Grimes v. Tynon
| Decision Date | 10 November 2022 |
| Docket Number | 9:19-CV-1336 (GTS/CFH) |
| Parties | JAKIM GRIMES, Petitioner, v. TERESA TYNON, Respondent. |
| Court | U.S. District Court — Northern District of New York |
JAKIM GRIMES, Petitioner,
v.
TERESA TYNON, Respondent.
No. 9:19-CV-1336 (GTS/CFH)
United States District Court, N.D. New York
November 10, 2022
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Petitioner Jakim Grimes seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition (“Pet.”). Respondent opposes the petition. Dkt. No. 17, Response; Dkt. No. 17-1, Memorandum of Law in Opposition; Dkt. No. 17-3, State Court Record (“SR”); Dkt. No. 17-4, Transcript (“T”). Petitioner filed a reply. Dkt. No.
19, Traverse. For the reasons discussed below, the undersigned recommends denying and dismissing the petition.
II. BACKGROUND
On June 1,2011, Syracuse Police Department officers conducted a traffic stop of a vehicle after observing the vehicle pull away without signaling. SR at 90 (police incident report).[1]Police detected an odor of marijuana coming from the vehicle. Id. A check of the license plate revealed the vehicle's driver had an active arrest warrant, and the officers arrested the driver. Id. The officers asked the two remaining passengers, one of whom was identified as Petitioner, to exit the vehicle. Id. An officer asked to conduct a search of Petitioner's person, and he provided verbal consent. Id. Police discovered a clear plastic bag containing a beige chunky substance, and Petitioner revealed an additional bag containing a green/brown plant-like material. Id. Police administered a test kit and identified the chunky beige substance as containing cocaine. Id. Petitioner also possessed multiple cell phones and $350.00 U.S. currency. Id. Petitioner was arrested and transported to booking. Id.
Petitioner was indicted by grand jury for criminal possession of a controlled substance in the third degree in violation of Section 220.16(1) of New York Penal Law and criminal possession of a controlled substance in the fourth degree in violation of Section 220.09(1) of New York Penal Law. SR at 32. The grand jury found that on June 1,2011, Petitioner “knowingly and unlawfully possessed one or more
preparations, compounds, mixtures or substances containing a narcotic drug . . . of an aggregate weight of one-eighth ounce or more, to wit: cocaine.” Id .[2]
On January 5, 2012, Petitioner, represented by counsel, entered a plea of guilty to the charges of third- and fourth- degree criminal possession of a controlled substance. T at 233-42 (transcript of plea hearing). On March 2, 2012, Petitioner was sentenced to a six-year determinate sentence plus one and a half years of post-release supervision. T at 243-48 (transcript of sentencing hearing).
Petitioner appealed from the judgment. See People v. Grimes, 20 N.Y.S.3d 261 (4th Dept. 2015).[3] On November 13, 2015, the Appellate Division, Fourth Judicial Department, unanimously affirmed the conviction. Id. The People served a notice of entry of the Appellate Division's decision on Petitioner on November 17, 2015. SR at 179. In a letter dated November 20, 2015, Petitioner's counsel informed him “[counsel was] in the process of drafting the leave application to the court of appeals and [Petitioner] should receive it shortly.” SR at 185.
New York law requires appellants to apply for a certificate granting leave to appeal to the Court of Appeals “[w]ithin thirty days after service . . . of a copy of the order sought to be appealed[.]” N.Y. CRIM. PRO. LAW § 460.10(5)(a) (hereinafter “CPL”).[4] Under the CPL, the court may extend the deadline to file an application for leave to appeal by thirty days, however, “[s]uch [a] motion must be made with due
diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter.” Id. § 460.30(1).[5] The record contains a letter application from Petitioner's counsel to the Court of Appeals, dated November 20, 2015, seeking leave to appeal the Fourth Department's decision; however, the application was not timely filed. See SR at 215-19.
On January 9, 2017, Petitioner wrote to his counsel inquiring about the status of his leave to appeal. SR at 205 (affirmation of Phillip Rothschild); Dkt. No. 1-1 at 8. After receipt of Petitioner's letter, counsel discovered the application for leave had not been filed. See SR at 205.
On January 20, 2017, a counseled application for coram nobis relief was filed on Petitioner's behalf, seeking an extension of time to file an application for leave to appeal to the Court of Appeals. SR at 168-85. In an affirmation in support of Petitioner's motion, counsel explained “[u]nfortunately, due to law office failure and [his] lack of oversight, [the November 20, 2015] application [for leave to appeal to the Court of Appeals] was never timely filed and served and the case was later mistakenly marked as closed.” Id. at 205. Counsel averred “[o]nly upon receipt of [Petitioner's] letter of January 9, 2017, . . . was the failure to file the leave application discovered.” Id.
On March 24, 2017, the Appellate Division, Fourth Department, denied Petitioner's application for coram nobis. People v. Grimes, 49 N.Y.S.3d 326 (4th Dept. 2017).[6] Thereafter, Petitioner timely sought leave to appeal the denial. SR 188-90. The Court of Appeals granted leave to appeal. People v. Grimes, 29 N.Y.3d 1127
(2017).[7] On October 23, 2018, the Court of Appeals affirmed the Fourth Department's denial of relief. SR 327-72; People v. Grimes, 32 N.Y.3d 302, 115 N.E.3d 587, 91 N.Y.S.3d 315 (2018).[8] Judges Stein, Fahey, Garcia, and Feinman concurred with Chief Judge DiFiore's opinion; Judge Wilson wrote a dissent, with which Judge Rivera concurred. SR 327-48 (majority opinion); 349-72 (dissenting opinion).
III. PENDING PETITION
Petitioner, pro se, filed the instant petition for a Writ of Habeas Corpus on October 11,2019. See Pet. at 22.[9] Petitioner challenges his 2012 judgment of conviction, in Onondaga County, upon a guilty plea of third- and fourth- degree criminal possession of a controlled substance. Id. at 1-2. Petitioner argues that he is entitled to federal habeas relief because his attorney's failure to file a timely leave application constituted ineffective assistance of appellate counsel (Pet. at 7-8; Dkt. No. 1-1 at 1021); Supreme Court, Onondaga County erred in denying Petitioner's motion to suppress physical evidence obtained as a result of the June 1,2011, search of Petitioner's person (Pet. at 10-12; Dkt. No. 1-1 at 21-25); and he was improperly adjudicated as a second felony drug offender at sentencing (Pet. at 14-15; Dkt. No. 1-1 at 25-28).
Respondent first argues the petition should be dismissed as untimely because it was filed after the statutory limitations period expired, and it does not qualify for equitable tolling. Dkt. No. 17-1 at 10-15. In response to the timeliness issue, Petitioner
contends “extraordinary circumstances” prevented him from timely filing the petition, therefore, equitable tolling applies. Dkt. No. 19 at 7-10.
Respondent further argues Petitioner's ineffective appellate counsel claim is unexhausted and plainly meritless (Dkt. No. 17-1 at 15-17); Petitioner's Fourth Amendment claim is unexhausted, procedurally defaulted, and barred from habeas review under Stone v. Powell (Dkt. No. 17-1 at 17-20); and Petitioner's challenge to his adjudication as a second felony drug offender is unexhausted and procedurally defaulted, barred from review on independent and adequate state law grounds, and not cognizable on habeas review (Dkt. No. 17-1 at 20-24). In response to these arguments, Petitioner contends his ineffective assistance of appellate counsel claim was properly exhausted and is meritorious (Traverse at 11-13); his Fourth Amendment claim is not barred from habeas review (Traverse at 14); and his challenge to his adjudication as a second felony drug offender was properly exhausted and not barred from review (Traverse at 15-16).
IV. DISCUSSION
A. Timeliness of the Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 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 latest of several events: 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; the date on which an unconstitutional, state-created impediment to filing a habeas petition is removed; the date on which the Supreme Court initially recognized
the constitutional right on which the petitioner bases his habeas application if that right was newly recognized and made retroactively applicable; or the date on which the petitioner could have discovered the factual predicate for the claim or claims presented through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(A)-(D); Gonzalez v. Thaler, 565 U.S. 134, 148-54 (2012).
The limitations period is tolled while “a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending[.]” 28 U.S.C. § 2244(d)(2); see Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir. 2009). However, state collateral proceedings do not toll the one-year statute of limitations when those proceedings were filed after the expiration of the deadline. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (holding “proper calculation of [the] tolling provision excludes time during which properly filed state relief applications are pending[,] but does not reset the date from which the one-year statute of limitations begins to run.”). Alternatively, “[a] petitioner who has filed a petition past the one-year statute of limitations] and does not have sufficient statutory tolling may still have his petition considered through equitable tolling.” Levola v. New York...
To continue reading
Request your trial