UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK QUAHSYM S. PARKER, Petitioner, 23-CV-5921 (LTS) -against- ORDER TO AMEND SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, Respondent. LAURA TAYLOR SWAIN, Chief United States District Judge: Petitioner, who is currently incarcerated at Coxsackie Correctional Facility, brings this pro se petition challenging his June 28, 2019, conviction in the County Court, Dutchess County.1 For the reasons discussed below, the Court directs Petitioner to file an amended petition within 60 days of the date of this order. STANDARD OF REVIEW The Court may entertain a petition for a writ of habeas corpus 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.”

(a). Under Rule 4 of the Rules Governing § 2254 Cases, the Court has the authority to review and dismiss a § 2254 petition without ordering a responsive pleading from the state, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule 4; see Acosta v. Artuz,

(2d Cir. 2000).

1 Petitioner paid the filing fee to bring this action. The Court is obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons,

(2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States,

(2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman,

(quoting Traguth v. Zuck,

(2d Cir. 1983)). BACKGROUND Petitioner alleges that, on June 28, 2019, he pleaded guilty in the County Court, Dutchess

County, to criminal possession of a weapon in the second degree, driving while intoxicated, and unlawful possession of marijuana. He was sentenced to twelve years of imprisonment and five years of post-release supervision. Court records indicate that, on August 25, 2021, the New York Supreme Court Appellate Division, Second Department (“Appellate Division”), affirmed the conviction and, on November 22, 2021, the New York Court of Appeals (“Court of Appeals”) denied him leave to appeal. See People v. Parker,

(2d Dep’t Aug. 25, 2021), leave denied,

(2021). Petitioner raises two specific grounds for relief: (1) that the judge presiding over his case was a former prosecutor who had a “personal problem” with his father, Darren Parker, stemming

from a prior case and should have recused himself; and (2) that the trial court lacked jurisdiction to adjudicate the case. (ECF 1, at 3-4.) However, he provides a statement in support of the petition in which he gives a narration of the events leading to his arrest and his criminal proceedings. In that statement, Petitioner asserts other violations stemming from his criminal proceedings, but it is not clear whether he is raising these as additional grounds for relief from his conviction. DISCUSSION A. Applicable Statute of Limitations Petitioner’s application may be time barred. 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 for cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered

through the exercise of due diligence. See

(d)(1)-(2). If a direct appeal is taken, the conviction is final following “the expiration of [the] 90-day period of time to petition for certiorari in the Supreme Court of the United States.” Warren v. Garvin,

(2d Cir. 2000). Petitioner was convicted and sentenced on June 28, 2019, in the County Court, Dutchess County. The Appellate Division affirmed the conviction on August 25, 2021, and the Court of Appeals denied him leave to appeal on November 22, 2021. Petitioner’s conviction became final on February 21, 2022,2 following the expiration of the 90-day period to petition for certiorari in the Supreme Court, and he had until February 21, 2023, to file a timely petition. The Court received the petition on July 10, 2023,3 more than four months after the one-year statute of

limitations period had expired.

2 Because the end of the 90-day period fell on Sunday, February 20, 2022, the period continued to run until the next court-business day, Monday, February 21, 2022. See Fed. R. Civ. P. 6(a)(1)(C). 3 Petitioner signed the petition on July 6, 2023, and it was mailed to the court by his father. (See ECF 1, at 2.) Under the habeas statute, when postconviction motions are filed before the expiration of the statute of limitations, those motions and related state-court proceedings may toll the statute of limitations. See

(d)(2). Postconviction motions filed after the limitations period expires, however, do not start the limitations period anew. “[P]roper calculation of Section 2244(d)(2)’s 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,

(2d Cir. 2000). Section 2244(d)(2) applies only if a

petitioner’s postconviction motion was pending within the one-year limitations period. In the statement in support of the petition, Petitioner alleges that he filed a postconviction motion under New York Criminal Procedure Law § 440.10. (See ECF 1, at 8.) He does not provide the date he filed the motion or the date it was denied. Based on the information provided, it is not clear whether Petitioner’s postconviction proceedings in the New York state courts tolled the limitations period. The Court therefore grants Petitioner leave to submit an amended petition in which he alleges facts showing why this application should not be denied as time barred. B. Rule 2 of the Rules Governing Section 2254 Cases In addition, an individual who is incarcerated or restrained under a state court judgment

of conviction and seeks to challenge that conviction must submit a petition that conforms to the Rules Governing Section 2254 Cases. Rule 2(c) requires a petition to specify all of a petitioner’s available grounds for relief, setting forth the facts supporting each of the specified grounds and stating the relief requested. A petition must permit the Court and the respondent to comprehend both the petitioner’s grounds for relief and the underlying facts and legal theory supporting each ground so that the issues presented in the petition may be adjudicated. Petitioner does not clearly specify all of his grounds for relief and the supporting facts as required by Rule 2(c). The grounds he is raising and the constitutional basis for each ground are not clearly identified in the submission. Petitioner is directed to amend his petition to provide clear constitutional grounds for relief and facts to support them. C. Leave to Amend The Court grants Petitioner leave to submit an amended petition within 60 days of the date of this order. Petitioner is directed to allege facts showing why this application should not be denied as time barred. Petitioner should include in his amended petition a listing of the

following: (1) the dates on which he filed each of his postconviction collateral state court applications and motions in which he challenged this conviction, including any application for error coram nobis relief, all motions under New York Criminal Procedure Law § 440, and any other postconviction collateral applications and motions; (2) the dates on which the state courts issued decisions as to any of those applications or motions; (3) the dates on which he filed any appeals or applications for leave to appeal from those decisions; (4) the dates on which the state courts issued decisions on those appeals or applications; and (5) the dates on which he received notice of any state court decisions on those applications and appeals. Petitioner should allege any facts that show that he has been pursuing his rights diligently, that his postconviction filings

tolled the limitations period, or that some extraordinary circumstance prevented him from timely submitting this petition. See Holland v. Florida,

(2010) (holding that one-year limitations period under Section 2244(d) for habeas corpus petitions under

is subject to equitable tolling in appropriate cases). Should Petitioner decide to file an amended petition, it must comply with Rule 2(c) by clearly setting forth all of his grounds for habeas corpus relief and the facts that support each ground. Petitioner may do so by fully completing the Section 2254 amended petition form, laying out each constitutional claim and the supporting facts. Petitioner must also detail the steps he has taken to exhaust those grounds fully in the New York courts.4 Petitioner is advised that an amended petition completely replaces the original petition. Thus, he must include all facts and information in the amended petition that he would like the Court to consider. CONCLUSION The Court directs Petitioner to file an amended petition containing the information specified above. The amended petition must be submitted to this Court’s Pro Se Intake Unit

within 60 days of the date of this order, be captioned as an “Amended Petition” and bear the same docket number as this order. An Amended Petition Under

form is attached to this order, which Petitioner should complete as specified above. If Petitioner timely files an amended petition, the Court will review it and, if proper, will order the Respondent to answer. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be denied. No answer shall be required at this time. Because Petitioner has not at this time made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See

.

4 Prior to bringing a Section 2254 petition, an individual who is seeking relief from a state court judgment must exhaust all available state remedies. See

(b); see also Rose v. Lundy,

(1982). This exhaustion doctrine means that the state courts must be given the first opportunity to review constitutional errors associated with a petitioner’s confinement. O’Sullivan v. Boerckel,

(1999). The Court certifies pursuant to

(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States,

(1962). SO ORDERED. Dated: August 28, 2023 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge AO 241 Page | (Rev. 06/13)

Petition for Relief From a Conviction or Sentence By a Person in State Custody (Petition Under

for a Writ of Habeas Corpus)

Instructions 1. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief. 2. You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under

in the federal court that entered the judgment. 3. Make sure the form is typed or neatly written. 4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. 5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum. 6. You must pay a fee of $5. Ifthe fee is paid, your petition will be filed. If you cannot pay the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. If your account exceeds $ , you must pay the filing fee. 7. In this petition, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different court (either in the same state or in different states), you must file a separate petition. 8. When you have completed the form, send the original and copies to the Clerk of the United States District Court at this address: Clerk, United States District Court for Address City, State Zip Code 9. CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date. 10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.

AO 241 Page 2 (Rev. 06/13) AMENDED PETITION UNDER

FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY United States District Court District: Name (under which you were convicted): Docket or Case No.:

—

Petitioner (include the name under which you were convicted) Respondent (authorized person having custody of petitioner) v.

The Attorney General of the State of AMENDED PETITION

1. (a) Name and location of court that entered the judgment of conviction you are challenging:

(b) Criminal docket or case number (if you know): 2. (a) Date of the judgment of conviction (if you know): (b) Date of sentencing: 3. Length of sentence: 4. In this case, were you convicted on more than one count or of more than one crime? □□ Yes O No 5. Identify all crimes of which you were convicted and sentenced in this case:

6. (a) What was your plea? (Check one) oO qd) Not guilty O (3) Nolo contendere (no contest) Oo (2) Guilty Oo (4) Insanity plea

(b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to?

(c) If you went to trial, what kind of trial did you have? (Check one) ’ Jury ’ Judge only 7. Did you testify at a pretrial hearing, trial, or a post-trial hearing? ’ Yes ’ No 8. Did you appeal from the judgment of conviction? ’ Yes ’ No 9. If you did appeal, answer the following: (a) Name of court: (b) Docket or case number (if you know): (c) Result: (d) Date of result (if you know): (e) Citation to the case (if you know): (f) Grounds raised:

(g) Did you seek further review by a higher state court? ’ Yes ’ No If yes, answer the following: (1) Name of court: (2) Docket or case number (if you know): (3) Result: (5) Citation to the case (if you know): (6) Grounds raised:

(h) Did you file a petition for certiorari in the United States Supreme Court? ’ Yes ’ No If yes, answer the following: (1) Docket or case number (if you know): (2) Result:

(3) Date of result (if you know): (4) Citation to the case (if you know): 10. Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court? ’ Yes ’ No 11. If your answer to Question 10 was "Yes," give the following information: (a) (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes ’ No (7) Result: (b) If you filed any second petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes ’ No (7) Result: (8) Date of result (if you know): (c) If you filed any third petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: (6) Did you receive a hearing where evidence was given on your petition, application, or motion? ’ Yes ’ No (7) Result: (8) Date of result (if you know): (d) Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application, or motion? (1) First petition: ’ Yes ’ No (2) Second petition: ’ Yes ’ No (3) Third petition: ’ Yes ’ No (e) If you did not appeal to the highest state court having jurisdiction, explain why you did not: 12. For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date. GROUND ONE: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground One, explain why: (c) Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why:

(d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue: (e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground One:

GROUND TWO:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Two, explain why:

(c) Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why:

(d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you : have used to exhaust your state remedies on Ground Two

GROUND THREE: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground Three, explain why:

(c) Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why:

(d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available): (7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Three:

GROUND FOUR: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Four, explain why:

(c) Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? ’ Yes ’ No (2) If you did not raise this issue in your direct appeal, explain why:

(d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? ’ Yes ’ No (2) If your answer to Question (d)(1) is "Yes," state: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? ’ Yes ’ No (4) Did you appeal from the denial of your motion or petition? ’ Yes ’ No (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? ’ Yes ’ No (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Four: 13. Please answer these additional questions about the petition you are filing: (a) Have all grounds for relief that you have raised in this petition been presented to the highest state court having jurisdiction? ’ Yes ’ No If your answer is "No," state which grounds have not been so presented and give your reason(s) for not presenting them:

(b) Is there any ground in this petition that has not been presented in some state or federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them:

14. Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction that you challenge in this petition? ’ Yes ’ No If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues raised, the date of the court's decision, and the result for each petition, application, or motion filed. Attach a copy of any court opinion or order, if available.

15. Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for the judgment you are challenging? ’ Yes ’ No If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised. 16. Give the name and address, if you know, of each attorney who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing: (b) At arraignment and plea:

(c) At trial:

(d) At sentencing: (e) On appeal:

(f) In any post-conviction proceeding: (g) On appeal from any ruling against you in a post-conviction proceeding:

17. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? ’ Yes ’ No (a) If so, give name and location of court that imposed the other sentence you will serve in the future:

(b) Give the date the other sentence was imposed: (c) Give the length of the other sentence: (d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the future? ’ Yes ’ No 18. TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in

(d) does not bar your petition.* * The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in

(d) provides in part that: (1) A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of - (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 (2) 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. Therefore, petitioner asks that the Court grant the following relief: or any other relief to which petitioner may be entitled.

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on (month, date, year).

Executed (signed) on (date).

Signature of Petitioner If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is not signing this petition.