Dean v. Noeth

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

WILLIAM M. DEAN,

Petitioner, DECISION and ORDER

-vs-

18-CV-6648 CJS

SUPERINTENDENT JOSEPH

H. NOETH,

Respondent.

__________________________________________

INTRODUCTION

Petitioner William Dean (“Petitioner” or “Dean”), proceeding pro se, filed the subject

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in

Ontario County Court, on March 29, 2011, for crimes including three counts of Burglary in the

Second Degree. Now before the Court is Respondent’s Motion to Dismiss the Petition as

untimely. (ECF No. 12). For the reasons discussed below, Respondent’s motion is granted and

the petition is dismissed as untimely.

BACKGROUND

Dean was convicted following a jury trial in Ontario County Court before the Honorable

Craig J. Doran, County Court Judge (“Judge Doran”). The evidence introduced at trial, viewed

in the light most-favorable to the Prosecution, established, among other things, that in April and

May of 2010, Dean burglarized three residences, including one belonging to his brother Mark

from which jewelry, cash and other items were stolen. Mark suspected that Dean may have

been the perpetrator, and alerted police that if Dean had committed the burglary, he might try to

sell the stolen jewelry at a particular jewelry store in Rochester. A police investigation found that

Dean and his girlfriend had, immediately following the burglary at Mark’s house, gone to that

same jewelry store and sold a large amount of jewelry, including several items stolen from Mark’s

house. Dean was arrested and property stolen from the second burglarized residence, including

DVDs and a bottle of pills that had been prescribed to the homeowner’s husband, was found in

Dean’s car following the execution of a search warrant.1 Additionally, a credit card stolen from

the third burglarized residence was used to purchase merchandise from a Walmart store, and

Dean was arrested wearing a shirt matching the appearance of a shirt purchased with the stolen

card.2 In sum, the prosecution presented a strong circumstantial case based primarily on Dean’s

possession of recently-stolen property from all three burglaries, along with evidence of motive

and opportunity.3 The defense case consisted of just two witnesses, namely, Dean’s mother,

who attempted to provide alibis for him, and an investigator from the Public Defender’s Office.

The jury convicted Dean after deliberating only a few hours, and Dean was sentenced as a

second felony offender to an aggregate sentence of twenty-one years in prison (later modified

to nineteen years).

Dean subsequently filed an appeal and various state collateral attacks on his conviction,

alleging that he was unfairly convicted for various reasons, including that he had alibis; that his

brother lied about the burglary; that the shirt found in his possession did not match the

description given by police of the shirt purchased with the stolen credit card; that some of the

property found in his car did not match the property stolen from the second residence; that the

police and prosecutor fabricated and withheld evidence; and that his attorney provided

ineffective assistance of counsel.

1 The second burglarized home, which had also been savagely vandalized, belonged to woman who was an

acquaintance of Dean’s girlfriend, with whom she had had a falling out.

2 Store security footage from the Walmart indicated that the stolen card had been used by a white male and female

whose faces were obscured by large hats. However, Dean’s girlfriend was later observed (in jail) wearing shoes

matching those that had been worn by the female when the stolen credit card was used at Walmart, and she

confirmed that she had been present at the Walmart when the purchases were made with the stolen card.

3 As already noted, one of the burglarized homes belonged to Dean’s brother, and another belonged to an estranged

acquaintance of Defendant’s girlfriend.

On August 13, 2018, Dean filed the subject habeas Petition,4 which purports to assert ten

separate grounds for relief. Dean, proceeding pro se, used a form complaint for filing § 2254

habeas petitions. (ECF No. 1). As relevant to the pending motion to dismiss, the form complaint

directed Dean to list all “previously filed” “petitions, applications or motions . . . with respect to

this judgement in any court, state or federal[.]” In response to that direction Dean listed sixteen

such “petitions, applications or motions,” many of which he claimed were still “pending” years

after they were filed. For reasons that will become clear below, it is relevant to note that none

of the sixteen “petitions, applications or motions” Dean listed was filed on either April 27, 2015

or May 15, 2016. Dean signed the habeas petition on August 13, 2018.

On March 6, 2019, Respondent filed a motion to dismiss the petition as untimely, under

the applicable one-year statute of limitations.5 Respondent’s argument on this point may be

summarized as follows: Dean’s conviction became final (following his direct appeal and re-

sentencing) on October 5, 2015; however, the limitations clock was immediately tolled, because

there was still pending a state-court collateral attack (his second) pursuant to New York Criminal

Procedure Law (“CPL”) § 440.10 that he had filed on October 27, 2014; that motion was denied

on June 1, 2016; the following day, June 2, 2016, the one-year limitations period began to run;

the limitations clock then ran for 269 days, until February 25, 2017, when it was tolled because

Dean filed a motion for writ of error coram nobis; that application was denied on November 8,

2017, and the limitations clock began to run again the following day, November 9, 2017; the

limitations clock then ran un-interrupted for another 96 days, until it expired on February 13,

4 This filing date is based on the prison “mailbox rule,” not the ECF filing date of September 12, 2018.

5 There is a “one-year limitations period provided by the Antiterrorism and Effective Death Penalty Act of 1996, 28

U.S.C. § 2244(d)(1) (2015) (“AEDPA”).” Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27, 29 (2d Cir.

2015), as corrected (Nov. 12, 2015). “The statute of limitations runs from the latest of a number of triggering events,

including the date on which the judgment became final by the conclusion of direct review or the expiration of the

time for seeking such review,” although, “[a] petitioner may secure equitable tolling of the limitations period in certain

rare and exceptional circumstances.” Id. at 31 (citations and internal quotation marks omitted).

2018; and Dean did not file this habeas action until six months later, on August 13, 2018.

Respondent therefore contends that the petition is untimely by six months. Respondent

acknowledges that during the limitations period, Dean filed various NYCPLR6 Article 78 (“Article

78”) motions and Freedom of Information Law (“FOIL”) requests seeking documents related to

his case but contends that they did not toll the limitations clock.7 Respondent further contends

that Dean is not entitled to equitable tolling.

Dean opposes the motion (ECF Nos. 25 & 26) 8 and primarily contends that the 1-year

limitations period did not begin to run on June 2, 2016, contrary to what Respondent maintains.

In that regard, June 1, 2016, is the date that the New York State Supreme Court, Appellate

Division Fourth Department (“Appellate Division”) denied Dean’s motion for leave to appeal the

trial court’s denial of his second CPL § 440.10 motion. Respondent argues that the limitations

clock began running the next day, June 2, 2016, since New York law gave Dean no ability to

appeal that determination. Dean, however, contends that on June 22, 2016, he attempted to

appeal the Appellate Division’s ruling by filing a request for leave to appeal to the New York

Court of Appeals, which was denied, on September 19, 2016, because “the order sought to be

6 New York Civil Practice Law & Rules.

7 See, e.g., Collins v. Ercole, 667 F.3d 247, 251–253 (2d Cir. 2012) (The tolling provision in 28 U.S.C. § 2244(d)(2)

might possibly apply to an Article 78 proceeding that “seek[s] review of part or all of the pertinent judgment,” but

does not apply to one that does “not call the pertinent judgment into question.”); see also, id., 667 F.3d at 251, n. 5

(quoting the Supreme Court’s decision in Wall v. Kholi, 131 S.Ct. 1278, 1286, n. 4 (2011), for the proposition that

“motions “for post-conviction discovery . . . “are not direct requests for judicial review of a judgment and do not

provide a state court with authority to order relief from a judgment.”).

8 On March 7, 2019, Dean filed a submission (Docket No. [#14]), which the Court liberally construed as a request

for an opportunity to respond to the motion to dismiss. In response, on March 26, 2019, the Court issued an Order

[#16], granting Dean a 60-day extension, until May 24, 2019, to file a response to the motion to dismiss. On May

20, 2019, Dean filed a letter request [#19], seeking an additional 30-day extension of time to file a response. On

June 19, 2019, the Court issued an Order (ECF No. 24) granting Dean’s request and directing that his response to

the motion to dismiss be field and served on or before August 17, 2019. That same Order directed that Dean’s

“response shall not exceed twenty-five (25) pages total, typed and double spaced.” On July 19, 2019, Dean filed a

response (ECF No. 26) in opposition to the motion to dismiss. On July 22, 2019, a duplicate of Dean’s response

was filed. (ECF No. 25). The Court received nothing further from Dean prior to the August 17, 2019, deadline for

his response to the motion to dismiss. The Court subsequently received a letter from Dean (ECF No. 27) indicating

that his submissions in July 2019 comprised his response to the motion to dismiss, arguing that briefing on the

motion to dismiss should be deemed closed, and requesting a ruling from the Court.

appealed from [was] not appealable under CPL 450.90(1).”9 Dean further contends that after

the Court of Appeals denied his request, he “challenge[d] the [Court of Appeals] Clerk’s decision

to dismiss his application dated September 19, 2016, and [such challenge] was properly pending

before the Court of Appeals until November 28, 2016.” ECF No. 25 at p. AF-2. In sum, and

liberally construing Dean’s papers, he maintains that the 1-year limitations clock was statutorily

stayed, pursuant to 28 U.S.C. § 2244(d)(2),10 and did not begin to run until November 28, 2016,

at the earliest, due to his attempts to appeal the denial of his request for leave to appeal the

Appellate Division’s denial of his second CPL § 440.10 motion.

Alternatively, Dean contends that the limitations period was stayed under § 2244(d)(2) by

other state post-conviction motions he filed. In particular, those applications are as follows: 1) a

coram nobis motion which, as Respondent agrees, tolled the statute between February 25, 2017,

and November 8, 2017; 2) several Article 78 motions, FOIL applications and motions for

“contempt of court,” all directed at obtaining allegedly-withheld Brady and Rosario materials and

other evidence;11 3) a “Motion for New Trial of Arrest of Judgment” filed with the Ontario County

Supreme Court on April 27, 2015, which is purportedly “still pending before said court”;12 4) a

“Motion to Inspect Grand Jury Minutes and Dismiss Indictment Pursuant to NYS CPL § 210.20,”

allegedly filed with the Ontario County Supreme Court on May 15, 2016, that is purportedly “still

pending before the Court”; and 5) a third CPL § 440.10 motion, purportedly filed on May 4, 2018,

which is purportedly “still pending before the New York State Court of Appeals.”13 Although, as

9 See, Pet. at p.6 & addendum ¶ 20-B; see also, ECF No. 25 at p. 4 (AF-1) (The reader is advised that the ECF

page numbering may not correspond to the page numbering on the original document).

10 See, 28 U.S.C.A. § 2244 (West) (“The 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 this subsection.”).

11 ECF No. 25 at pp. 5–6, 8, 9.

12 ECF No. 25 at p. 8

13 ECF No. 25 at p. 6, numbered paragraph 4 (“[H]e filed his CPL 440.10 motion papers on May 04, 2018, and

after, to which had further halted the AEDPA to date and is still pending before the New York State Court of

noted earlier, Dean did not mention applications 3) and 4) in the Petition, despite having been

directed to list all such motions therein.

Additionally, Dean contends that the limitations period should be equitably tolled since he

“made several attempts in which to file said petition in a timely manner” but was prevented from

doing so.14 In particular, Dean argues that in January 2018, officials at Attica Correctional

Facility (“Attica”) mishandled his request to provide him with inmate-account information that he

needed to apply to file the subject Petition in forma pauperis.15 Specifically, he alleges that on

January 15, 2018, he sent a certification request to officials at Attica, and on January 31, 2018,

“the facility replied with further instruction and did not return the certification to petitioner as

required pursuant to law.”16 More generally, Dean argues that he was also stymied from

pursuing his claims due to misconduct by police, the prosecutor and Judge Doran. Dean alleges,

for example, that police fabricated and withheld evidence, that the prosecutor failed to provide

him with all the discovery to which he was entitled, and that Judge Doran improperly refused to

allow him to file certain evidence-seeking state-court applications without payment of a filing

fee.17

Appeals.”).

14 ECF No. 25 at p. 1.

15 See, ECF No. 25 at p. 6, ¶ 4 and p. 7, ¶ 6. (Dean asserts that he requested the information from Attica on

January 15, 2018, and received a response on January 31, 2018).

16 ECF No. 25 at p. 21.

17 See, e.g., ECF No. 25 at p. 15 (alleging that Judge Doran “denied [him] access to the courts.”); see also, id. at

pp. 18-19 (discussing alleged withholding of discovery and denial of access to the court), 21-23. Dean essentially

alleges that every government agency with whom he has dealt has acted improperly toward him. See, id. at pp.

20–21 (Alleging that the U.S. Department of Justice refused to comply with a 2016 FOIL request).

Finally, Dean maintains that he is actually innocent, which should excuse him from

complying with the AEDPA filing deadline.18

The Court has considered the arguments of the parties and the entire record, including

the voluminous exhibits attached to Dean’s Petition and motion response.

DISCUSSION

Petitioner’s Pro Se Status

Since Petitioner is proceeding pro se, the Court has construed his submissions liberally,

“to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d

Cir.1994).

Petitioner’s Application for Appointment of Counsel

Dean’s opposition papers contain a cursory request for appointment of counsel.19

Prisoners have no constitutional right to counsel when bringing collateral attacks upon their

convictions. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). However, the Court may appoint

counsel in the interests of justice to any person seeking relief pursuant to 28 U.S.C. § 2254 who

is financially unable to obtain representation. 28 U.S.C. § 2254(h). The Court considers several

factors in determining whether to assign counsel, including whether the indigent's claims seem

likely to be of substance; whether the indigent is able to investigate the facts concerning his

claim; whether the legal issues are complex; and whether there are special reasons why the

appointment of counsel would be more likely to lead to a just determination. See Hendricks v.

Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).

The Court must consider the issue of appointment carefully because “every assignment of a

18 See, ECF No. 25 at pp. 1, 9, 11 (references to innocence).

19 See, ECF No. 25 at p. 12 (“I believe if the Court were to permit such relief as to assign an attorney to this matter

it may be better stated and presented for this Court and for any other relief this Court may seem just and proper.”).

volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a

deserving cause.” Cooper v. A. Sargenti Co. Inc., 877 F.2d 170, 172 (2d Cir. 1989).

Having considered the relevant factors, the Court finds that appointment of counsel is not

warranted here primarily, since Dean is a very experienced pro se litigator and has, based on

his intimate knowledge of the long history of this action, competently presented the arguments

for timeliness. The application for appointment of counsel is therefore denied.

An Evidentiary Hearing is Not Required

Pursuant to Rule 8 of Rules Governing Habeas Corpus cases under Section 2254 in the

United States District Courts and upon review of the Petition, motion papers and documents filed

in this action, the Court determines that an evidentiary hearing is not required.

Section 2254 Principles

Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, and the

general legal principles regarding the timeliness of such an application are well settled.

A prisoner seeking habeas relief under section 2254 must generally file a petition

within one year from the latest of four benchmark dates: (1) when the judgment of

conviction becomes final; (2) when a government-created impediment to making

such a motion is removed; (3) when the constitutional right asserted is initially

recognized by the Supreme Court, if it has been made retroactively available to

cases on collateral review; or (4) when the facts supporting the claim(s) could have

been discovered through the exercise of due diligence. See 28 U.S.C. §

2244(d)(1)-(2).

Karelefsky v. Brann, No. 20-CV-9485 (JGK), 2022 WL 624424, at *3 (S.D.N.Y. Mar. 1, 2022).

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 [v.

Senkowski], 587 F.3d [543,] 548 [(2d Cir. 2009)]. 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.” Smith

v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). The tolling provision

excludes from the limitations period only the time that the state relief application

remained undecided, including the time during which an appeal from the denial of

the motion was taken. Saunders, 587 F.3d at 548; Smith, 208 F.2d at 16.

Thomas-Jandrew v. Superintendent, No. 921CV1293MADATB, 2022 WL 43784, at *2 (N.D.N.Y.

Jan. 5, 2022).

However, not every type of post-conviction application that a defendant might file will toll

the limitations period. In particular, applications that do not challenge the underlying conviction,

such as Article 78 proceedings seeking documents and FOIL requests, do not toll the AEDPA

filing deadline. See, e.g., Collins v. Ercole, 667 F.3d 247, 251-253 (2d Cir. 2012) (The tolling

provision in 28 U.S.C. § 2244(d)(2) might possibly apply to an Article 78 proceeding that “seek[s]

review of part or all of the pertinent judgment,” but does not apply to one that does “not call the

pertinent judgment into question.”); see also, id., 667 F.3d at 251, n. 5 (quoting the Supreme

Court’s decision in Wall v. Kholi, 131 S.Ct. 1278, 1286, n. 4 (2011), for the proposition that

“motions “for post-conviction discovery . . . “are not direct requests for judicial review of a

judgment and do not provide a state court with authority to order relief from a judgment.”); see

also, Stein v. Stallone, No. 9:17-CV-0670 (BKS), 2019 WL 5578236, at *7 (N.D.N.Y. Oct. 29,

2019) (“The FOIL requests and related Article 78 petitions that petitioner filed between 2006 and

2014 seeking documents do not toll the limitations period. See Hodge v. Greiner, 269 F.3d 104,

107 (2d Cir. 2001).”).

Furthermore, there can be extensions of the AEDPA’s limitations period based on the

doctrine of equitable tolling:

The AEDPA statute of limitations “does not set forth ‘an inflexible rule requiring

dismissal whenever’ its ‘clock has run.’” Holland v. Florida, ––– U.S. ––––, 130

S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (quoting Day v. McDonough, 547 U.S.

198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006)). Indeed, in Holland the

Supreme Court concluded, as had all eleven Courts of Appeals to consider the

question, that § 2244(d) “is subject to equitable tolling in appropriate cases.” Id.

The Court went on to conclude that § 2244(d) may be tolled “only if [the petitioner]

shows (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing.” Holland

v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2560–62, 177 L.Ed.2d 130 (2010)

(internal quotation marks omitted).

Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011).

Additionally, there can be an exception to the AEDPA filing deadline where a habeas

petitioner makes a “gateway showing of actual innocence.”20 See, Hyman v. Brown, 927 F.3d

639, 643 (2d Cir. 2019) (“[T]he law affords another narrow ‘gateway’ to merits review of defaulted

claims for habeas petitioners who can make credible and compelling showings of actual

innocence.”). The standard for this exception, though, is intentionally quite demanding and

rarely met:

“[C]oncern about the injustice that results from the conviction of an innocent person

has long been at the core of our criminal justice system,” both state and federal.

[Schlup v. Delo, 513, U.S.] 325, 115 S.Ct. 851 [(1995)]. But within that system,

“trial is the paramount event for determining the guilt or innocence” of an accused.

Herrera v. Collins, 506 U.S. 390, 416, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). An

accused enters trial with “a presumption of innocence” and a right to “insist that his

guilt be established beyond a reasonable doubt.” Id. at 398, 113 S.Ct. 853. Once

guilt is so established, however, a federal habeas court will not relitigate the

question of guilt for a state defendant who protests his actual innocence. See Rivas

v. Fischer, 687 F.3d at 540 & n.34 (observing that Supreme Court “has never

explicitly recognized the existence of a freestanding actual innocence claim”).

Rather, a federal habeas court will review state convictions for constitutional error.

See 28 U.S.C. § 2254.20

The law, nevertheless, affords an actual innocence gateway claim because “the

existence of a concededly meritorious constitutional violation is not in itself

20 An “actual innocence” claim is not a free-standing substantive claim, but a procedural exception to a procedural

default. See, Hyman v. Brown, 927 F.3d 639, 655 (2d Cir. 2019) (“Hyman’s actual innocence claim plays a

‘procedural, not substantive’ role in this case. Rivas v. Fischer, 687 F.3d at 541. Even if successful, the claim cannot

itself afford Hyman habeas relief from his state conviction. It can only open a gateway to federal review of an

otherwise procedurally barred Sixth Amendment claim that, if itself successful, could afford him relief. See Schlup

v. Delo, 513 U.S. at 314, 115 S.Ct. 851.”).

sufficient ... [to] allow a habeas court to reach the merits of a barred claim.” Schlup

v. Delo, 513 U.S. at 316, 115 S.Ct. 851. Usually, that bar will be lifted only if a

petitioner demonstrates good cause to excuse his default and ensuing prejudice.21

See House v. Bell, 547 U.S. at 536, 126 S.Ct. 2064 (collecting cases). Even in the

absence of that showing, however, the law recognizes that, in a “narrow class of

cases,” there remains the risk of “a fundamental miscarriage of justice” if the

defaulted constitutional claim is not heard. Schlup v. Delo, 513 U.S. at 315, 115

S.Ct. 851 (internal quotation marks omitted). That narrow class of “truly

extraordinary” cases consists of those presenting credible and compelling claims

of actual innocence. Id. at 338, 115 S.Ct. 851; see Herrera v. Collins, 506 U.S. at

404, 113 S.Ct. 853 (“[F]undamental miscarriage of justice exception[ ] is grounded

in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors

do not result in the incarceration of innocent persons.”); Murray v. Carrier, 477 U.S.

478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (limiting “miscarriage of justice”

exception to “extraordinary case[s], where a constitutional violation has probably

resulted in the conviction of one who is actually innocent”). Thus, a state prisoner

who “seek[s] access to a federal habeas court in the face of a procedural obstacle,”

and who cannot overcome that obstacle by showing cause and prejudice, “must

advance both a legitimate constitutional claim and a credible and compelling claim

of actual innocence.” Rivas v. Fischer, 687 F.3d at 540 (emphases in original).

The petitioner’s burden in making a gateway showing of actual innocence is

deliberately “demanding.” House v. Bell, 547 U.S. at 538, 126 S.Ct. 2064; see

Schlup v. Delo, 513 U.S. at 324, 115 S.Ct. 851 (observing that actual innocence

claims are rarely successful); accord McQuiggin v. Perkins, 569 U.S. 383, 386,

401, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013) (“stress[ing] that the Schlup

standard is demanding” and cases satisfying it “rare”). It requires, first, that

petitioner adduce “new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was

not presented at trial.” Schlup v. Delo, 513 U.S. at 324, 115 S.Ct. 851. In addition

to being reliable, i.e., credible, the evidence must be compelling. This second

requirement demands “evidence of innocence so strong that a court cannot have

confidence in the outcome of the trial unless the court is also satisfied that the trial

was free of nonharmless constitutional error.” Id. at 316, 115 S.Ct. 851; accord

Rivas v. Fischer, 687 F.3d at 541.21

The standard’s demand for “evidence of innocence,” Schlup v. Delo, 513 U.S. at

316, 115 S.Ct. 851 (emphasis added), references “factual innocence, not mere

legal insufficiency,” Bousley v. United States, 523 U.S. 614, 624, 118 S.Ct. 1604,

21 Here, Dean has not argued or attempted to show both good cause and prejudice for his late filing.

140 L.Ed.2d 828 (1998); accord Dunham v. Travis, 313 F.3d 724, 730 (2d Cir.

2002); see also Doe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (Sotomayor, J.)

(“As Schlup makes clear, the issue before [the] court is not legal innocence but

factual innocence.”). The new evidence need not demonstrate factual innocence

to an “absolute certainty.” House v. Bell, 547 F.3d at 538; accord Rivas v. Fischer,

687 F.3d at 542. But it must be sufficiently credible and compelling to allow a

federal court to conclude that “more likely than not, in light of the new evidence, no

reasonable juror would find [petitioner] guilty beyond a reasonable doubt—or, to

remove the double negative, that more likely than not any reasonable juror would

have reasonable doubt.” House v. Bell, 547 U.S. at 538, 126 S.Ct. 2064; see

Schlup v. Delo, 513 U.S. at 327, 115 S.Ct. 851; Rivas v. Fischer, 687 F.3d at 541.

As this court has recognized, this standard is “somewhat cryptic” in marrying a

seemingly absolute requirement (no reasonable juror) to a probabilistic one (more

likely than not). Rivas v. Fischer, 687 F.3d at 541 (citing Schlup v. Delo, 513 U.S.

at 339, 115 S.Ct. 851 (Rehnquist, C.J., dissenting) (characterizing standard as

“classic mixing of apples and oranges”)). Nevertheless, this court has located

some guidance for its application in contrasts that the Supreme Court has drawn

between the Schlup standard and other familiar ones. See id.

Notably, Schlup emphasizes that “actual innocence ... does not merely require a

showing that a reasonable doubt exists in the light of the new evidence, but rather

that no reasonable juror would have found the defendant guilty.” 513 U.S. at 329,

115 S.Ct. 851. Further, a “more likely than not” showing as to what “no reasonable

juror would have found” requires “a stronger showing than that needed to establish

prejudice,” but not so strong as that demanded by the “‘clear and convincing’

standard.” Id. at 327, 115 S.Ct. 851; see Rivas v. Fischer, 687 F.3d at 541.22

Further, the Court has stressed that Schlup’s actual innocence standard does not

equate to the sufficiency-of-the-evidence standard in Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Jackson asks whether the trial

evidence, viewed in the light most favorable to the prosecution, “could” allow any

reasonable trier of fact to find a charged crime proved beyond a reasonable doubt.

Id. By contrast, Schlup’s actual innocence standard considers a different “mix of

evidence” from a different “vantage point.” Rivas v. Fischer, 687 F.3d at 542.

Specifically, a reviewing court assessing the probability of actual innocence is not

limited to the trial record. To the contrary, it “must consider all the evidence, old

and new, incriminating and exculpatory,” House v. Bell, 547 U.S. at 538, 126 S.Ct.

2064 (internal quotation marks omitted), and, in doing so, “is not bound by the rules

of admissibility that would govern at trial,” Schlup v. Delo, 513 U.S. at 327, 115

S.Ct. 851. This is because, at the gateway stage of inquiry, a habeas court’s task

is not to identify trial error or to delineate the legal parameters of a possible new

trial. It is to identify those cases in which a compelling showing of actual innocence

would make it a manifest injustice to maintain conviction unless it was free of

constitutional error. Thus, incriminating evidence obtained in the course of an

unlawful search, or custodial admissions made in the absence of Miranda

warnings, may well be inadmissible at trial. Nevertheless, such evidence is

properly considered in assessing factual innocence, with the manner of

procurement informing reliability and relevance and, therefore, weight.

Hyman v. Brown, 927 F.3d 639, 655–58 (2d Cir. 2019) (emphasis added); see also, Doe v.

Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (“Once it has been determined that the new evidence

is reliable, Schlup unequivocally requires that reviewing courts consider a petitioner's claim in

light of the evidence in the record as a whole[.]”).

Such a showing of actual innocence may excuse the failure to comply with the AEDPA’s

one-year filing requirement. McQuiggin v. Perkins, 569 U.S. at 386, 133 S.Ct. at 1928 (“We hold

that actual innocence, if proved, serves as a gateway through which a petitioner may pass

whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case,

expiration of the statute of limitations.”).22

A habeas petitioner alleging actual innocence in this context is not necessarily entitled to

an evidentiary hearing:

Neither Pagan [v. Keane, 984 F.2d 61 (2d Cir. 1992)] nor any controlling authority

supports the proposition that, absent a showing of substantial support for the actual

innocence claim, a habeas petitioner seeking to pass through the Schlup “actual

innocence” gateway to have otherwise procedurally-barred habeas petition heard

on its merits is entitled to an evidentiary hearing to develop the evidence necessary

to establish actual innocence. While courts retain discretion to order an evidentiary

hearing to assist in the development of evidence of actual innocence sufficient to

22 McQuiggin explained the difference between equitable tolling and actual innocence in this context, namely, that

equitable tolling seeks an equitable extension of the AEDPA statute of limitations, while an actual innocence claim

seeks an equitable exception to the statute. Id., 569 U.S. at 392, 133 S.Ct. at 1931; see also, id. at 569 U.S. 399,

133 S.Ct. at 1935 (Referring to actual innocence in this context as “the miscarriage of justice exception to

AEDPA's statute of limitations.”).

meet the Schlup threshold, such a hearing is only justified if there is “substantial

support” for Petitioner's evidence.

Diaz v. Bellnier, 974 F. Supp. 2d 136, 141 (E.D.N.Y. 2013) (citation omitted, collecting cases).

If the petitioner makes a colorable claim of actual innocence, the district court should make

factual findings regarding the viability of the claim, and should, where necessary, conduct a

hearing. See, Stephenson v. Connecticut, 639 F. App'x 742, 745 (2d Cir. 2016) (“In the face of

evidence of actual innocence sufficient to make a claim colorable (though not necessarily

successful), we have on multiple occasions remanded a case to the district court to make specific

factual findings on the record as to the viability of the claim . . . . In accordance with this practice,

we vacate the District Court's denial of Stephenson's motion to amend and remand to the District

Court to make specific findings as to whether Stephenson has established a credible and

compelling claim of actual innocence. We further observe that it may be appropriate for the

District Court to conduct a hearing if it deems further investigation necessary to properly

ascertain the motives and credibility of Sinclair, identify, explain, and weigh inconsistencies (if

any) between the letter and Sinclair's trial testimony, and otherwise analyze and weigh the merits

of Stephenson's claim.”).

In considering whether the petition is timely, the court is required by 28 U.S.C. §

2254(e)(1) to give a presumption of correctness to the state courts’ factual determinations, which

may only be rebutted by clear and convincing evidence:

When a federal court reviews the merits of a habeas petition, the “factual findings

of the New York Courts are presumed to be correct.” Nelson v. Walker, 121 F.3d

828, 833 (2d Cir. 1997) (internal quotation marks and citation omitted). This

presumption is “particularly important when reviewing the trial court's assessment

of witness credibility.” Cotto v. Herbert, 331 F.3d 217, 233 (2d Cir. 2003). The

petitioner may rebut this presumption only by clear and convincing evidence. See

28 U.S.C. § 2254(e)(1). The Court of Appeals for the Second Circuit has not

explicitly held that this presumption of correctness that applies to a state court's

findings of fact in a district court's analysis of a petition's merits under Section

2254(e) also applies to a district court's analysis of whether a petition has met

AEDPA's threshold requirements under Section 2244. See Watson [v. Artuz,] 2019

WL 762221, at *10 [(S.D.N.Y. Feb. 21, 2019)]. Several courts in this Circuit have

held that the presumption of correctness codified in Section 2254(e) should apply

to a court's analysis of gateway actual innocence claims in the context of Section

2244. See Jimenez v. Lilley, No. 16-CV-8545, 2017 WL 4535946, at *8 (S.D.N.Y.

Oct. 10, 2017) (collecting cases), report and recommendation adopted, No. 16-

CV-8545, 2018 WL 2768644 (S.D.N.Y. June 7, 2018) (noting that Section 2254(e)

should apply “in all federal habeas corpus proceedings”); Green v. Capri, No. 9:17-

CV-0392, 2018 WL 2452623, at *5 & n.6 (N.D.N.Y. May 31, 2018) (citing other

appellate courts’ application of Section 2254(e)’s presumption of correctness to

procedural gateway claims of actual innocence); Watson [v. Artuz,] 283 F. Supp.

3d [217,] 234–35 [(S.D.N.Y. Jan. 30, 2018)] (same); Watson, 2019 WL 762221, at

*10 & n.2 (declining to decide the issue). The presumption of correctness in

Section 2254(e) is not limited to a decision on the merits of the petition. Moreover,

because the state post-conviction court that presided over the petitioner's Section

440.10 claim called multiple witnesses, and there has been no new testimony or

hearing in this matter before this Court that would contradict the Court's findings,

the state court was in the best position to analyze the credibility of the proffered

testimony and facts. Accordingly, the presumption of correctness applies to the

state post-conviction court's findings in this Court's analysis of whether the

petitioner has met the requirements of Section 2244(b)(2) and Section 2244(d)(1).

Cosey v. Lilley, 460 F. Supp. 3d 346, 363–64 (S.D.N.Y. 2020) (Koeltl, J.).

With these principles in mind, the Court has examined Dean’s various arguments for

timeliness and finds, for reasons discussed below, that the Petition is untimely.

The Filing Deadline Was Not Statutorily Tolled Beyond February 13, 2018

The Court agrees with Respondent that Dean’s filing deadline expired on February 13,

2018, and was not tolled past that date based on any pending, properly-filed post-conviction

challenges to his conviction.

In that regard, the Court first finds that the statute of limitations was not tolled by Dean’s

application to the Court of Appeals for leave to appeal the Appellate Division’s denial of leave to

appeal the trial court’s denial of his Second § 440.10 motion. As mentioned earlier, Respondent

contends that the AEDPA’s one-year limitations period began to run on June 2, 2016, after the

Appellate Division denied Dean’s request for leave to appeal. Dean, however, maintains that

the statute did not begin to run at that time, since on June 22, 2016, he filed a request for leave

to appeal to the New York Court of Appeals, which was denied, on September 19, 2016, because

“the order sought to be appealed from [was] not appealable under CPL 450.90(1).” See, Petition

at p.6 & addendum ¶ 20-B; see also, ECF No. 25 at p. AF-1. Dean further contends that after

the Court of Appeals denied his request, he made another application to the Court of Appeals

“challenging” its decision to deny his request, which the Court of Appeals denied on November

28, 2016.23 Consequently, Dean argues that the limitations period began to run after that date.

However, the Court disagrees. As noted earlier, the limitations period 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) (emphasis added). The issue

here is whether Dean’s applications to the Court of Appeals, on June 22, 2016, and on-or-about

September 19, 2016, respectively, were “properly filed.” Dean contends that they were, citing

“People v. Jones, 2014 WL 7069803, 2014 N.Y. Slip Op. 08760” (“Jones decision”). The Court,

though, finds that they were not, since New York law does not allow for the applications that

Dean filed following the ruling by the Appellate Division, absent permission from either the

Appellate Division or Court of Appeals, which Dean never obtained:

Petitioner's subsequent motions seeking review of his 440 motion by the Court of

Appeals did not toll the statute of limitations. Tolling is only permissible when an

application for post-conviction review is “properly filed.” 28 U.S.C. § 2244(d)(2). A

“properly filed” application is “an application for state post-conviction relief

recognized as such under governing state procedures.” Hizbullahankhamon v.

Walker, 255 F.3d 65, 70 (2d Cir. 2001) (citation omitted). Petitioner's August 22,

2017 motion for leave to appeal to the Court of Appeals from the Appellate

23 ECF No. 25 at p. AF-2.

Division's denial of his leave application was not “properly filed” because such

denials are not appealable. N.Y. CPL § 450.90(1). See also Brown v. Martuscello,

No. 16-CV-6084, 2019 WL 6833299, at *4 (S.D.N.Y. May 14, 2019), report and

recommendation adopted, No. 16-CV-6084, 2019 WL 3491461 (S.D.N.Y. Aug. 1,

2019); Girard v. Superintendent, No. 17-CV-1002, 2018 WL 3579861, at *4

(N.D.N.Y. July 25, 2018); Walker v. Graham, 955 F. Supp. 2d 92, 101 (E.D.N.Y.

2013). The October 17, 2017 Court of Appeals decision denying Petitioner leave

explained that “the application is dismissed because the order sought to be

appealed from is not appealable under CPL 450.90 (1).” (ECF No. 9-12 (emphasis

added).) Because the Appellate Division's underlying decision was unappealable,

Petitioner also had no basis to then seek reconsideration of the dismissal.

Consequently, Petitioner's motions before the Court of Appeals were not “properly

filed” for purposes of AEDPA. Therefore, the limitations period was not tolled while

these motions were pending.

Burno v. Morton, No. 19-CV-2536 (JMA), 2020 WL 1031323, at *3 (E.D.N.Y. Mar. 3, 2020),

certificate of appealability denied, No. 20-1063, 2020 WL 5641100 (2d Cir. Aug. 6, 2020).24

Moreover, insofar as Dean contends that the New York Court of Appeals’ Jones decision

gave him the right to appeal the Appellate Division’s ruling, other federal courts have already

explained why that argument lacks merit:

In New York, “any adverse or partially adverse order of an intermediate

appellate court” may be “taken to the court of appeals” if “a certificate

granting leave to appeal is issued pursuant to section 460.20.” N.Y. C.P.L.

§ 450.90(1). Section 460.20, in turn, explains that a “certificate granting

leave to appeal to the court of appeals ... is an order of a judge granting

such permission and certifying that the case involves a question of law

which ought to be reviewed by the court of appeals.” N.Y. C.P.L. § 460.20.

When the order sought to be appealed is an order of the Appellate

Division, either a judge of the Court of Appeals or a justice of the Appellate

24 See also, Romero v. Rich, No. 22-CV-686 (PKC), 2022 WL 1568707, at *2 (E.D.N.Y. May 18, 2022) (“Petitioner's

application to the New York Court of Appeals, for leave to appeal the Appellate Division's denial of leave to appeal

the trial court's § 440 decision, did not continue to toll the statute of limitations.”); Myles v. Griffin, No.

917CV0862TJMDEP, 2018 WL 7959105, at *3 (N.D.N.Y. Oct. 30, 2018), (“Appeals to the New York Court of

Appeals in cases of this nature are governed by N.Y. Criminal Procedure Law § 450.90(1). It is well-established

that that section does not permit a criminal defendant to request leave from the New York Court of Appeals following

the denial by the Appellate Division of such a request.”) (footnote omitted), report and recommendation adopted,

No. 917CV862TJMDEP, 2019 WL 1516992 (N.D.N.Y. Apr. 8, 2019).

Division may issue a certificate granting leave to appeal to the Court of

Appeals. See N.Y. C.P.L. § 460.20(2)(a). Together, these procedural rules

establish that a party cannot appeal an order of the Appellate Division to

the Court of Appeals without permission.

Furthermore, an order denying a § 440.10 motion is appealable to the

Appellate Division only by leave of a justice of that court granted under §

460.15. See N.Y. C.P.L. § 450.15(1). Absent that permission, “further

appellate review is unavailable under [New York] state's procedures.”

Bennet [v. Artuz,] 199 F.3d [116,] 120 [(2d Cir. 1999)]. “There is no

provision in New York law for an appeal to the Court of Appeals from an

order denying leave to appeal from an order denying a Section 440.10

motion.” Ramos v. Walker, 88 F.Supp.2d 233, 234 n.3 (S.D.N.Y. 2000).

Davis [v. Griffin,] 2019 WL 1384587, at *2–3 [(W.D.N.Y. Mar. 27, 2019)]. Petitioner

sought leave to appeal the denial of his second 440 motion, and his application

was denied by the Third Department. Petitioner did not receive permission to

appeal that denial from either the Third Department or the Court of Appeals;

therefore, his application to the Court of Appeals was not properly filed. Davis,

2019 WL 1384587, at *2. This was explicitly noted by the Court of Appeals in the

decision denying the request: “[T]he order sought to be appealed from is not

appealable under CPL § 450.90(1).”

Petitioner contends that the holding in People v. Jones, 24 N.Y.3d 623 (2014),

proves otherwise. Petitioner misconstrues the Court of Appeal's holding. While

Jones did serve to clarify and partially overturn prior precedent, it does not provide

Petitioner with the proffered procedural mechanism to extend his statutory tolling.

The Court of Appeals discussed, in great detail, how the enactment of New York's

Criminal Procedure Law changed how criminal defendants could seek review of

their state court convictions. Jones, 24 N.Y.3d at 627-31. Specifically, “before the

enactment of CPL article 440, no statute provided for an appeal to [the Court of

Appeals] in postjudgment proceedings,” instead, the Court of Appeals established

a “hands-off approach ... and imposed a limitation on [its] power of review.” Id. at

627–28. However, in Jones, the Court of Appeals explained that just “because

lower courts have ‘unlimited’ discretion in deciding whether a defendant is entitled

to vacatur of judgment and a new trial based on newly discovered evidence, their

determination is [not] somehow beyond reproach.” Id. at 629. Thus, the Court of

Appeals held that, now that the provisions of the Criminal Procedure Law provided

criminal defendants with procedural mechanisms to challenge their postjudgment

proceedings, “defendants whose newly discovered evidence motions are

summarily denied by the lower courts should have the opportunity, within the

strictures of CPL 450.90(1), to have those determinations reviewed under [an]

abuse of discretion standard[.]” Id.

Petitioner's present argument seeks to avoid those procedural strictures outlined

above. As stated by Jones, Petitioner had to follow the appeal options provided to

him in the Criminal Procedure Law and, as outlined by the Davis decision, in order

to continue the statutory tolling and bring his claims before the Court of Appeals,

Petitioner required permission from either a judge on the Court of Appeals or a

justice from the Third Department. He had neither. Therefore, his appeal did not

comply with the appropriate appeal mechanisms available in the Criminal

Procedure Law and it was dismissed. Petitioner's “futile attempt to appeal to the

Court of Appeals the [Third] Department's denial of leave to appeal did not toll the

limitations period because there was no longer a properly filed application

pending.” Davis, 2019 WL 1384587, at *2 (internal quotation marks omitted).

Coleman v. Melecio, No. 9:20-CV-0105 (LEK), 2021 WL 638272, at *3–4 (N.D.N.Y. Feb. 18,

2021).

Consequently, where, as here, the Appellate Division denies a defendant’s application for

leave to appeal from a denial of a Section 440.10 motion, the AEDPA limitations period begins

to run from the date of the Appellate Division’s decision, regardless of whether the defendant

attempts to seek further review from the New York Court of Appeals:

Under New York law, a petitioner may seek leave to appeal a trial court's denial of

a 440.10 post-conviction motion to the Appellate Division under CPL Section

450.15. See Klein v. Harris, 667 F.2d 274, 283-84 (2d Cir. 1981), overruled on

other grounds by Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 195 (2d

Cir. 1982) (en banc); see also Friedman v. Rehal, 618 F.3d 142, 152 (2d Cir. 2010).

However, if a justice of the Appellate Division denies a certificate for leave to

appeal pursuant to New York Criminal Procedure Law Section 460.15, a petitioner

may not appeal to the Court of Appeals. “Thus, once the Appellate Division denied

[the petitioner] leave to appeal the denial of his section 440.10 motion, he had

reached the end of the road within the state system.” Klein, 667 F.2d at 284

(internal quotation marks and citation omitted). Accordingly, “for purposes of

calculating the tolling provision of § 2244(d)(2), AEDPA's one year statute of

limitations is tolled from the date a petitioner files his ... 440.10 motion until the

date the Appellate Division denies the petitioner leave to appeal [the] decision [on

the 440.10 motion].” Wilkins v. Kirkpatrick, No. 06-CV-2151, 2009 WL 3644082, at

*7 (S.D.N.Y. Nov. 4, 2009).

Cosey v. Lilley, 460 F. Supp. 3d 346, 370 (S.D.N.Y. 2020).

Dean alternatively argues that his Article 78 motions and FOIL requests tolled the

limitations period. However, as already stated, FOIL requests and Article 78 motions seeking

records do not toll the AEDPA limitations period. See, Stein v. Stallone, 2019 WL 5578236, at

*7 (“The FOIL requests and related Article 78 petitions that petitioner filed between 2006 and

2014 seeking documents do not toll the limitations period. See Hodge v. Greiner, 269 F.3d 104,

107 (2d Cir. 2001).”); see also, Pleasant v. Capra, No. 116CV09842LAPSDA, 2018 WL

9539170, at *6 (S.D.N.Y. Aug. 1, 2018) (“Courts in this District have rejected the claim that the

limitations period be equitably tolled during the pendency of a petitioner's request pursuant to

New York's FOIL. . . . [T]he filing of FOIL requests do not constitute applications for State post-

conviction or other collateral review within the meaning of § 2244(d)(2).”) (citations and internal

quotation marks omitted), report and recommendation adopted, No. 16-CV-9842 (LAP), 2018

WL 9539116 (S.D.N.Y. Sept. 6, 2018).

Dean further appears to argue that two additional post-conviction motions he filed tolled

the statute. As mentioned earlier, those are a “Motion for New Trial of Arrest of Judgment” filed

with the Ontario County Supreme Court on April 27, 2015, and a “Motion to Inspect Grand Jury

Minutes and Dismiss Indictment Pursuant to NYS CPL § 210.20,” allegedly filed with the Ontario

County Supreme Court on May 15, 2016, both of which Dean maintains are still pending.

However, Dean’s argument on this point lacks merit, since the first “motion” was denied long

ago, and the second was never properly filed.

As to the first such motion, Ontario County Court records show no motion for a new trial

having been filed by Dean on April 27, 2015. However, Dean’s exhibits demonstrate that a letter-

motion for a new trial he submitted bearing that date was eventually denied by Judge Doran on

January 26, 2016, along with several other applications. Specifically, on January 26, 2016,

Judge Doran issued a Decision and Order denying a CPL § 440.10 motion by Dean dated

October 27, 2014, which Dean had “amended” with various submissions, including a “’Notice of

Motion for New Trial’ dated April 27, 2015.” See, ECF Nos. 25-3 and 26-3 at pp 156-162.25 In

sum, rather than treating Dean’s new-trial request dated May 27, 2015, as a separately-filed

motion, Judge Doran treated the submission as an amendment to the 440.10 motion, which he

denied “in all respects.” Id. In doing so, Judge Doran found that Dean had not shown that the

police or prosecution had used false evidence to convict him. Id. On these facts it is evident that

the “motion” was never treated by the state court as a separately filed attack on Dean’s

conviction, such as would toll the statute.26 Moreover, even if it were treated as such a motion,

the application is not still pending, contrary to what Dean claims, and did not toll the limitations

period beyond February 13, 2018.

As for the second motion, Ontario County records are similarly devoid of any reference

to Dean filing a “Motion to Inspect Grand Jury Minutes and Dismiss Indictment Pursuant to NYS

CPL § 210.20” with the Ontario County Supreme Court on May 15, 2016,27 nor is there any

indication that Judge Doran ever ruled on such a request. At most, the record contains a copy

of a letter that Dean purportedly sent to Judge Doran on September 16, 2016, inquiring about

such an application. See, ECF Nos. 25-3 & 26-3 at p. 136 (“I sent the Court a motion on May

15, 2016 pursuant to CPL § 210.20.”). However, Dean was aware when he filed the instant

25 A handwritten notation on the exhibit appears to indicate that Dean received the Decision and order on January

29, 2016.

26 This is consistent with the fact that Dean did not list this application in the Petition.

27 This fact is shown by Dean’s own exhibits, which include a printout of all documents he filed in his criminal action

in Ontario County. The Court’s staff also contacted the Ontario County Clerk’s Office by telephone and confirmed

that there is no record of Dean filing such a motion.

habeas Petition that Ontario County had no record of such a filing, as shown by the printout of

Dean’s state-court filings attached to the Petition. ECF No. 1-2 at p. 62. This is consistent with

the fact that Dean did not list such a motion in the Petition. In any event, the AEDPA limitations

period is tolled only by properly filed applications, and the purported “§ 210.20 motion” was not

properly filed for purposes of tolling the statute since the state court has no record of it.28

Finally, on this point, the 440.10 motion that Dean filed on May 4, 2018, did not toll the

limitations period because the one-year limitations period had already expired on February 13,

2018. Consequently, for the various reasons just discussed the Petition is not timely based on

statutory tolling.

Equitable Tolling Does Not Apply

Dean alternatively maintains that the limitations deadline should be extended due to

equitable tolling. As discussed earlier, Dean alleges the officials at Attica, as well as the police,

prosecutor and trial judge, hindered his efforts to file the Petition in a timely manner. However,

the Court again disagrees.

Firstly, Dean has not shown that officials at Attica prevented him from filing his habeas

petition in a timely manner. In that regard, Dean implies that he could have filed his Petition in

January 2018, which would have been timely, but for interference by officials at Attica, who failed

to properly respond to his request for a financial certification. However, Dean’s assertion in that

regard is vague and also disproven by exhibits attached to the Petition showing that Dean was

still working on the Petition as late as June 2018, almost four months after the AEDPA filing

deadline had expired. See, ECF No. 1-2 at p. 226 (Letter dated June 7, 2018, addressed to Joey

Clinton, DSP, Attica); see also, id. at pp. 227-241 (discussing Dean’s efforts in June 2018 and

28 On this point, in addition to the record, the Court’s staff also confirmed with staff at the Ontario County

Courthouse Clerk’s Office that there is no record of such an application.

July 2018 to complete the habeas petition). Moreover, the Petition was not signed by Dean until

August 13, 2018. Dean’s alternate contention that the police, prosecutor and trial judge acted

improperly and thereby hindered his efforts to gather evidence of his innocence is similarly vague

and unsubstantiated. Consequently, the Court finds that Dean has not made the required

showing for equitable tolling to apply. See, Dillon v. Conway, 642 F.3d at 362 (Ҥ 2244(d) may

be tolled only if the petitioner shows (1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way and prevented timely filing.”) (citation and

internal quotation marks omitted).

Dean Has Not Made a Gateway Showing of Actual Innocence

Finally, Dean’s papers contain protestations of innocence that the Court liberally

construes as attempting to assert a gateway showing of actual innocence. As discussed already,

such a showing would excuse Dean from complying with the AEDPA statute of limitations.

However, Dean does not come close to making the demanding showing required for the

exception to apply. Dean has not come forward with new, credible evidence of factual

innocence, as opposed to mere legal insufficiency, that would cause the Court to question the

outcome of the trial, or that could establish that any reasonable juror would have reasonable

doubt about his guilt. Rather, Dean essentially argues about the weight of the evidence and,

alternatively, unconvincingly maintains that he was convicted either because of a concerted

effort by the police, prosecutor and trial judge to railroad him, or because his attorney failed to

obtain suppression of evidence connecting him to the crimes. 29 On the other hand, there

appears to be very strong, if not overwhelming, circumstantial evidence of Dean’s actual guilt.

29 The Court’s characterization on this point is based on its review of the voluminous exhibits attached to the Petition

and over twelve-hundred additional pages of documents that Dean filed in opposition to Respondent’s motion. See,

ECF Nos. 25 & 26.

Consequently, the Court finds that Dean has not made a gateway showing of actual innocence.

The Petition is Untimely

For the various reasons discussed above the Court finds that the Petition is untimely,

since it was filed six months beyond the applicable AEDPA deadline of February 13, 2018, and

no equitable extension or exception applies. Accordingly, the Petition is dismissed.

CONCLUSION

The application under 28 U.S.C. § 2254 is dismissed. The Clerk of the Court is directed

to close this case. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of

appealability, since it does not find that reasonable jurists would find debatable that the Court is

correct in its procedural ruling that the Petition is untimely.°° The Court hereby certifies, pursuant

to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and

leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States,

369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be

directed on motion to the United States Court of Appeals for the Second Circuit in accordance

with Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.

Dated:Rochester, New York

July 27, 2022 ENTER:

sf °

aR □□□

United States District ge

30See, Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (“Where, as here, the denial of the habeas petition

is based upon procedural grounds, the certificate of appealability must show that jurists of reason would find

debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the applicant has

established a valid constitutional violation.”).

24