23-7986 Box v. Lilley

In the United States Court of Appeals For the Second Circuit

August Term, 2024

(Submitted: December 13, 2024 Decided: December 20. 2024)

Docket No. 23-7986

KYLE A. BOX,

Petitioner-Appellant,

–v.–

LYNN LILLEY, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY,

Respondent-Appellee. *

Before: ROBINSON, NATHAN, Circuit Judges, and BRICCETTI, District Judge. †

* The Clerk’s office is directed to amend the caption as reflected above.

†Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York, sitting by designation. Petitioner-Appellant Kyle A. Box appeals from an order of the United States District Court for the Northern District of New York (Hurd, J.), dismissing his petition for relief pursuant to

as untimely. In Green v. United States,

(2d Cir. 2001), we held that when a motion nominally seeking an extension of time to file a § 2255 petition contains sufficient allegations to support a claim under § 2255, a district court is empowered, and in some instances may be required, to treat that motion as a substantive motion for relief under § 2255. We conclude that the logic of our decision in Green applies with equal force to § 2254 petitions. We thus VACATE and REMAND for the district court to assess whether Box’s June 2021 letter requesting an extension of time to file a § 2254 petition can reasonably be construed as a timely § 2254 petition.

Kyle A. Box, pro se, Napanoch, NY, for Petitioner- Appellant.

Barbara D. Underwood, Solicitor General, Ira M. Feinberg, Deputy Solicitor General for Criminal Matters, Jalina J. Hudson, Assistant Attorney General of Counsel, for Letitia James, Attorney General for the State of New York, New York, NY, for Respondent-Appellee.

PER CURIAM:

Petitioner-Appellant Kyle A. Box, representing himself, appeals from an

order of the United States District Court for the Northern District of New York

(Hurd, J.) dismissing Box’s

petition as untimely.

For the reasons set forth below, we VACATE and REMAND.

2 BACKGROUND

I. New York Proceedings

In 2017, Box was convicted in New York state court of nine criminal charges

arising out of an incident in which he allegedly stabbed a victim, set the victim’s

house on fire, and stole the victim’s vehicle. People v. Box,

, 1238-

39 (N.Y. App. Div. 2020). Box challenged these convictions before a New York

appellate court, which, in March 2020, ultimately affirmed his convictions for

second-degree murder, first-degree assault, second-degree arson, and two counts

of tampering with physical evidence.

at 1239–41. The court reversed Box’s

remaining convictions.

at 1241–43.

The New York Court of Appeals denied his application for leave to appeal

in June 2020. People v. Box,

(N.Y. 2020). Box then sought review

from the Supreme Court of the United States, which denied Box’s petition for a

writ of certiorari in January 2021. Box v. New York,

(2021).

Box subsequently filed a motion dated March 2021 in the New York trial

court for the assignment of counsel so he could request post-conviction relief

pursuant to New York Criminal Procedure Law § 440.10. The trial court denied

Box’s motion in May 2021, and, representing himself, in September 2021 Box filed

a NYCPL § 440.10 motion in the New York trial court seeking to vacate his

3 convictions. The New York trial court denied his motion two months later. The

appellate court then denied Box leave to appeal in May 2022, and he sought review

by the New York Court of Appeals. The Court of Appeals dismissed his

application, concluding that the Appellate Division’s order was not appealable.

The Court of Appeals subsequently denied Box’s motion for reconsideration in

November 2022. People v. Box,

(N.Y. 2022).

II. June 2021 Letter

On June 25, 2021, while the state proceedings were ongoing, Box filed a letter

with the Northern District of New York. Box provided his state case and

indictment numbers and expressed that he was writing to “maintain [his] right to

appeal to this court.” Suppl. App’x at 98. He stated that he was concerned that

his “year and 90 days is coming up from the initial denial” by the Court of Appeals

and asked the court for “either an extension for leave to appeal, or a clarification

on whether [his] 440.10 motion counts as ‘exhausting all revenues.’”

He also

asked the court to inform him if he needed to file an extension for leave to appeal

and, as an alternative, argued that the court should consider his letter as such a

request. Moreover, Box explained the basis for his challenge to the state court

convictions, stating that his “constitutional rights were violated” because he was

convicted “purely based on lay witness . . . testimony by police detectives.”

He

4 maintained that “no investigation occurred” as to his claims and that “no physical

evidence exist[ed] to contradict [his] claims of self defense.”

By letter dated July 2, 2021, the district court clerk’s office returned Box’s

submission to him, explaining that it accepts only documents that relate to an

existing case or that operate to open a new case. Suppl. App’x at 99. The clerk’s

office explained that it does not provide “legal guidance or direction” and that no

new case was being opened on Box’s behalf in the Northern District of New York.

III. District Court Proceedings

In October 2022, Box filed his § 2254 petition and included his June 2021

letter and the clerk’s response as exhibits. In opposition, the State argued that the

petition was untimely. The district court ultimately agreed with the State and

dismissed the petition. Box v. Lilley, No. 9:22-cv-1093,

, at *13

(N.D.N.Y. Nov. 8, 2023).

Specifically, the district court determined that Box’s convictions became

final on January 11, 2021, when the United States Supreme Court denied his

application for a writ of certiorari, and therefore, that he had until January 11, 2022,

to file his habeas petition pursuant to

(d)(1)(A).

. The court

further concluded that the deadline to file a petition was statutorily tolled from

5 September 2021 to May 2022, during the pendency of Box’s NYCPL § 440.10

motion. Id. at *6. Based on this tolling, the court concluded that Box’s § 2254

petition was due by August 23, 2022, and thus his October 2022 petition was

untimely. Id.

Citing Green v. United States,

(2d Cir. 2001), a panel of this Court

granted a certificate of appealability as to “whether the district court erred by not

construing a letter that Appellant filed with the court in June 2021, requesting a

filing extension, to be a timely

petition.” Motion Order, Box v.

Lilley, No. 23-7986 (2d Cir. May 3, 2024), ECF No. 16.

DISCUSSION

In Haines v. Kerner,

(1972) (per curiam), the Supreme Court

vacated an order granting a motion to dismiss a § 1983 complaint brought by a pro

se plaintiff, determining that the allegations “however inartfully pleaded, [were]

sufficient to call for the opportunity to offer supporting evidence.” Id. at 520. The

Court cautioned that briefing by self-represented litigants must be held “to less

stringent standards than formal pleadings drafted by lawyers.” Id.

Subsequently, in Green, a petitioner filed a motion for an extension of time

to file a petition for relief pursuant to

, which the government

opposed, and then asked the court to treat his motion for an extension as a

6 substantive § 2255 petition.

. The district court denied petitioner’s

motion for an extension, determining that his petition had become untimely while

the motion was pending.

Following the directive from Haines, this Court

vacated the district court’s decision and held that, in the context of a § 2255

petition, when “a motion, nominally seeking an extension of time, contains

allegations sufficient to support a claim under section 2255, a district court is

empowered, and in some instances may be required, under Haines to treat that

motion as a substantive motion for relief under section 2255.” Id. at 83. The Court

further held that regardless of “when a prisoner files a motion for extension of

time, the district court must first determine whether the motion contains

allegations supporting a claim for relief under section 2255. If it does, the district

court should construe it as such, and then decide whether the motion is timely.”

Id. (emphasis omitted).

While this Court has not extended Green to § 2254 petitions, we conclude

that its reasoning applies with equal force to such proceedings. See Littlejohn v.

Artuz,

, 363 n.1 (2d Cir. 2001) (per curiam) (noting “[S]ections 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” (cleaned up)). Some

district courts within this Circuit have recognized this, applying Green to § 2254

7 petitions and considering whether to treat a motion for an extension of time to file

a § 2254 petition as a substantive claim for relief. See, e.g., Jimenez v. Doe, No. 24-

cv-4281,

, at *2 (S.D.N.Y. June 5, 2024); Cruz v. Noeth, No. 17-cv-

06549,

, at *4 (W.D.N.Y. Nov. 6, 2018).

We uphold the district court’s reasoning except to the extent that the court

did not assess whether Box’s June 2021 letter requesting an extension of time can

reasonably be construed as a timely petition pursuant to the Court’s guidance in

Green. Accordingly, we remand for the district court to conduct this assessment.

CONCLUSION

For these reasons, we VACATE and REMAND to the district court for

further proceedings consistent with this Opinion.

8