Tejada v. Superintendent

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DAVID TEJADA,

Petitioner, MEMORANDUM & ORDER

-against- 18-CV-5823 (KAM)

SUPERINTENDENT

Respondent.

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KIYO A. MATSUMOTO, United States District Judge:

Pro se petitioner David Tejada (“petitioner”),

formerly incarcerated at Lakeview Shock Incarceration

Correctional Facility (“Lakeview”), commenced this action on

October 4, 2018 by filing a petition for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254, in the Southern District

of New York. (ECF No. 1, Petition for Writ of Habeas Corpus

(“Petition”).) On October 11, 2018, Hon. Louis Stanton of the

Southern District of New York ordered that the action be

transferred to this court. (ECF No. 2, Transfer Order.)

Petitioner challenges his sentence as excessive and illegal and

requests that the court reduce his sentence. (ECF No. 1,

Petition, at 2.) Presently before the court are the petition

for federal habeas relief and respondent’s opposition to the

petition. For the reasons set forth below, the court

respectfully denies and dismisses Mr. Tejada’s petition as time-

barred and meritless.

BACKGROUND

This case concerns an individual who, following his

conviction in state court for nonviolent, drug-related offenses,

and prior to sentencing, fled the United States. Petitioner was

sentenced in absentia in May 2005 by the trial judge, to a

seven-and-a-half to fifteen-year indeterminate term of

imprisonment. Petitioner spent the next eight or nine years

abroad as a fugitive, during which time he failed to file a

direct appeal from his conviction or sentence in state court.

Petitioner returned to the United States in 2014 and,

approximately one decade after the judgment became final,

commenced efforts to challenge his convictions in state court.

(See generally, ECF No. 12, Respondent’s Affidavit, Affirmation

and Memorandum of Law in Opposition to Petition for Writ of

Habeas Corpus (“Resp. Aff.”).)

Petitioner was arrested on August 2, 2003. (ECF No.

1, Petition.) Police found 28 ecstasy pills and four bags of

marijuana in his car. (ECF No. 12, Resp. Aff. ¶ 5.) Petitioner

was charged with third-degree criminal sale of a controlled

substance, in violation of New York Penal Law (“NYPL”) §

220.39[1], third-degree criminal possession of a controlled

substance, in violation of NYPL § 220.16[1], fourth-degree

criminal possession of a controlled substance, in violation of

NYPL § 220.019[7], and unlawful possession of marijuana, in

violation of NYPL § 221.05. (Id. ¶ 6.)

On March 10, 2005, a jury found petitioner guilty of

fourth-degree criminal possession of a controlled substance and

unlawful possession of marijuana, and could not reach a verdict

on the two remaining charges. (Id. ¶ 7.) Following

petitioner’s conviction, but before he was sentenced, he fled

the country. (Id. ¶ 8.) Accordingly, on May 17, 2005,

petitioner was sentenced in absentia as a second-felony

offender, to the maximum legal sentence of seven and one-half to

15 years’ imprisonment for fourth-degree criminal possession of

a controlled substance, and a concurrent term of 15 days’

incarceration for unlawful possession of marijuana. (Id.) In

2014, nearly nine years after he was sentenced, petitioner

returned to the United States. (Id. ¶ 9.) Upon his return, his

sentence was executed. (Id.) Petitioner has never filed a

direct appeal from his conviction or sentence in state court.

(Id. ¶ 10.)

On or about May 5, 2015, petitioner filed a motion for

a writ of error coram nobis, alleging that his attorney was

ineffective for failing to file a notice of appeal and

requesting permission to file a late notice of appeal. (ECF No.

14, Letter in Response to Court Order (“Superintendent

Letter”).) On November 11, 2015, the New York State Supreme

Court, Appellate Division, denied petitioner’s motion. People

v. Tejada, 133 A.D.3d 799 (2d Dep’t 2015).

On December 14, 2015, petitioner requested leave to

appeal to the New York State Court of Appeals. (ECF No. 12,

Resp. Aff. ¶ 11.) On April 5, 2016, leave was denied. People

v. Tejada, 27 N.Y.3d 1007 (2016). Petitioner also requested a

writ of certiorari from the United States Supreme Court. (ECF

No. 12, Resp. Aff. ¶ 11.) On October 3, 2016, that request was

denied. Tejada v. New York, 137 S. Ct. 183 (2016), pet’n for

rehearing denied, 137 S. Ct. 586 (2016).

On July 8, 2016, petitioner filed a motion pursuant to

New York Criminal Procedure Law (“NYCPL”) § 440.20, to set aside

his sentence on the ground that his sentence was illegal. (ECF

No. 12, Resp. Aff. ¶ 12.) Petitioner argued that New York’s

Drug Law Reform Act (“DLRA”), which lowered the maximum

sentences for certain felony drug offenses and was passed after

petitioner committed the crimes of which he was convicted,

applied retroactively to his conviction. (Id.) On September

20, 2016, petitioner’s motion was denied in its entirety. (Id.)

On September 28, 2016, petitioner filed a second

motion, pursuant to NYCPL § 440.20, to set aside his sentence on

the same grounds as his first motion. (Id. ¶ 13.) On December

19, 2016, Mr. Tejada’s second motion was denied as procedurally

barred. (Id.) On December 23, 2016, petitioner requested leave

to appeal from his first motion to the Appellate Division. (Id.

¶ 14.) On April 6, 2017, the Appellate Division denied leave

because the request was untimely. (Id. ¶ 14.)

On October 18, 2018, petitioner filed this instant

petition for a writ of habeas corpus, arguing that his sentence

is excessive and illegal, and moved to proceed in forma

pauperis. (ECF No. 1, Petition; ECF No. 5, Motion for Leave to

file in forma pauperis.) On January 23, 2019, Judge Bianco

granted petitioner’s motion for leave to proceed in forma

pauperis and ordered respondent to show cause pursuant to a

scheduling order. (ECF No. 6, Order to Show Cause.) On April

12, 2019, respondent filed its affidavit and memorandum of law

in opposition to the petition, arguing primarily that the

petition should be dismissed as time-barred. (ECF No. 12, Resp.

Aff.) The Clerk of Court refiled respondent’s affidavit and

memorandum on the docket, and mailed service to petitioner at

the case address. On April 19, 2019, respondent’s opposition to

the petition was returned as undeliverable. (ECF No. 13, Mail

Returned as Undeliverable.) A review of the New York Department

of Correction and Community Supervision’s inmate lookup tool

reveals that petitioner has been released on parole from

Lakeview facility, i.e. petitioner’s address of record, and

petitioner has failed to update his address of record.

The court ordered respondent to file documentation

that supports the bases for respondent’s arguments, employ

reasonable efforts to locate a current address of the

petitioner, and serve petitioner with its opposition. On May

15, 2020, respondent filed a letter in response to the court

order. (ECF No. 14, Superintendent Letter.) The letter states

that no transcripts of the trial or sentencing minutes were ever

created due to the age of the case. (Id.) Further, respondent

spoke with a parole officer at the New York State Department of

Corrections and Community Supervision and discovered that

petitioner has moved to 3281 Lawrence Avenue, Oceanside, New

York 11572. (Id.) Respondent promptly served petitioner with

its opposition and the documents contained in the letter. (ECF

No. 14-5, Affidavit of Service.) Further, respondent noted that

it had effectuated service of the instant opposition to the

petition upon petitioner in April 2019. (ECF No. 14.)

Despite petitioner’s having received respondent’s

opposition in April 2019, petitioner failed to respond. On May

12, 2020, the court ordered that “petitioner advise the court

whether he still intends to pursue his petition. If so,

petitioner is directed to update his address of record, serve

and submit his reply to respondent’s opposition no later than

June 18, 2020. Otherwise, the court shall consider the petition

fully-briefed on that date.” (Dkt. Order dated 5/12/2020

(emphasis in original).) The petitioner did not file any reply

by June 18, 2020, or thereafter. The court hereby considers the

petition to be fully submitted.

LEGAL STANDARD

To determine whether petitioner is entitled to a writ

of habeas corpus, the court applies the standard of review set

forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). Section 2254(d)

provides, in relevant part:

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted with

respect to any claim that was adjudicated on the

merits in State court proceedings unless the

adjudication of the claim–

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.

28 U.S.C. § 2254.

“Clearly established Federal law” is comprised of “the

holdings, as opposed to the dicta, of [the Supreme] Court’s

decisions as of the time of the relevant state-court decision.”

Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000). A decision is

“contrary to” clearly established federal law, as determined by

the Supreme Court, “if the state court arrives at a conclusion

opposite to that reached by [the Supreme Court] on a question of

law or if the state court decides a case differently than [the

Supreme Court] has on a set of materially indistinguishable

facts.” Williams, 529 U.S. at 413.

In addition, AEDPA provides that a one-year statute of

limitations applies to “an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a

State court.” 28 U.S.C. § 2244(d)(1). The one-year limitations

period runs from “the date on which the judgment 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); Williams

v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001). Where a petitioner

has not filed an appeal, his conviction is final 30 days after

the date of conviction, when the time limit to file a notice of

appeal has run. C.P.L. § 460.10(1)(a); Bethea v. Girdich, 293

F.3d 577, 578 (2d Cir. 2002).

DISCUSSION

A. The Instant Petition is Time-Barred under AEDPA.

On October 4, 2018, petitioner filed the instant

petition for a writ of habeas corpus to challenge his sentence

based on his claim that his sentence is excessive and illegal.

Petitioner was sentenced on May 17, 2005. Because petitioner

did not file a timely notice of appeal, and the Appellate

Division and New York Court of Appeals denied his requests to

file a late appeal, the judgment became final on June 16, 2005.

Petitioner’s time to file the instant habeas petition expired on

June 16, 2006. The instant petition, filed on October 4, 2018,

is clearly untimely and, thus, barred from consideration under

AEDPA.

In addition, the instant petition does not provide a

basis for statutory or equitable tolling under 28 U.S.C. §

2244(d)(2). Even if the petitioner had requested equitable

tolling, he has not alleged that the circumstances presented

warrant equitable tolling. Mr. Tejada has not alleged – nor can

he plausibly allege, given his years as a fugitive from justice

- that he has been pursuing his rights diligently, and that some

extraordinary circumstance stood in his way and prevented timely

filing. Holland v. Florida, 560 U.S. 631, 645 (2010); Mamaradlo

v. United States, 8 F. App’x 39, 41 (2d Cir. 2001) (petitioner’s

status as a fugitive when the AEDPA deadline ran out was not an

extraordinary circumstance warranting equitable tolling).

B. Even If the Petition Were Not Time-Barred, It Would Fail on

the Merits.

Petitioner asserts, in conclusory fashion, that his

sentence violates his “state, federal and constitutional

rights,” but he points to no evidence or legal support for that

proposition. (ECF No. 1, Petition.) Thus, the court finds that

petitioner has failed to adequately allege a basis for federal

habeas relief pursuant to 28 U.S.C. § 2254(d).

The Second Circuit has held that “[n]o federal

constitutional issue is presented where . . . the sentence is

within the range prescribed by state law.” White v. Keane, 969

F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v. Kelly, 692

F. Supp. 146, 152 (E.D.N.Y. 1988), aff’d, 875 F.2d 857 (2d Cir.

1989); see also Alejandro v. Berbary, No. 08-CV-1809 (JFB), 2010

WL 2075941, at *7-9 (E.D.N.Y. May 21, 2010) (finding no

constitutional violation where petitioner’s sentence, on

conviction of Criminal Sale of a Controlled Substance in the

Second Degree, fell within the statutory range prescribed by

state law at the time of the original offense).

Though petitioner did not explicitly raise the DLRA in

his petition, the court considers whether the DLRA applies in

this case. For the reasons set forth below, the court finds

that the DLRA does not apply to petitioner’s conviction and

sentence. Therefore, the DLRA does not provide a legal basis to

disturb Mr. Tejada’s sentence.

In general, the DLRA applies prospectively, not

retroactively. People v. Utsey, 7 N.Y.3d 398, 403 n.5 (N.Y.

2006) (noting that the DLRA took effect 30 days after enactment

on January 13, 2005, and applies to crimes “committed on or

after the effective date thereof”) (citation omitted); People v.

Goode, 25 A.D.3d 723, 723-24 (2d Dep’t 2006) (“[T]he DLRA, while

ameliorative in nature, expressly states that its sentencing

provisions are to have only prospective application[.]”)

(citations omitted). Petitioner committed the offenses

underlying the conviction prior to the effective date of the

DLRA, so unless a subsequent amendment applies retroactively to

petitioner, he cannot avail himself of the possibility of

resentencing.

Subsequent amendments passed in 2005 and 2009 contain

resentencing provisions that permit retroactive application for

certain defendants: i.e. qualifying defendants who were

convicted of class A-I, class A-II, and class B felonies. Id.

(regarding 2005 amendments); People v. Flores, 50 A.D.3d 1156

(2d Dep’t 2008) (same); People v. Bustamante, 124 A.D.3d 1132,

1133 (3d Dep’t 2015) (discussing application of 2009 DLRA

amendments to class B drug offenders). As a class C felony

offender, petitioner is not eligible to be resentenced under the

DLRA nor its subsequent amendments. People v. Nieves, 906

N.Y.S.2d 782 (Sup. Ct. N.Y. 2009) (finding that defendant’s

conviction of class C drug felony meant that he could not avail

himself of the opportunity to be resentenced to a determinate

term of imprisonment).

Even if petitioner had been convicted of a class A or

class B drug felony, the fact that defendant has already been

released to parole supervision renders him ineligible for

resentencing consideration under the DLRA.1 Id.; see also

Bustamante, 124 A.D.3d at 1132 (finding defendant was no longer

eligible for 2005 DLRA relief because he had been released to

parole supervision); People v. Rodriguez, 61 A.D.3d 1004, 1004-

05 (2d Dep’t 2009) (finding defendant was not eligible to be

resentenced because he had been released on parole, even though

his parole was later revoked); People v. Mills, 11 N.Y.3d 527,

532-34 (N.Y. 2008) (legislative intent is clear with respect to

parolees). For the aforementioned reasons, petitioner is not

eligible to apply for resentencing under the DLRA, and his

petition fails on the merits.

CONCLUSION

For the foregoing reasons, Mr. Tejada’s petition for a

writ of habeas corpus is respectfully denied as time-barred and

meritless. Additionally, a certificate of appealability is

denied because petitioner has failed to make a substantial

showing of the denial of a constitutional right. 28 U.S.C. §

1 According to petitioner’s criminal history gathered from the New York State

Division of Criminal Justice Services, Mr. Tejada was released from prison

and into the custody of Parole on April 4, 2019. (ECF No. 14-1, Pet.

Criminal Justice History, at 9-10.) This release date is further

corroborated by Mr. Tejada’s petition itself as well as the NYS DOCCS Inmate

Lookup function. (ECF No. 1, Pet. at 2 (“If Parole grants my freedom, my

release/graduation date is set for April 4, 2019.”).)

2253(c); Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.

1029, 154 L. Ed. 2d 931 (2003) (discussing certificate of

appealability standard); Rules Governing Section 2254, Rule 11

(“The district court must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.”).

The Clerk of Court is respectfully directed to enter

judgment for respondent, denying and dismissing the petition.

Respondent is respectfully directed to mail a copy of this

Memorandum and Order and the judgment to petitioner at his last

known address: 3281 Lawrence Avenue, Oceanside, New York 11572,

and note service on the docket. The Clerk of Court is also

requested to update petitioner’s case address to reflect the

address listed herein, and close the case.

SO ORDERED.

DATED: June 25, 2020

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge