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Case 1:13-cv-02326-ENV Document 4 Filed 06/04/13 Page 1 of 7 PageID #: 21

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x
VICTOR MATOS,

Petitioner,

-against-

MEMORANDUM AND ORDER

13-CV-2326 (ENV)

SUPERINTENDENT, Washington, Correctional
Facility,

Respondent.

x

VIT ALIANO, D.J.

Petitioner Victor Matos, who is currently incarcerated, on a judgment of

conviction entered in Queens County, at the Washington Correctional Facility in Comstock

New York, brings this pro§£ petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. Petitioner's request to proceed in forma pauperis is granted. For the reasons set

forth below, petitioner is directed to submit an affirmation, within 30 days of the docketing

of this Order, showing cause why the petition should not be dismissed as time-barred.

Background

On April15, 2013, the Court received an undated petition consisting of an

older version of a form "Petition Under 28 USC§ 2254," incompletely filled in, challenging

a Queens County conviction for criminal sale of a controlled substance. On April16, 2013,

the Court received a typed supplemental petition that did not identify the conviction it

challenged. Both petitions reference a writ of error coram nobis filed in the Appellate

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Case 1:13-cv-02326-ENV Document 4 Filed 06/04/13 Page 2 of 7 PageID #: 22

Division, Second Department. No dates are provided for the conviction or any other court

proceedings.

The Court takes judicial notice of petitioner's incarceration in the custody of

the New York State Department of Corrections and Community Supervision, under

Department Identification Number ("DIN") 09-A-3689, on a Queens County conviction

that included criminal possession of a controlled substance in the second degree. 1

Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

established a one-year statute of limitations for § 2254 petitions filed after its effective date.

AEDPA provides that 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

1 This information can be found in the inmate look-up service provided by the New York State
Department of Corrections at http://nysdoccslookup.doccs.ny.gov/GCAOOPOO/WIQ2/
WINQ120.

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Case 1:13-cv-02326-ENV Document 4 Filed 06/04/13 Page 3 of 7 PageID #: 23

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). If a "properly filed" application for State post-conviction or other

collateral review with respect to the judgment of conviction was "pending" at any time

during that one-year period, the time during which this application was pending does not

count toward the one-year period. 28 U.S.C. § 2244(d)(2).

Though unusual, the AEDPA's statute of limitations may be equitably tolled.

Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (per curiam), cert. denied, 531 U.S. 840 (2000).

"Equitable tolling, however, is only appropriate in 'rare and exceptional ci.rcumstances."'

Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001), cert. denied, 535 U.S. 1017 (2002)

(quoting Smith, 208 F .3d at 17). A petitioner "must demonstrate that he acted with

'reasonable diligence' during the period he wishes to have tolled, but that despite his

efforts, extraordinary circumstances 'beyond his control' prevented successful filing during

that time." Id.; see also Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir. 2003),

Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000).

A district court can "raise a petitioner's apparent failure to comply with the

AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117,121 (2d

Cir. 2000). See also Day v. McDonough, 547 U.S. 198, 209 (2006) ("[D)istrict courts are

permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's

habeas petition"). Nonetheless, "unless it is unmistakably clear from the facts alleged in

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Case 1:13-cv-02326-ENV Document 4 Filed 06/04/13 Page 4 of 7 PageID #: 24

the petition, considering all of the special circumstances enumerated in Section 2244( d)(1 ),

equitable tolling, and any other factors relevant to the timeliness of the petition, that the

petition is untimely, the court may not dismiss a Section 2254 petition for untimeliness

without providing petitioner prior notice and opportunity to be heard." Acosta, 221 F.3d

at 125 (citing Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999) and Logo v. Keane, 15

F.3d 29, 30 (2d Cir. 1994)).

In this case, Matos has not provided sufficient information to determine

whether his application for habeas corpus relief would be timely. The Court concludes that

petitioner desires to challenge the 2009 Queens County conviction upon which he currently

appears to be in state custody.2 Accordingly, petitioner is directed to show cause by

affirmation, within 30 days from the docketing of this Order, why the AEDPA statute of

limitations should not bar the instant petition.3 See Day, 547 U.S. at 209-10; Acosta, 221

F .3d at 125. Should petitioner file an affirmation, he must include the dates of his

conviction and the dates on which each and every appeal or request for collateral relief was

filed and how each was decided or terminated, along with any facts and documentary

evidence that would support tolling of the statute of limitations.

No response shall be required from respondent at this time, and all further

proceedings shall be stayed until Matos has complied with this Order or his time to do so

has expired. If petitioner fails to comply with this Order within the time allowed, the

2 1 A § 2254 petitioner must "be 'in custody' under the conviction or sentence under attack at the
time his petition is filed." Maleng v. Cook, 490 U.S. 488,490-91 (1989). When a petitioner's
sentence for a conviction has fully expired (including post-release supervision), the conviction
may not be challenged because the petitioner is no longer "in custody" pursuant to that
conviction. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394,401-02 (2001).
3 An affirmation form is attached to this Order for petitioner's convenience.

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Case 1:13-cv-02326-ENV Document 4 Filed 06/04/13 Page 5 of 7 PageID #: 25

instant petition may be dismissed without further warning as time-barred.

SO ORDERED.

Dated: Brooklyn, New York

May 31,2013

United States District Judge

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s/ ENVCase 1:13-cv-02326-ENV Document 4 Filed 06/04/13 Page 6 of 7 PageID #: 26

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------](
VICTOR MATOS,

Petitioner,

-against-

SUPERINTENDENT, Washington, Correctional
Facility,

------------------------------------------------------------

Respondent.

STATE OF ___ _ _

}

](

} ss:

COUNTY OF _ __ _

}

MEMORANDUM AND

ORDER

13-CV-2326 (ENV)

I, VICTOR MATOS, make the following affirmation under the penalties of

perjury:

1.

I am the petitioner in this action and I respectfully submit this affirmation in response to

the Court's order dated ______ , 2013. The instant petition should not be time-barred by

the AEDPA's one-year statute of limitations b e c au s e - - - - - - - - - - - - - - -

[YOU MAY ATTACH ADDITIONAL PAGES, IF NECESSARY]

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Case 1:13-cv-02326-ENV Document 4 Filed 06/04/13 Page 7 of 7 PageID #: 27

2.

In view of the foregoing, it is respectfully submitted that the instant petition should be

permitted to proceed.

Dated:

Signature

Address

City, State & ZIP

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