Gross v. Royce

• Decision Date: 04 June 2021
• Docket Number: 20-CV-03037 (DG)
• Parties: James Gross, Petitioner, v. Superintendent Mark Royce, The Attorney General of New York, Respondents.
• Court: U.S. District Court — Eastern District of New York

James Gross, Petitioner, v. Superintendent Mark Royce, The Attorney General of New York, Respondents.^*

20-CV-03037 (DG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 4, 2021

MEMORANDUM & ORDER

DIANE GUJARATI, United States District Judge:

On June 25, 2020,¹ pro se Petitioner James Gross, incarcerated at Green Haven Correctional Facility in Stormville, New York, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. Petition ("Pet."), ECF No. 1. Petitioner challenges his March and July 2009 convictions in County Court, Suffolk County, New York, for robbery in the second degree in the first case, and one count of robbery in the first degree, two counts of robbery in the second degree, and three counts of robbery in the third degree in the second case. See People v. Gross, 78 A.D.3d 1196 (2d Dep't 2010); People v. Gross, 88 A.D.3d 905 (2d Dep't 2011); see also Respondents' Affirmation in Support ("Respondents' Aff.") ¶¶ 3-4, ECF No. 5.² Petitioner asserts ineffective assistance of counsel, due process, and actual innocence claims. See generally Pet. Pending before the Court is Respondents' Motion to Dismiss the Petition as untimely. See Respondents' Aff.; Respondents' Memorandum of Law ("Respondents' Mem."), ECF No. 5-1. As set forth more fully below, Petitioner's claims were not filed within the applicable one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Petitioner is not entitled to statutory or equitable tolling of the limitations period, and Petitioner has failed to show a credible claim of actual innocence that would overcome the statute of limitations. Accordingly, the Petition must be dismissed.

BACKGROUND

On March 24, 2009, Petitioner James Gross was sentenced after a trial to twenty-five years to life on one count of robbery in the second degree. Pet. at 1-2³; Respondents' Aff. ¶ 3. Petitioner appealed his conviction, Pet. at 2, and on November 30, 2010, the Supreme Court of the State of New York, Appellate Division, Second Department ("Second Department") affirmed the conviction, see Gross, 78 A.D.3d at 1196. Petitioner sought leave to appeal, which the New York State Court of Appeals ("Court of Appeals") denied on January 28, 2011. Pet. at 2; see also People v. Gross, 16 N.Y.3d 743 (2011).

On July 24, 2009, Petitioner was sentenced after a separate trial on one count of robbery in the first degree, two counts of robbery in the second degree, and three counts of robbery in the third degree. See Gross, 88 A.D.3d at 905; Respondents' Aff. ¶ 4. The sentence imposed "totaled thirty years to life" and was to run concurrently with the sentence imposed for the conviction following Petitioner's first trial. Pet. at 2; Respondents' Aff. ¶ 5. Petitioner appealed the convictions resulting from his second trial to the Second Department, Pet. at 3, whichaffirmed those convictions on October 18, 2011, see Gross, 88 A.D.3d at 905. The Court of Appeals denied leave to appeal on February 1, 2012. Pet. at 3; see also People v. Gross, 18 N.Y.3d 924 (2012).⁴

On July 14, 2016, Petitioner filed a motion to vacate his judgments of conviction and sentences pursuant to New York Criminal Procedure Law Section 440.10 ("440.10 motion"). See Pet. at 3; see also ECF No. 5-3 at 30. Petitioner sought vacatur due to prosecutorial misconduct, ineffective assistance of counsel, and newly discovered evidence. Pet. at 3; ECF No. 5-3 at 30. The County Court, Suffolk County, New York, denied Petitioner's 440.10 motion on September 19, 2016. Pet. at 3; ECF No. 5-3 at 31. Leave to appeal that decision was denied on January 18, 2017. Pet. at 3; ECF No. 9.

On December 21, 2016, Petitioner filed a second 440.10 motion in which he again sought to vacate his judgments on the grounds of prosecutorial misconduct, ineffective assistance of counsel, and newly discovered evidence. Pet. at 3; ECF No. 5-3 at 33; ECF No. 9. His motion was denied by the County Court on April 20, 2017, ECF No. 5-3 at 34, and leave to appeal that decision was denied on July 25, 2017, Pet. at 4; ECF No. 9.

Petitioner's third and final 440.10 motion was filed on November 28, 2018. See Pet. at 4; ECF No. 5-2 at 1. In this 440.10 motion, Petitioner sought to vacate his judgments based on prosecutorial misconduct, ineffective assistance of counsel, and his actual innocence. Pet. at 4; see also ECF No. 5-2 at 1-2. The motion was denied on January 25, 2019. See Pet. at 4; ECF No. 5-2 at 2. In denying the motion, the County Court noted that two of Petitioner's claims - ineffective assistance of counsel and prosecutorial misconduct - had already been raised, andthat Petitioner was therefore "precluded from again asserting these same claims." ECF No. 5-2 at 2. As to the third, the court concluded that Petitioner's actual innocence claim failed because he did not "present any evidence to support this claim." Id. Petitioner's appeal to the Second Department was denied on August 26, 2019. See Pet. at 4.

On June 25, 2020, Petitioner submitted the instant Petition for Writ of Habeas Corpus. See Pet. at 29. Respondents moved to dismiss the Petition on November 4, 2020 pursuant to 28 U.S.C. § 2244(d), see ECF No. 5, and Petitioner filed a Traverse on November 17, 2020, see Traverse, ECF No. 6. On June 1, 2021, Respondents filed a letter providing certain dates pertaining to Petitioner's 440.10 motions. ECF No. 9.⁵

DISCUSSION

I. Applicable Statutory Provisions and Equitable Doctrines

A. Statute of Limitations

AEDPA provides in relevant part:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

With respect to Section 2244(d)(1)(D), although Congress did not define "factual predicate," the United States Court of Appeals for the Second Circuit has held that it "consists only of the 'vital facts' underlying the claim" - i.e., "those without which the claim would necessarily be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts . . . or Rule 12(b)(6) of the Federal Rules of Civil Procedure." Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012). Thus, "if new information is discovered that merely supports or strengthens a claim that could have been properly stated without the discovery, that information is not a 'factual predicate' for purposes of triggering the statute of limitations under § 2244(d)(1)(D)." Id. (quoting McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007)); see also, e.g., Irizarry v. LaClair, No. 17-CV-00739, 2018 WL 3632508, at *3 (S.D.N.Y. July 30, 2018) ("[Section] 2244(d)(1)(D) 'does not convey a statutory right to an extended delay while a habeas petitioner gathers every possible scrap of evidence that might support his claim.'" (alterations adopted) (quoting Lucidore v. N.Y. State Div. of Parole, No. 99-CV-02936, 1999 WL 566362, at *5 (S.D.N.Y. Aug. 3, 1999), aff'd, 209 F.3d 107 (2d Cir. 2000))).

B. Tolling the Statute of Limitations

As relevant here, the one-year limitations period can be tolled - i.e., paused - in two ways. First, AEDPA provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under [Section 2244(d)]." 28 U.S.C. § 2244(d)(2). For example, "a properly filed 440.10 motion tolls AEDPA's limitations period." Waters v. Connolly, No. 12-CV-04205, 2013 WL 3821634, at *3 (E.D.N.Y. July 21, 2013); Pratt v. Greiner, 306 F.3d 1190, 1191 (2d Cir. 2002) (holding that a 440.10 motion properly filed under 28 U.S.C. § 2244(d)(2) "toll[s] the one-year statute of limitations under" AEDPA). And a properly filed 440.10 motion will remain "'pending' for purposes of AEDPA at least from the time it is filed through the time in which the petitioner could file an application for a certificate for leave to appeal the . . . denial of the motion" to the Court of Appeals. Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir. 2009) (citing Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd on other grounds, Artuz v. Bennett, 531 U.S. 4 (2000)).

Second, even where not statutorily tolled, the statute of limitations may be tolled for equitable reasons. See Holland v. Florida, 560 U.S. 631, 645-49 (2010). However, the Second Circuit has "clearly stated that the AEDPA limitations period will only be [equitably] tolled in 'rare and exceptional circumstance[s].'" Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010) (second alteration in original) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam)). To qualify for equitable tolling, a habeas petitioner must establish "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011) (quoting Holland, 560 U.S. at 649). Equitable tolling "requires the petitioner to demonstrate a causalrelationship between the extraordinary circumstances on which the claim for equitable...