Full title: DIEGO PILLCO, Petitioner, v. MARK BRADT, Respondent
Court: United States District Court, S.D. New York
Date published: Aug 26, 2010
Facts
Petitioner pled guilty to one count of Manslaughter in the First Degree, under section 125.20 of the New York Penal Law, which is a Class B violent felony. On March 13, 2008, Petitioner was sentenced to a determinate period of twenty-five years in custody plus five years of post-release supervision. Petitioner did not appeal his conviction or sentence.
In his Affirmation, Petitioner states because he does not understand English, he entrusted his legal papers to an inmate law library clerk for assistance with the preparation of a New York Criminal Procedure Law § 440.20 motion (“section 440.20 motion”). The inmate clerk took possession of the Petitioner’s legal papers and began preparing the 440.20 motion in late 2008. However, the inmate was subsequently transferred out of Pillco’s facility and Pillco’s legal papers were misplaced. In addition, the computer that stored Pillco’s section 440.20 motion was removed from the law library before he had a chance to retrieve and print his file. With the assistance of another inmate, Petitioner filed his section 440.20 motion on May 28, 2009, after the deadline for his habeas petition had passed. The trial court denied the section 440.20 motion on July 9, 2009. The instant Petition was mailed to the Court on October 15, 2009, but not filed until March 17, 2010.
Issue
Decision
For the reasons set forth above, the Petition is hereby dismissed. The final question is whether to grant a Certificate of Appealability (“COA”). For a COA to be issued, a petitioner must make a “substantial showing of the denial of a constitutional right.” A “substantial showing” does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could debate whether “the petition should have been resolved differently or that the issues presented were `adequate to deserve encouragement to proceed further.'” Petitioner has made no such showing. Accordingly, I decline to grant a certificate of appealability. The Clerk of the Court is directed to dismiss the instant Petition and close this case.