Kindell v. Capra

Background

Eugene Kindell, who was incarcerated at Sing Sing Correctional Facility, filed a self-represented petition challenging his December 19, 2011 conviction in New York Supreme Court, New York County. The opinion states that Kindell paid the required filing fees.

The New York Appellate Division, First Department, affirmed the conviction on March 9, 2017. The New York Court of Appeals denied leave to appeal on June 23, 2017. The federal court determined that the conviction became final on September 22, 2017, after the 90-day period for seeking review by the United States Supreme Court expired. Kindell placed his federal petition in the prison mail collection box on January 8, 2020.

Timeliness issue

The court explained that, under the Antiterrorism and Effective Death Penalty Act, a person seeking federal review of a state conviction generally must file within one year of the latest of several specified events. The court stated that Kindell’s petition appeared to be time-barred because it was filed more than two years and three months after his conviction became final.

Kindell alleged that he filed a state-court motion to set aside his sentence on May 28, 2018. The New York state court denied that motion on May 10, 2019; Kindell alleged that he did not receive the decision until June 27, 2019. The federal court explained that properly filed state post-conviction proceedings can pause the federal limitations period if they are pending during that period, but proceedings filed after the period expires do not restart it. Because Kindell’s state-court motion was filed after the federal limitations period had expired, the court stated that the state proceedings did not appear to pause the deadline.

Order

The court directed Kindell to file a declaration within 60 days explaining why the petition should not be denied as time-barred. The declaration was to include facts addressing whether he had pursued his rights diligently and whether an extraordinary circumstance prevented timely filing. The court also directed him to list the dates and outcomes of all state post-conviction applications and related appeals or requests for permission to appeal, including when he received notice of those decisions.

The court stated that, if Kindell timely filed a proper declaration, it would review it and could order the respondent to answer. If he failed to comply and could not show good cause for that failure, the court stated that it would deny the petition as time-barred. At this stage, the court did not require an answer from the respondent.

The court also stated that a certificate permitting an appeal would not issue because Kindell had not then made the required substantial showing that a constitutional right was denied. It further denied permission to appeal without paying filing fees. The order itself did not deny the petition; it directed Kindell to explain why denial should not occur.