# Babagana v. The People Of The State Of New York

> District Court, W.D. New York · July 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10663992

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10663992

## How later opinions describe it (automated extraction)

- stating that since statute of limitations applicable to § 2254 and § 2255 petitions is measured in years, “the last day for instituting the [petition] is the anniversary date of the start of the limitations period” (citing Fed. R. Civ. P. 6(a
- finding that the petitioner’s state coram nobis motion was “properly filed” on the date he delivered it to prison authorities for mailing

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MOUSSA BABAGANA, DECISION AND ORDER
Petitioner, 6:21-CV-06447 EAW
V.
PEOPLE OF THE STATE OF NEW
YORK,
Respondent.

1. INTRODUCTION
Moussa Babagana (“Petitioner”) filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Dkt. 1).! Petitioner challenges the constitutionality of the
judgment entered against him on March 31, 2016, in New York State Supreme Court, Erie
County (Michalski, A.J.) (“trial court”), following his guilty plea to two counts of second-
degree criminal possession of a weapon (New York Penal Law (‘P.L.”) § 265.03(3)), a
class C felony.? For the reasons below, the petition is dismissed as untimely.

Page citations to Petitioner’s and Respondent’s pleadings are to the pagination
automatically generated by the Court’s case management and electronic filing system
(CM/ECF) and located in the header of each page.
Petitioner filed the petition while he was in the custody of the New York State
Department of Corrections and Community Supervision, serving his sentence on the March
31, 2016 judgment of conviction. (See Dkt. 1 at 18). He was released to parole supervision
on September 22, 2021. See https://nysdoccslookup.doccs.ny.gov/ (results for DIN
16B1060 (last accessed July 8, 2024)). As required by this District’s Local Rules of Civil
Procedure, Petitioner timely updated the Court with his new address. (Dkt. 4).
-l-

Il. BACKGROUND
A. Indictment and Suppression Motion
On February 6, 2015, an Erie County grand jury returned an indictment charging
Petitioner with second-degree criminal possession of a weapon in violation of P.L.
§ 265.03(3) (possession of a loaded firearm not at his home or place of business) (count
one); failure to obey a stop sign in violation of Vehicle & Traffic Law § 1172(a) (count
two); and second-degree criminal possession of weapon in violation of P.L. §§ 265.03(3),
265.02(1) (felonious possession of a loaded firearm) (count three). (See Indictment,
Respondent’s Exhibit A (“Resp’t Ex. A”)).? Count one was based on the seizure of a .25-
caliber semi-automatic pistol recovered near the vehicle Petitioner was driving on
September 12, 2014, in the City of Buffalo; count two was based on the seizure of a .380-
caliber semi-automatic pistol following the execution of a search warrant at Petitioner’s
home on September 30, 2014. (/d.).
Petitioner brought a motion to suppress the weapon at issue in count one, arguing
that the preceding traffic stop was illegal and that the subsequently seized weapon must be
suppressed as the “fruit of the poisonous tree.” (See Petitioner’s Motion to Suppress,
Resp’t Ex. A). The prosecution conceded the traffic stop was illegal but argued that the

3 Respondent’s Exhibit A consists of the Erie County District Attorney’s Office’s file
in Petitioner’s case and the state court transcripts. Respondent’s Exhibits B through D (the
briefs and orders in connection with Petitioner’s direct appeal and motion to vacate the
judgment) are contained in a separately bound appendix. Respondent filed Exhibits A
through D manually on January 20, 2022.
-2-

“attenuation doctrine” rendered the search and seizure of the weapon lawful. (See
Prosecution’s Opposition, Resp’t Ex. A).
The trial court conducted a suppression hearing on July 28, 2015. (See July 28,

2015 Arraignment and Hearing Transcript, Resp’t Ex. A). At the hearing, one of the
arresting officers testified that during the September 12, 2014 traffic stop, Petitioner
refused to produce his identification and instead drove away at a high rate of speed. (Id. at
7-10). The officer and his partner pursued Petitioner, who ran a stop sign, drove over the
sidewalk into a vacant field, and crashed his car into a tree. (Id. at 11-14). After his car

came to rest, Petitioner jumped out and fled on foot but was apprehended about ten feet
away. (Id. at 14). The officers discovered a loaded semi-automatic pistol a few feet from
the driver’s side door of Petitioner’s car, in the path of flight. (Id. at 14-15).
On October 26, 2015, the trial court issued a written decision and order denying the
motion to suppress. (See October 26, 2015 Order, Resp’t Ex. A). The trial court found

that any taint from the illegal traffic stop was dissipated by Petitioner’s subsequent flight
and other illegal conduct, which provided the officers with reasonable cause to search him
and the general area where his car stopped. (Id. at 6-7).
B. Plea and Sentencing
On December 7, 2015, Petitioner appeared with counsel before the trial court and

entered a guilty plea to two counts of P.L. § 265.03(3) in satisfaction of the indictment.
(Transcript of December 7, 2015 Plea Hearing at 2, Resp’t Ex. A). Petitioner also agreed
to waive his right to appeal. (Id.). The trial court informed Petitioner that as a second
violent felony offender, he faced a minimum of seven years’ imprisonment and a maximum
of 15 years’ imprisonment on each conviction, which could be set to run consecutively,
plus concurrent terms of five years’ post-release supervision on each count. (Id. at 2-3, 5).
The trial court accepted Petitioner’s guilty plea and allowed him to remain on bail pending

sentencing. (Id. at 7-8, 9).
On March 31, 2016, the parties appeared for sentencing. (Transcript of March 31,
2016 Sentencing Hearing, Resp’t Ex. A). The trial court sentenced Petitioner to concurrent
seven-year determinate terms of imprisonment and concurrent five-year terms of post-
release supervision. (Id. at 6).

C. Direct Appeal
Represented by new counsel, Petitioner appealed to the Appellate Division, Fourth
Department, of New York State Supreme Court (“Appellate Division”). (Petitioner’s
Appellate Brief, Resp’t Ex. B). Petitioner argued that he did not knowingly and voluntarily
waive his right to appeal, that the trial court erroneously denied the suppression motion,

and that defense counsel was ineffective in failing to obtain the video recordings from the
police officers’ dashboard and body cameras and use them to challenge the traffic stop.
The Appellate Division unanimously affirmed the conviction on October 4, 2019, holding
that the appellate-rights waiver was valid and that the ineffectiveness claim did not survive
the guilty plea or the waiver of appellate rights. People v. Babagana, 176 A.D.3d 1627,

1627 (4th Dep’t 2010). The New York Court of Appeals denied leave to appeal on
December 4, 2019. People v. Babagana, 34 N.Y.3d 1075 (2019).
D. Motion to Vacate the Judgment
While his direct appeal was pending, Petitioner filed a pro se motion to vacate the
judgment pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10 (“440
motion”) on March 26, 2019. (440 Motion and Exhibits A through I, Resp’t Ex. D).
Petitioner argued that defense counsel was ineffective for failing to call an “exculpatory
witness” (i.e., the passenger in his vehicle at the time of the traffic stop, Ricky Foots
(“Foots’))* at the suppression hearing, failing to obtain the felony complaint to impeach
the arresting officer and challenge the chain of custody for the weapon, failing to
investigate the police cameras at the intersection where he allegedly ran the stop sign,
failing to rebut the prosecution’s attenuation argument, failing to file a motion to dismiss
based on Foots’s statements taking responsibility for the gun, and failing to disclose that
he (defense counsel) was “in talks” with the Erie County District Attorney’s Office

4 On February 6, 2015, the prosecutor sent a letter to Petitioner’s attorney stating that
Foots had appeared at the Erie County District Attorney’s Office pursuant to a grand jury
subpoena on January 20, 2015. (See Exhibit E to 440 Motion, Resp’t Ex. D). Prior to
being called before the grand jury, Foots told the prosecutor that the gun recovered after
the September 12, 2014 traffic stop was his gun and that he had it in his pocket that day.
(/d.). The prosecutor then confronted Foots with the laboratory results excluding him as a
contributor to the DNA found on the gun, as well as his statement to police immediately
after his arrest (“When I saw your lights, I asked my mans [sic], are you good? And he
said, “Nah man.””). (/d.). At that point, Foots elected to wait for his attorney before
speaking further with the prosecutor. (/d.). After his attorney arrived, Foots was read the
Miranda warnings. (/d.). Foots refused to answer any questions about the gun recovered
on September 12, 2014. (/d.). Foots stated he would not testify for the defense that the
gun was his; nor would he testify for the prosecution that he did not know the gun was in
Petitioner’s vehicle. (/d.). The record does not contain any other information about Foots
or the disposition of any criminal case against him.
-5-

regarding a job offer. The prosecution opposed the 440 motion. (See Prosecution’s
Affidavit, Resp’t Ex. D).
The trial court declined to hold a hearing and denied the motion in a written decision

and order dated July 8, 2019. (440 Order, Resp’t Ex. D). The trial court addressed each
of Petitioner’s contentions and concluded they were meritless. (Id. at 2-4). There is no
documentation in the state court records indicating that Petitioner filed an application for
leave to appeal to the Appellate Division.
E. Federal Habeas Petition

Petitioner filed this pro se habeas petition, raising the following grounds for relief:
(1) the guilty plea was involuntary because the trial court’s colloquy regarding the waiver
of appellate rights was insufficiently specific (“Ground One”) (Dkt. 1 at 6); (2) the
conviction was based on evidence obtained pursuant to an unconstitutional search and
seizure because the police lacked reasonable suspicion to stop Petitioner’s vehicle

(“Ground Two”) (id. at 7); and (3) defense counsel was ineffective for failing to “conduct
a reasonable investigation and set forth [a] reasonable defense to the charge,” failing to use
any of the dashboard or body camera videos, failing to investigate whether there was video
footage from police cameras located near the intersection that would have exonerated him
of the traffic violation, and failing to preserve Petitioner’s right to a direct appeal (“Ground

Three”) (id.).
Respondent filed an answer (Dkt. 6) and memorandum of law (Dkt. 7). Respondent
argues that the petition is untimely (id. at 8-9) and that, in the alternative, it does not raise
any grounds that warrant habeas relief (id. at 10-21). Petitioner did not file a reply.
III. JURISDICTION
A. “In Custody” Requirement
A federal court’s jurisdiction to consider a petition for a writ of habeas corpus is

limited to petitions filed on “behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(a)’s “jurisdictional
requirement has two components—‘custody’ that arises ‘pursuant to the judgment of a state
court’ that is under attack.” Piasecki v. Ct. of Common Pleas, Bucks Cnty., PA, 917 F.3d

161, 165-66 (3d Cir. 2019) (quoting 28 U.S.C. § 2254(a)). The fact that a petitioner’s
sentence expires while the petition is pending does not affect subject matter jurisdiction so
long as the petitioner was “‘in custody’ when the application for habeas corpus [was] filed.”
Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
As noted above, at the time he filed the petition, Petitioner was incarcerated and

serving the sentence imposed on the judgment of conviction he attacks in the petition.
Therefore, he meets § 2254(a)’s “in custody” requirement.
B. Mootness
Article III, Section 2 of the United States Constitution limits the subject matter of
the federal courts to cases that present a “case or controversy.” Spencer v. Kemna, 523

U.S. 1, 7 (2002). “[T]o satisfy the case-or-controversy requirement, a party must, at all
stages of the litigation, have an actual injury, which is likely to be redressed by a favorable
judicial decision.” United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999). “Unlike
the ‘in custody’ requirement, mootness is not fixed at the time of filing but must be
considered at every stage of the habeas proceeding.” Nowakowski v. New York, 835 F.3d
210, 217-18 (2d Cir. 2016).
“A criminal case does not necessarily become moot when the convict finishes

serving the sentence.” Mercurris, 192 F.3d at 293. As long as “there exists ‘some concrete
and continuing injury’ or ‘collateral consequence’ resulting from the conviction,” id.
(quoting Spencer, 523 U.S. at 7), “the case will remain a live case or controversy,” id.
Because Petitioner challenges the validity of his underlying felony convictions,
collateral consequences are presumed to exist, regardless of Petitioner’s detention status.

See, e.g., Burch v. Millas, 663 F. Supp. 2d 151, 157 (W.D.N.Y. 2009) (where the petitioner
challenged the underlying felony conviction that led to his detention, the presumption of
collateral consequences existed, notwithstanding the petitioner’s completion of his
sentence (citing Spencer, 523 U.S. at 7-8)). Therefore, the petition presents a live case or
controversy.

IV. TIMELINESS
A. Statute of Limitations
Petitions brought under the authority of 28 U.S.C. § 2254 are subject to a one-year
statute of limitations that begins to run upon the latest of four events:
(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).
Because there will be a “judgment of conviction” in all criminal cases, subsection
(A) of § 2244(d)(1) usually governs the commencement of the limitations period for § 2254
petitions. See Simmons v. United States, 974 F.3d 791, 798 (6th Cir. 2020) (in the context
of habeas petition filed under 28 U.S.C. § 2255, “the one-year period will, as a default, be
triggered by Section 2255(f)(1)” since “[t]he ‘judgment of conviction’ referenced in
Section 2255(f)(1) is the only event mentioned in Section 2255(f) that will necessarily
occur in every case”); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 815-16 (2d Cir.
2000) (stating that 28 U.S.C. §§ 2254 and 2255 are generally seen as in pari materia” and
therefore “the reasoning of [cases] in the context of § 2255 petitions applies equally to
§ 2254 petitions”).
“Habeas corpus relief may be sought in excess of one year of a conviction becoming
final if the circumstances set forth in 28 U.S.C. § 2244(d)(1)(B)[, ](C)[,] or (D) are
present.” Sorce v. Artuz, 73 F. Supp. 2d 292, 294 (E.D.N.Y. 1999). In addition, “[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.” 28 U.S.C. § 2244(d)(2).
To determine the date on which an application for post-conviction or other collateral
review in state court is “properly filed” for purposes of § 2244(d)(2), the Second Circuit
applies the prison mailbox rule, not the state’s filing rules. See Fernandez v. Artuz, 402

F.3d 111, 114, 116 (2d Cir. 2005) (finding that the petitioner’s state coram nobis motion
was “properly filed” on the date he delivered it to prison authorities for mailing). “[A]
state-court petition is ‘pending’ from the time it is first filed until finally disposed of and
further appellate review is unavailable under the particular state’s procedures.” Bennett v.
Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff’d, 531 U.S. 4 (2000); see also Carey v. Saffold,

536 U.S. 214, 217, 221 (2002) (approving Second Circuit’s definition of “pending”).
“With regard to filing dates, the Supreme Court and the Second Circuit both appear
to consider the date on which a post-trial collateral challenge is filed to be excluded from
the limitations period.” Brooks v. Sticht, No. 20-CV-1108 (JLS), 2022 WL 1190456, at
*13 (W.D.N.Y. Apr. 21, 2022) (quoting Chrysler v. Guiney, 14 F. Supp. 3d 418, 439

(S.D.N.Y. 2014)). As far as when tolling ends, “[t]he prevailing approach in the Second
Circuit is ‘not to exclude from the limitations period the date on which a state court files a
final judgment resolving the pending motion or petition.’” Id. (quoting Chrysler, 14 F.
Supp. 3d at 439). In other words, the date on which the state court issues its final order
counts against the time remaining on the limitations period.

B. Filing Date of the Petition
Because Petitioner is unrepresented and incarcerated, he is entitled to application of
the prison mailbox rule, which provides that “a pro se prisoner’s habeas petition is deemed
filed at the moment he gives it to prison officials.” Hardy v. Conway, 162 F. App’x 61, 62
(2d Cir. 2006). The Second Circuit has “never required prisoners to provide affidavits of
service to verify when they give their documents to prison officials.” Id. “Indeed, in the
absence of contrary evidence, district courts in this circuit have tended to assume that

prisoners’ papers were given to prison officials on the date of their signing.” Id. (collecting
cases).
Here, Petitioner signed and dated the petition on June 3, 2021 (Dkt. 1 at 9), and it
was postmarked June 7, 2021 (id. at 18). With no evidence to the contrary, the Court deems
the petition to have been handed over to prison officials, and therefore filed, on June 3,

2021. See Corrigan v. Barbery, 371 F. Supp. 2d 325, 328 n.4 (W.D.N.Y. 2005).
C. The Petition Is Untimely Under Section 2244(d)(1)(A), and Section
2244(d)(2) Does Not Provide Any Statutory Tolling
Petitioner has not challenged Respondent’s choice of start-date. Under subsection
(A), a state conviction becomes “final” when the United States Supreme Court denies an
application for a writ of certiorari or when the time to seek certiorari has expired, which is
90 days following the date on which direct review by the state’s highest court is complete.
See Gonzalez v. Thaler, 565 U.S. 134, 140 (2012) (“For petitioners who pursue direct
review all the way to this Court, the judgment becomes final at the ‘conclusion of direct

review’—when this Court affirms a conviction on the merits or denies a petition for
certiorari. For all other petitioners, the judgment becomes final at the ‘expiration of the
time for seeking such review’—when the time for pursuing direct review in this Court, or
in state court, expires.”); U.S. Sup. Ct. R. 13(1).
The New York Court of Appeals denied Petitioner’s application for leave to appeal
on December 4, 2019, and Petitioner did not seek a writ of certiorari from the Supreme
Court. The conviction therefore became final 90 days later, on March 3, 2020. Petitioner

had one year from March 3, 2020, or until March 3, 2021, in which to file the instant § 2254
petition. See, e.g., Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (stating that since statute
of limitations applicable to § 2254 and § 2255 petitions is measured in years, “the last day
for instituting the [petition] is the anniversary date of the start of the limitations period”
(citing Fed. R. Civ. P. 6(a); Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990)). The

petition, filed three months after the expiration of the one-year period, is untimely under
28 U.S.C. § 2244(d)(1)(A).
The Court next considers the amount of tolling, if any, available under 28 U.S.C.
§ 2244(d)(2) based on the 440 motion. The pro se 440 motion was signed and dated on
March 26, 2019. Typically, that would initiate the period of tolling. See, e.g., Wilkins v.

Kirkpatrick, No. 06 CIV. 2151 SCRLMS, 2009 WL 3644082, at *9 (S.D.N.Y. Nov. 4,
2009) (“[T]he date the [p]etitioner dated and signed his [C.P.L. § ]440.10 motion and has
sworn that he mailed that motion . . . initiates the tolling of the statute of limitations under
28 U.S.C. § 2244(d)(2).”). But the 440 motion was filed over one year before the
conviction became final. The statute of limitations therefore had not started running.

The 440 motion was denied by the trial court on July 8, 2019. However, it “did not
cease to be pending on that date, because [P]etitioner still was entitled to seek discretionary
leave to appeal the denial of that motion, and indeed was required to do so in order to
exhaust any of the claims raised therein.” Vincent v. Lape, No. 07-CV-6007L, 2007 WL
4224198, at *3 (W.D.N.Y. Nov. 26, 2007) (footnote omitted (citing N.Y. Crim. Proc. Law
§§ 450.15, 460.10(4))). Since Petitioner did not seek leave to appeal to the Appellate
Division, the 440 motion ceased to be pending on August 7, 2019, when the 30-day period

for seeking leave to appeal to the Appellate Division expired. Id. (collecting cases).
Because the 440 motion ceased to be pending before the statute of limitations started
to run, it did not provide any statutory tolling. See, e.g., Nichols v. Brown, No. 09 Civ.
6825(NRB), 2012 WL 555043, at *2 n.6 (S.D.N.Y. Feb. 21, 2012) (finding that the
petitioner’s first C.P.L. § 440.10 motion was “irrelevant for purposes of [28 U.S.C.

§ 2244(d)(1)]’s limitations period because it was denied prior to the completion of [his]
direct appeal and hence prior to the time when the statute of limitations had begun to run”).
D. The Start-Dates in Subsections (B), (C), and (D) Do Not Apply
Petitioner does not suggest that he was impeded from filing in a timely fashion by
any state action, and therefore subsection (B) does not apply. Likewise, Petitioner is not

relying on any right made retroactively applicable on collateral review, which means that
subsection (C) is inapplicable.
The Supreme Court has noted that subsection (D) applies “if the petition alleges
newly discovered evidence . . . .” McQuiggin v. Perkins, 569 U.S. 383, 383 (2013). To
rely on subsection (D), the petitioner “must be able to show that there is some new ‘factual

predicate’ to his claim that only recently could have been discovered.” Duamutef v.
Mazzuca, No. 01CIV2553WHPGWG, 2002 WL 413812, at *8 (S.D.N.Y. Mar. 15, 2002).
““[T]he question for purposes of Section 2244(d)(1)(D) is not when petitioner received a
particular document, but when ‘the factual predicate of the claim . . . could have been
discovered through the exercise of due diligence.’” Romano v. Stanford, No. 16-CV-5884
(RPK), 2022 WL 1488661, at *12 (E.D.N.Y. May 11, 2022) (quoting 28 U.S.C.
§ 2244(d)(1)(D)). “[I]f 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).” Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012) (agreeing with its
sister circuits that the term “factual predicate,” as used in § 2244(d)(1)(D), consists only of
the “facts vital to a habeas claim”).

The Court has considered whether any of Petitioner’s habeas claims rely on a
“factual predicate” that could not have been discovered until sometime after his conviction
became final. None of them do. Grounds One and Two concern events that occurred prior
to, or during the guilty plea. Petitioner clearly was aware of the relevant “factual
predicates” during the traffic stop itself and the later guilty plea. See, e.g., Breeden v.

Phillips, No. 05-CV-1248 (RJD), 2005 WL 1971016, at *3 (E.D.N.Y. Aug. 15, 2005)
(“[P]etitioner cannot claim that his challenge to his consecutive sentence was unknown to
him. Because these claims are based on petitioner’s sentencing on July 16, 1996, section
2244(d)(1)(D) is inapplicable.”).
The allegation in Ground Three based on defense counsel’s purported failure to

preserve his right to a direct appeal is based on an affidavit from counsel dated March 2,
2017, in support of Petitioner’s motion to file a late notice of appeal—which ultimately
was granted. (See Exhibit I to 440 Motion, Resp’t Ex. D).
The remaining allegations in Ground Three pertain to defense counsel’s alleged
failure to investigate and utilize video footage from the arresting officer’s dashboard and
body cameras and from surveillance cameras near the intersection where Petitioner

allegedly ran a stop sign after he fled the traffic stop. Such video footage cannot be “newly
discovered” since it would have been created at the time of the crime and could have been
obtained earlier through the exercise of due diligence. See Plato v. Morrissey, 638 F. Supp.
2d 338, 345 (W.D.N.Y. 2009) (“Where documents [or other evidence] could ‘have been
obtained earlier through the exercise of due diligence,’ a petitioner’s procurement of them

under a belated FOIL [or other] request does not constitute ‘new evidence’ under §
2244(b)(1)(D).” (second brackets in original (quoting Sorce, 73 F. Supp. 2d at 298))).
Petitioner also was present at the suppression hearing where defense counsel allegedly
should have used this video footage, meaning that he was aware of counsel’s omissions at
that time. Thus, Petitioner cannot fulfill the criteria in § 2244(d)(1)(D).

Accordingly, the only potential start-date is found in § 2244(d)(1)(A), and the
petition is untimely because it was filed more than a year after Petitioner’s conviction
became final. The petition must be dismissed unless Petitioner can demonstrate an
exception to the limitations period—either that he is entitled to equitable tolling, Pace v.
Diguglielmo, 544 U.S. 408, 417 (2005); or that he is actually innocent, McQuiggin, 569

U.S. at 386.
E. Equitable Tolling
Section 2244(d)(1)’s limitations period “‘is subject to equitable tolling in
appropriate cases’—specifically, where 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.’” Rivas, 687 F.3d at 538 (quoting Holland v. Florida, 560 U.S.
631, 645, 649 (2010)). It is only “in ‘rare and exceptional circumstances’ [that] a petitioner
may invoke the courts’ power to equitably toll the limitations period.” Doe v. Menefee,
391 F.3d 147, 159 (2d Cir. 2004) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.

2000) (internal quotation marks and citations omitted in original)).
The petitioner bears the burden of establishing extraordinary circumstances and a
diligent pursuit of his rights. See Pace, 544 U.S. at 418 (“Generally, a litigant seeking
equitable tolling bears the burden of establishing [the required] two elements.”). Petitioner
has not attempted to carry this burden. This Court independently has reviewed the record

but can find no basis to conclude that this is one of those “rare and exceptional [cases],”
Menefee, 391 F.3d at 159, in which equitable tolling is warranted.
F. Actual Innocence
The Supreme Court has held that “actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a procedural bar, . . . or . .

. expiration of the statute of limitations.” McQuiggin, 569 U.S. at 386. The petitioner must
come forward with “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. 298, 324 (1995), and that shows it is “more likely than not
that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” /d.at
327.
Although “[a] claim of actual innocence could provide a basis for excusing [a] late
filing even though petitioner pled guilty,” Friedman v. Rehal, 618 F.3d 142, 152 (2d Cir.
2010), Petitioner has never attempted to show that he is actually, factually innocent of the
crimes to which he pleaded guilty. Therefore, he has failed to meet the “threshold
requirement,” McQuiggin, 569 U.S. at 386, of a gateway claim of actual innocence.
V. CONCLUSION
For the reasons above, the petition (Dkt. 1) is dismissed as untimely. Because
Petitioner has failed to meet the standards in 28 U.S.C. § 2253(c)(1), (2), the Court declines
to issue a certificate of appealability. The Clerk of Court is directed to close this case.
SO ORDERED. □ /
_
ELI Kiog EEN A □
Shief hidge
United States District Court
Dated: July 22, 2024
Rochester, New York

-17-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10663992. Public record. Not legal advice.