Sterling v. Howard

Background

Ishmael Sterling, who is incarcerated at Woodbourne Correctional Facility and is representing himself, filed a petition under 28 U.S.C. § 2254 challenging his June 15, 2018, New York County conviction. According to the opinion, he pleaded guilty to second-degree burglary “as a sex motive felon,” second-degree sex abuse, and petit larceny, and was sentenced to ten years’ incarceration.

Sterling stated that he appealed his conviction to the Appellate Division, First Department, and that the New York Court of Appeals denied leave to appeal. He also stated that he filed a motion under New York Criminal Procedure Law § 440.20 to vacate his sentence, which the New York County Supreme Court denied. He said he did not appeal that denial.

Claims and timeliness issue

Sterling raised four grounds: an allegedly warrantless arrest; the victim’s failure to identify him from a photo array; DNA evidence that neither included nor excluded him; and ineffective assistance of counsel concerning the first three grounds. The ineffective-assistance claim was raised for the first time in the federal petition.

The court explained that a Section 2254 petition generally must be filed within one year under the federal habeas statute. Properly filed state postconviction proceedings can pause that one-year period if they were pending before the period expired, but they do not restart the period after it has already expired.

The court could not determine whether Sterling’s petition was timely. Sterling did not state when the Appellate Division ruled on his direct appeal or when the Court of Appeals denied leave to appeal, and publicly available records did not show that he appealed his conviction. The court also could not determine whether his state motion to vacate his sentence paused the federal filing period.

Order

The court directed Sterling to file a declaration within 60 days of the order explaining why the petition should not be dismissed as time barred. The declaration must list the dates of the Appellate Division’s ruling, the Court of Appeals’ ruling on leave, the state court’s decision on the sentence-vacatur motion, and any other rulings on postconviction applications or motions. Sterling was also directed to identify facts supporting diligent pursuit of his rights and any extraordinary circumstance that prevented timely filing.

The court stated that, if Sterling timely files a sufficient declaration, it will review it and, if appropriate, require David Howard to answer. If Sterling does not comply, cannot show good cause for failing to comply, or submits an insufficient declaration, the court will deny the petition as time barred. No answer was required at that stage. The court also declined to issue a certificate of appealability and denied permission to proceed without paying fees for an appeal, certifying that an appeal would not be taken in good faith. The order did not decide the merits of Sterling’s claims.