Verrilli v. Gonyea
- Vincent Briccetti
- 7:17-cv-07886
- U.S. District Court · Southern District of New York
- 5
In Verrilli v. Gonyea, Judge Briccetti denied Pasquale Verrilli’s federal petition challenging his conviction as untimely.
Pasquale Verrilli’s federal petition challenging his state-court conviction was denied as untimely; Paul Gonyea and the Department of Corrections and Community Supervision were the respondents.
What happened
In Verrilli v. Gonyea, Pasquale Verrilli asked the federal court to review his state-court conviction. A magistrate judge recommended dismissing the petition because it was filed too late.
The court found that the one-year filing period began on August 17, 2010, and expired on August 17, 2011. Verrilli filed his federal petition on October 6, 2017. The court found that neither state-court filing rules nor special circumstances extended the deadline.
Judge Briccetti adopted the recommendation in full and denied the petition. The court entered judgment, closed the case, declined to issue a certificate allowing an appeal, and certified that any appeal would not be taken in good faith.
The detailed version
- Verrilli v. Gonyea · No. 7:17-cv-07886
- Vincent Briccetti
- Apr. 23, 2020
Background
Pasquale Verrilli filed an amended petition seeking federal review of his state-court conviction under 28 U.S.C. § 2254. Magistrate Judge Judith C. McCarthy recommended dismissing the petition as untimely. Verrilli, who was representing himself, objected to the recommendation, arguing that extraordinary circumstances justified extending the filing deadline.
The opinion states that Verrilli was convicted in Orange County Court on December 12, 2007, and sentenced on March 7, 2008. The state appellate court affirmed the conviction on January 26, 2010, and the New York Court of Appeals denied leave to appeal on May 19, 2010. Because Verrilli did not seek review by the United States Supreme Court, the district court determined that his conviction became final on August 17, 2010.
Court’s analysis
Under the Antiterrorism and Effective Death Penalty Act, a federal petition challenging a state conviction generally must be filed within one year after the conviction becomes final, subject to certain statutory and equitable extensions. The court calculated that Verrilli’s filing deadline was August 17, 2011. He filed his original federal petition on October 6, 2017.
The court held that statutory tolling did not apply because Verrilli did not file a state post-conviction application before the one-year period expired. His state application, filed on July 23, 2013, could not restart an already expired deadline. The court also held that equitable tolling—an extension based on diligence and extraordinary circumstances—was unavailable. It found that Verrilli had not shown that he pursued his rights diligently or identified an extraordinary circumstance that prevented timely filing. The court noted that, even though Verrilli claimed he did not receive trial transcripts for five years, he still waited two years to file the federal petition and had access to the transcripts when he filed his 2013 state-court challenge.
Disposition
Judge Briccetti adopted Magistrate Judge McCarthy’s Report and Recommendation in its entirety. The petition was DENIED. The Clerk was instructed to enter judgment and close the case. The court also declined to issue a certificate of appealability because Verrilli had not made a substantial showing that a constitutional right was denied, and certified that any appeal would not be taken in good faith.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.