Abodalo

UNITED STATES DISTRICT COURT FILED

EASTERN DISTRICT OF NEW YORK CLERK

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JALAL ABODALO,

U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Petitioner,

LONG ISLAND OFFICE

-against- MEMORANDUM AND ORDER

24-CV-7984 (GRB)

SUPERINTENDENT LILLEY,

Respondent.

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GARY R. BROWN, United States District Judge:

Petitioner Jalal Abodalo (“Petitioner”), proceeding pro se, petitions this Court for a writ

of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging a conviction and sentence for a

course of sexual conduct against a child in the first degree in the Supreme Court of the State of

New York, County of Nassau (the “trial court”). On this petition, Petitioner raises several

challenges to his conviction, most of which were reviewed on appeal by the New York Appellate

Division. People v. Abodalo, 178 A.D.3d 1067, 1067 (2d Dep’t. Dec. 24, 2019) (Abodalo I)

(affirming conviction after finding meritless defendant’s challenges to venue, sufficiency of the

evidence, interpreter errors, exclusion from sidebar conferences, prosecutorial comments during

summation and excessive sentence), leave to appeal denied, 35 N.Y.3d 967 (April 15, 2020)

(Abodalo II). Respondent has moved to dismiss on the grounds that the petition is untimely, and

defendant has failed to establish a basis for equitable tolling. On the record before the Court, the

petition is time-barred and, for the reasons that follow, is DISMISSED.

BACKGROUND

Petitioner was convicted following a jury trial of one count of first-degree course of

sexual conduct against a child on June 21, 2017. DE 8 at 8. In or around September 2017, he

retained Patrick Michael Megaro, Esq. to represent him in connection with sentencing, post-

conviction motion practice and appeal. Id. In December 2017, Megaro filed a motion for a new

trial under Criminal Procedure Law § 330.30. Id. at 9. The trial court denied the motion in an

April 2018 written decision and sentenced Petitioner in June 2018 to a determinate sentence of

14 years to be followed by five years of supervision. Id. The sentence was imposed

consecutively to a sentence Petitioner was serving based on an earlier conviction for similar

conduct. Id at 9-10.

That same month, Megaro filed a notice of appeal on Petitioner’s behalf. Id. at 10. After

full briefing, on December 24, 2019, the Appellate Division affirmed Petitioner’s judgment of

conviction, rejecting many of the same issues raised in the instant petition. Id. at 11; Abodalo I.

On January 21, 2020, Megaro sought leave to appeal to the New York Court of Appeals. DE 8 at

12. Leave to appeal was denied by written court order on April 15, 2020. See Abodalo II; DE 8-

7.

More than four years later, on November 6, 2024, Petitioner filed the instant petition. DE

1. In his petition, he stated under oath that:

In December 2019, Mr. Megaro informed me my appeal [to the Appellate

Division] was denied and he would file an Appeal to the Court of Appeals. [ ] It

was not until November 2nd, 2023 I received news from the Court of Appeals

that in fact an appeal had been filed but an order denying leave to appeal

had been issued.

DE 1 at 14 (emphasis added). In a declaration filed with the New York State Court of Appeals,

attached as an exhibit to his petition, Petitioner elucidated this point:

We were informed by Mr. Megaro that the appeal was denied on or about

December 24, 2019. At that time, Mr. Megaro informed my wife and myself that

he would file an appeal with the Court of Appeals and he also spoke about filing a

C.P.L. 440 motion. In March 2020, COVID-19 hit the Court system and for the

next two years, when we were able to contact Mr. Megaro, he would inform us

that the Court system was basically shut down and nothing was being processed.

However, he assured us that he was still following through with the Appeals on

my case.

Subsequent to 2021, we began to experience difficulties communicating

with Mr. Megaro and having him answer our inquiries. As time passed, lack of

communication was exacerbated. The last communication with Mr. Megaro was

an e-mail received from him in August 2021. [ ]

I do not know what steps, if any, Mr. Megaro took to appeal the denial of

my 330.30 motion and a direct appeal of the conviction, since our attempts to

communicate with him were unsuccessful.

DE 1-5 at 3-4. This narrative is notably silent on communications Petitioner had with Mr.

Megaro in April and May of 2020, an evidentiary gap that would prove revelatory.1

On this record alone, though, Respondent moved to dismiss, arguing that the petition was

untimely, and these facts failed to warrant equitable tolling. See DE 8. After submitting its

motion to dismiss—and before Petitioner submitted his reply, Respondent filed a supplemental

affidavit. DE 9. An attorney for the firm that had represented Petitioner provided information

highly relevant to these proceedings. The supplemental affidavit provides, in part, as follows:

On April 28, 2025, I received a phone call from Jaime T. Halscott, Esq., Megaro’s

former partner at Appeals Law Group.

Mr. Halscott informed me that, in response to my inquiry regarding [P]etitioner’s

case, he had searched the firm’s files and located pertinent information.

1 In his papers, Petitioner raised the troubling fact that Megaro was later disbarred in New York

(based upon his suspension from practice in North Carolina). However, examination of the

reported decision concerning that determination demonstrates that the disbarment determination –

substantively unrelated to the Petitioner or, for that matter, any activity in New York – post-dates

the relevant time periods in this case. See Matter of Megaro, 215 A.D.3d 67, 84 (2d Dep’t. April

12, 2023) (ordering Megaro’s disbarment in New York based upon an order of suspension by the

Disciplinary Hearing Commission of the North Carolina State Bar dated April 27, 2021).

Specifically, Mr. Halscott informed me that the firm’s files indicated that Mr.

Megaro received the leave application denial from the Court of Appeals via

regular mail on April 20, 2020, and, on that same day, Mr. Megaro called

[P]etitioner’s wife, Reem, and informed her of this development.

The firm’s files also indicated that on April 28, 2020, a staff member of the firm

arranged a legal phone call between Mr. Megaro and [P]etitioner at Eastern

Correctional Facility.

The firm’s files further indicate that the call between Mr. Megaro and [P]etitioner

took place on May 5, 2020, during which Mr. Megaro explained to [P]etitioner

that the Court of Appeals had denied his application for leave to appeal.

DE 9 at 2. The firm supplied contemporaneous notes documenting the calls to Petitioner and his

wife. See DE 9-1.

Confronted with this information, Petitioner substantially revised his account. Whereas

he has consistently maintained, under oath, both to this Court and the state court, that he was

unaware of the denial of his appeal until November 2023, he now concedes that “Petitioner does

not contest that on May 5, 2020 he spoke with Mr. Megaro and was informed that the application

for leave to the Court of Appeals had been denied.” DE 11 at 4. In a subsequent submission,

Petitioner summarized this turnabout succinctly:

Respondent basically is accusing me of being a liar because in my Petition, I

claimed Appellate Counsel “never told him that his leave application to the Court

of Appeals had been denied in April of 2020,” and it was not until November 2,

2023 that I learned an order denying Leave had been issued - and then in my

Reply, I state that on May 5, 2020, I concede when I spoke to Appellate Counsel,

I was informed the Leave had been denied.

DE 14 at 1.

Respondent’s motion to dismiss unfolds against this backdrop.

DISCUSSION

As the Second Circuit recently observed:

Petitions for habeas corpus by individuals “in custody pursuant to the judgment of

a State court” are subject to a one-year statute of limitations under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §

2244(d)(1). “This statute of limitations ‘quite plainly serves the well-recognized

interest in the finality of state court judgments.’” Zack, 704 F.3d at 919 (quoting

Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001));

see also Mayle v. Felix, 545 U.S. 644, 662, 125 S.Ct. 2562, 162 L.Ed.2d 582

(2005) (“Congress enacted AEDPA to advance the finality of criminal

convictions. To that end, it adopted a tight time line, a one-year limitation period

....” (internal citation omitted)).

AEDPA's one-year statute of limitations applies to “an application” for a writ of

habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period runs [ ]

from [as relevant here] the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.

Clemente v. Lee, 72 F.4th 466, 471 (2d Cir. 2023). In this case, Petitioner’s application for leave

to file an appeal with the New York Court of Appeals was denied on April 15, 2020. Abodalo II.

Petitioner had 90 days to seek a writ of certiorari from the United States Supreme Court. See

Rule 13(1), Rules of the Supreme Court of the United States. Having failed to do so, the

judgment of conviction became final for the purposes of the AEDPA upon the expiry of this

period, on July 14, 2020. 28 U.S.C. § 2244(d)(1)(A) (one-year limitation period runs from date

judgment becomes final by conclusion of direct review or expiration of time for seeking such

review); Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000) (same).

Thus, to be timely under the statute, Petitioner was required to file a petition on or before

July 14, 2021. Because the petition was not filed until November 6, 2024, more than three years

later, it is untimely. Only one possibility remains: equitable tolling. “Equitable tolling allows

courts to extend the statute of limitations beyond the time of expiration as necessary to avoid

inequitable circumstances.” Clemente, 72 F.4th at 478 (2d Cir. 2023). This doctrine “should be

applied only in rare and exceptional circumstances,” and only where a petitioner demonstrates

“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way and prevented timely filing.” Id. (quoting Holland v. Florida, 560 U.S. 631,

649, (2010)).

Having abandoned his position – repeatedly asserted under oath – that he was never

informed that the New York Court of Appeals denied his appeal, Petitioner has shifted to a more

nuanced contention: he now claims that the fact that his lawyer discussed other options with him,

including filing a C.P.L. § 440 motion, left him with the impression “that my lawyer Mr. Megaro

was fighting the case in various forms and there was no final determination.” DE 14 at 2. To be

sure, the law firm records supplied suggest that, upon the denial of leave to appeal in April 2020,

the attorney discussed with petitioner three options: (1) appeal to the U.S. Supreme Court; (2)

filing a C.P.L. § 440 motion and (3) the immediate filing of a 28 U.S.C. § 2254 habeas petition.

DE 9-1 at 2. While Petitioner’s filing of admittedly false sworn statements with this Court and

the New York Court of Appeals remains unexplained, the Court will fulfill its obligation to read

his pro se submissions “to raise the strongest arguments they suggest.” Ortiz v. McBride, 323

F.3d 191, 194 (2d Cir. 2003).

Petitioner’s initial position suggested that the attorney erred in failing to inform him of

the New York Court of Appeals’ determination. DE 1 at 14. Such conduct, if deemed egregious,

might be sufficient to warrant the application of equitable tolling. Doe v. Menefee, 391 F.3d 147,

175 (2d Cir. 2004) (“[E]gregious misconduct on the part of an attorney can, in some

circumstances, be sufficiently extraordinary to toll the limitations period”). However, the facts

eventually revealed prove far less concerning, as Petitioner’s argument now can at best be

characterized as a miscommunication between attorney and client concerning next steps, or a

misunderstanding on the part of Petitioner. DE 11 at 4 (“So far as Petitioner was concerned, the

denial of the leave to file an application to the Court of Appeals, was not final, it was still being

fought by Mr. Megaro.”). These events do not appear to rise to the level of “egregious

misconduct” or an “extraordinary circumstance.”

Even if these arguments could be so characterized, Petitioner’s efforts to invoke equitable

tolling must fail for yet another reason. As the Second Circuit has held:

Even where the extraordinary circumstances on which the petitioner rests his

claim involve attorney incompetence, the petitioner must still demonstrate that he

himself made reasonably diligent attempts to ensure that his petition was filed on

time. See Baldayaque, 338 F.3d at 153. In other words, the act of retaining an

attorney does not absolve the petitioner of his responsibility for overseeing the

attorney's conduct or the preparation of the petition. Particularly because

petitioners often are fully capable of preparing and filing their habeas petitions

pro se, and pro se status does not in itself constitute an extraordinary circumstance

meriting tolling, see Smith, 208 F.3d at 18, it would be inequitable to require less

diligence from petitioners who are able to hire attorneys than from those who are

forced to proceed pro se. In the attorney incompetence context, therefore, the

reasonable diligence inquiry focuses on the purpose for which the petitioner

retained the lawyer, his ability to evaluate the lawyer's performance, his financial

and logistical ability to consult other lawyers or obtain new representation, and

his ability to comprehend legal materials and file the petition on his own. See

Baldayaque, 338 F.3d at 153 (listing factors relevant to reasonable diligence that

district court should consider on remand).

Doe v. Menefee, 391 F.3d at 175. Here, several factors weigh heavily against Petitioner. First,

years elapsed between the expiry of the relevant period and the filing of the petition; though

Petitioner invokes delays attributable to COVID and his lawyer’s eventual disbarment, he

cannot, on this record, demonstrate that “he acted with reasonable diligence.” Id. at 176.

Second, in terms of the petitioner’s familiarity with the process and ability to file a habeas

petition, it is noteworthy that in March 2021 – a time well within the statute of limitations period

here – Petitioner retained separate, distinguished criminal counsel to file a 28 U.S.C. § 2254

petition in this Court to challenge an earlier conviction on similar charges. See Abadalo v.

Lilley, 21-CV-1311, DE 1 (petition filed by Barket Epstein Kearon Aldea & LoTurco, LLP on

Petitioner’s behalf.)

On this record, Petitioner cannot establish that extraordinary circumstances prevented the

timely submission of a habeas petition, or that he acted with appropriate diligence. Therefore,

the AEDPA limitations period is not subject to equitable tolling, and the petition is untimely

CONCLUSION

Based on the foregoing, Respondent’s motion is granted, and the petition is dismissed

with prejudice. A certificate of appealability shall not issue because Petitioner has not made a

substantial showing that she was denied any constitutional rights. See 28 U.S.C. § 2253(c)(2). I

certify that any appeal of this Order as to those issues would not be taken in good faith, and thus

in forma pauperis status is denied for the purposes of any appeal on those grounds. Coppedge v.

United States, 369 U.S. 438, 444–45 (1962)

The Clerk of the Court is respectfully directed to mail a copy of this Order to Petitioner

and to close the case.

SO ORDERED.

Dated: December 2, 2025

Central Islip, New York

/s/Gary R. Brown

HON. GARY R. BROWN

UNITED STATES DISTRICT JUDGE