Holmes v. Miller
- Laura Swain
- 1:22-cv-06388
- U.S. District Court · Southern District of New York
- 6
In Holmes v. Miller, Judge Swain ordered Marvin Holmes to explain why his habeas petition should not be denied as untimely.
Marvin Holmes is required to file a declaration within 60 days addressing the possible filing deadline problem. Mark Miller is not required to answer at this stage.
What happened
In Holmes v. Miller, Marvin Holmes, who is incarcerated and representing himself, challenged his 2008 New York state conviction through a federal habeas petition. The court noted that Holmes placed the petition in the prison mail collection box on January 10, 2022, more than 10 years after the conviction became final.
The court said the petition may be barred by the federal one-year filing deadline. Holmes’s state post-conviction motion was filed in 2014, after that deadline had expired, so it did not appear to restart or pause the deadline. The court ordered Holmes to provide information about his state-court filings and explain any facts supporting a late-filing exception.
Judge Laura Taylor Swain ordered Holmes to file a declaration within 60 days explaining why the petition should not be denied as untimely. The court did not require Mark Miller to respond yet; it warned that the petition would be denied as time barred if Holmes failed to comply or did not show that it was timely. The court also declined to issue a certificate allowing an appeal and denied fee-free status for an appeal.
The detailed version
- Holmes v. Miller · No. 1:22-cv-06388
- Laura Swain
- July 29, 2022
Background
Marvin Holmes, who is incarcerated at Green Haven Correctional Facility and is proceeding without a lawyer, filed a federal petition challenging his 2008 conviction in New York Supreme Court, New York County. The court had previously granted his request to proceed without paying the filing fee. Holmes’s petition stated that the conviction occurred on June 18, 2018, but the court identified that date as an apparent typographical error and used June 18, 2008.
The New York Appellate Division affirmed the conviction on March 3, 2011, and the New York Court of Appeals denied leave to appeal on May 26,
- Because Holmes did not seek review in the Supreme Court of the United States, the federal court determined that the conviction became final on or about August 26,
- Holmes placed the federal petition in the prison mail collection box on January 10,
- The court received it on July 26, 2022, and said the reason for the delay between those dates was unclear.
Possible statute-of-limitations problem
A petition under 28 U.S.C. § 2254 generally must be filed within one year of the latest of specified events, including when the conviction becomes final. State post-conviction proceedings can pause the running of that period if they are filed before the federal limitations period expires. They do not restart the period when filed after it has expired.
Holmes alleged that he filed a state post-conviction motion under New York Criminal Procedure Law § 440.10 on November 5, 2014—more than three years after his conviction became final. The state trial court denied that motion on August 15, 2018. The Appellate Division affirmed on February 10, 2022, and the New York Court of Appeals denied leave to appeal on April 19, 2022. Because those state proceedings began after the federal one-year period appeared to have expired, the court concluded that they did not appear to pause the limitations period.
Order to file a declaration
The court directed Holmes to file a declaration within 60 days explaining why the petition should not be dismissed as time barred. The declaration must list the dates of his state post-conviction applications and motions, the state-court decisions, any appeals or requests for permission to appeal, the decisions on those appeals or requests, and the dates when Holmes received notice of those decisions.
The court also directed Holmes to identify facts showing that he pursued his rights diligently and that an extraordinary circumstance prevented him from filing on time. These facts could support equitable tolling, which is a possible court-recognized extension of a filing deadline in appropriate circumstances.
Disposition
The court did not dismiss or deny the petition at this stage. It ordered Holmes to file the declaration and stated that, if he filed it on time, the court would review it and decide whether further pleadings were warranted. No answer from Mark Miller was required at that time. The court stated that it would deny the petition as time barred if Holmes failed to comply without good cause or if his declaration did not show that the petition was timely.
The court also ruled that a certificate of appealability would not issue because Holmes had not then made a substantial showing that a constitutional right had been denied. It certified that an appeal would not be taken in good faith and denied Holmes fee-free status for purposes of an appeal.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.