Najera v. Lilley

• Decision Date: 03 May 2022
• Docket Number: 21-cv-7190 (CS) (AEK)
• Parties: EDUARDO NAJERA, Petitioner, v. LYNN J. LILLEY, Superintendent, Respondent.
• Court: U.S. District Court — Southern District of New York

EDUARDO NAJERA, Petitioner,
v.
LYNN J. LILLEY, Superintendent, Respondent.

No. 21-cv-7190 (CS) (AEK)

United States District Court, S.D. New York

May 3, 2022

TO: THE HONORABLE CATHY SEIBEL, U.S.D.J.

REPORT AND RECOMMENDATION

ANDREW E. KRAUSE, United States Magistrate Judge.

On August 19, 2021, Petitioner Eduardo Najera (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his judgment of conviction for first-degree rape. See ECF No. 1 (“Petition”).^[1] On February 9, 2022, Respondent moved to dismiss the Petition pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that it is time-barred under 28 U.S.C. § 2244(d)(1). ECF Nos. 16, 17.^[2]

For the reasons that follow, I respectfully recommend that Respondent's motion to dismiss be GRANTED and that the Petition be dismissed with prejudice.

BACKGROUND

Since the issue presented by the motion to dismiss is whether the Petition was timely filed, the Court recounts here only the procedural history, including the relevant dates, related to Petitioner's criminal proceedings.

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Pursuant to a plea bargain reached at the commencement of trial, Petitioner pled guilty to first-degree rape under N.Y. Penal Law § 130.35(3). See ECF No. 18 (“Long Decl”) Ex. A (Mar. 6, 2017 Plea Transcript). On August 29, 2017, the County Court in Rockland County imposed an agreed-upon sentence of 14 years imprisonment plus 20 years post-release supervision. Long Decl. Ex. A (Aug. 29, 2017 Sentencing Transcript).

Petitioner filed a direct appeal to the Appellate Division, Second Department, and on March 6, 2019, the Appellate Division affirmed Petitioner's judgment of conviction. People v. Najera, 170 A.D.3d 753 (N.Y.App.Div. 2019) (2d Dep't). On May 28, 2019, the New York Court of Appeals denied Petitioner leave to appeal. People v. Najera, 33 N.Y.3d 1034 (2019). Petitioner did not seek a writ of certiorari from the United States Supreme Court. See Long Decl. ¶ 5.

On June 14, 2019, Petitioner filed a pro se motion to vacate the judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law. Long Decl. Ex. C.^[3] On January 3, 2020, the County Court of Rockland County denied Petitioner's § 440.10 motion. Long Decl. Ex. D. On April 7, 2020, Petitioner sought leave to appeal the denial of the motion to the Appellate Division, Second Department, Long Decl. Ex. E, and on June 26, 2020, the Appellate Division denied Petitioner's leave application, Long Decl. Ex. F; People v. Najera, 2020 WL 3549255 (N.Y.App.Div. June 26, 2020) (2d Dep't).^[4] On September 1, 2020,

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Petitioner sought leave to appeal the Appellate Division's denial of his leave application to the New York Court of Appeals, Long Decl. Ex. I, and on October 22, 2020, the New York Court of Appeals denied this application, Long Decl. Ex. J; People v. Najera, 35 N.Y.3d 1114 (2020). The New York Court of Appeals order dismissing Petitioner's leave application states that “the application is dismissed because the order sought to be appealed from is not appealable under CPL § 450.90(1).” Long Decl. Ex. J. Petitioner has not sought any further state court relief. Long Decl. ¶¶ 3, 7. As noted above, on August 19, 2021, Petitioner filed the Petition. On February 9, 2022, Respondent filed the instant motion to dismiss the Petition as time-barred.

DISCUSSION

I. Applicable Law

“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If a petitioner has met these threshold requirements, a federal district court may hear an application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment “only on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

AEDPA imposes a one-year limitation period for the filing of a federal habeas petition. 28 U.S.C. § 2244(d)(1). This limitation period begins to run from the latest of four possible

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dates: (1) the date on which the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review; (2) the date on which a government-created impediment to filing a habeas petition is removed; (3) the date on which the constitutional right asserted is initially recognized by the Supreme Court, if the right has been made retroactively applicable to cases on collateral review; or (4) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(A)-(D).

Section 2244(d)(2) tolls the one-year limitation period for “[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 ....” 28 U.S.C. § 2244(d)(2). However, a state post conviction or collateral review application filed after the statutory limitation period has expired does not reset the one-year clock. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Thus, the tolling provision of Section 2244(d)(2) is applicable only if a petitioner's post-conviction motion was pending within the one-year limitation period for the filing of a federal habeas petition.

In “rare and exceptional circumstance[s]” the Court can equitably toll the AEDPA limitation period, allowing a petition filed outside of the one-year limitation period to be considered timely. Smith, 208 F.3d at 17 (internal quotation marks and citation omitted). To be eligible for equitable tolling, a petitioner must show that (1) extraordinary circumstances prevented him or her from filing the petition on time, and (2) the petitioner acted with reasonable diligence throughout the period he or she seeks to toll. Id.; see Holland v. Florida, 560 U.S. 631, 649 (2010).

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The Supreme Court also has held that a claim of actual innocence may provide an “equitable exception” to the AEDPA limitation period. McQuiggin v. Perkins, 569 U.S. 383, 386, 392-93 (2013). This exception creates a “gateway” to habeas review despite expiration of the statute of limitations and requires a petitioner to make the same showing of actual innocence necessary to overcome a procedural bar to habeas review that was articulated in Schlup v. Delo, 513 U.S. 298 (1995), and House v. Bell, 547 U.S. 518 (2006). See McQuiggin, 569 U.S. at 386. Thus, “a claim of actual innocence must be both ‘credible' and ‘compelling.'” Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012). To be “credible,” an actual innocence claim “must be supported by ‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Id. (quoting Schlup, 513 U.S. at 324 and citing House, 547 U.S. at 537). For such a claim to be “compelling,” “the petitioner must demonstrate that ‘more likely than not, in light of the new evidence, no reasonable juror would find him [or her] guilty beyond a reasonable doubt-or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.'” Id. (quoting House, 547 U.S. at 538).

II. Timeliness and Tolling

The record in this matter demonstrates that the Petition was not timely filed, and neither equitable tolling nor the equitable exception of actual innocence applies.

A. The Petition Is Untimely

The applicable date from which to measure the one-year limitation period in this matter is the date on which Petitioner's state court conviction became final “by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Here, the New York Court of Appeals denied Petitioner's application for leave to appeal the Appellate

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Division's denial of his direct appeal on May 28, 2019. People v. Najera, 33 N.Y.3d 1034 (2019). Because Petitioner did not file a petition for a writ of certiorari seeking review of the New York state court decision in the United States Supreme Court, his conviction became final on August 26, 2019, 90 days after the order denying his application for leave to appeal to...