The one-year period generally begins to run from the date on which the state criminal conviction became final by the conclusion of direct review or by the expiration of the time to seek direct review. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 & n.9 (2012).6
For purposes of section 2244, a state conviction becomes "final" when the United States Supreme Court denies an application for a writ of certiorari or when the time to seek certiorari has expired, which is ninety days after the date on which the highest court in the state has completed direct review of the case. Gonzalez, 565 U.S. at 150; Saunders v. Senkowski, 587 F.3d 543, 547-49 (2d Cir. 2009).
In this case, petitioner's conviction was affirmed by the Court of Appeals on June 13, 2016. Pet. at 2; Finster, 27 N.Y.3d at 1132. Petitioner did not seek a writ of certiorari; therefore, Petitioner's conviction became "final" for purposes of the AEDPA ninety days later,on September 12, 2016, when the time to seek certiorari expired. Thaler, 565 U.S. at 149; accord Pet. at 3.7 Petitioner had one year from that date, or until September 12, 2017, to file a timely federal habeas petition. The present petition, signed on December 5, 2018,8 is approximately fifteen months too late.
The one-year limitation period under AEDPA is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); Saunders, 587 F.3d at 548. "An application for state review is 'pending' until it has achieved...
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