08-1576-pr
Gibson v. Artus

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
        At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of November, two thousand and ten.

PRESENT:

          AMALYA L. KEARSE,
          JOSÉ A. CABRANES,
          PETER W. HALL
                       Circuit Judges.


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DEWITT GIBSON,

                               Petitioner-Appellant,

          v.                                                                               No. 08-1576

DALE ARTUS,

                               Respondent-Appellee.

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FOR PETITIONER-APPELLANT:                                                SALLY WASSERMAN, New York, NY.




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FOR RESPONDENT-APPELLEE:                                    ASHLYN DANNELLY, Assistant Attorney
                                                            General of the State of New York (Andrew
                                                            M. Cuomo, Attorney General of the State of
                                                            New York, on the brief, Barbara D.
                                                            Underwood, Solicitor General, Roseann B.
                                                            MacKechnie, Deputy Solicitor General for
                                                            Criminal Matters, Priscilla Steward, Assistant
                                                            Attorney General, of counsel), New York, NY.


       Appeal from an Order of the District Court rejecting a petition for a writ of habeas corpus
(Lawrence E. Kahn, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.


        Petitioner-Appellant Dewitt Gibson (“petitioner”) appeals the March 21, 2008 judgment of
the United States District Court for the Northern District of New York, Gibson v. Artus,
Memorandum-Decision and Order, No: 9:04-CV-820 (LEK) (N.D.N.Y. Mar. 21, 2008), dismissing
as time-barred claims raised in his amended petition, and argues that New York’s persistent felony
offender statute, N.Y. Penal Law § 70.10, violates the constitutional principles enunciated in
Apprendi v. New Jersey, 530 U.S. 466 (2000). We assume the parties’ familiarity with the facts and
procedural history of this action.

         We review de novo a district court’s decision to grant or deny a petition for a writ of habeas
corpus. See, e.g., Overton v. Newton, 295 F.3d 270, 275 (2d Cir. 2002). Following the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214, federal habeas review of state court convictions has been narrowly circumscribed, see Felker v.
Turpin, 518 U.S. 651, 654 (1996) (acknowledging that AEDPA “work[ed] substantial changes” to the
ability of a federal tribunal to entertain a habeas petition). Where, as here, the challenged state court
decision was adjudicated on the merits, the writ may not issue unless the state court proceeding “(1)
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).

                                                           I.

        Petitioner’s initial petition, filed on July 14, 2004, alleged, inter alia, that his trial counsel was
ineffective because counsel failed to advise petitioner of his right, under New York law, to testify

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before the grand jury. In his amended petition for review, filed on June 7, 2007—more than three
years after his state conviction became final—petitioner alleged, inter alia, that his counsel provided
ineffective assistance because counsel failed to (1) raise a speedy trial challenge; (2) seek a dismissal
of the indictment because the trial court refused to hold a preliminary hearing; and (3) seek a
dismissal of the indictment because it did not bear petitioner’s name. The District Court dismissed
the claims set forth in the amended petition as time-barred.

           Because petitioner’s amended petition was filed well after the one-year statute of limitations
for habeas applications had run, see 28 U.S.C. § 2244(d)(1)(A), petitioner’s claims are timely if they
have a clear connection to the legal claims in the original petition, see Fed. R. Civ. P. 15(c) (“relation
back” principle), or if petitioner can show that extraordinary circumstances warrant equitable tolling.
See, e.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Petitioner, however, does not argue before
us that equitable tolling applies in his case, and therefore, we deem this issue foreclosed. See, e.g.,
Beatty v. United States, 293 F.3d 627, 632 (2d Cir. 2002). Accordingly, we consider only whether
petitioner’s claims in his amended petition have a clear connection to the claims in his original
petition. See Fed. R. Civ. P. 15(c).

          An amendment to a pleading has a clear connection to the original pleading when “the
amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out . . . in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Here, petitioner argues that the
ineffective assistance claims related back to the original claims because each involves the grand jury
stage of proceedings. In Mayle v. Felix, the Supreme Court limited claims in an amended petition to
those that arose from the same core facts alleged in the original petition, not those related generally
to petitioner’s trial, conviction, or sentence. 545 U.S. 644, 656-57 (2005). Mayle forecloses
petitioner’s argument that the new claims relate back to the original claims simply because all involve
the grand jury proceedings. The three allegations at issue in the new petition—namely, counsel’s
failure to (1) raise a speedy trial challenge; (2) seek a dismissal of the indictment because the trial
court refused to hold a preliminary hearing; and (3) seek a dismissal of the indictment because it did
not bear petitioner’s name—are in no way related to counsel’s alleged failure to inform petitioner of
his right to testify before the grand jury. The claims in the amended petition, therefore, do not relate
back to the claims in the original petition and are time-barred.

                                                        II.

        Petitioner also argues that the state court’s finding that he was a persistent felony offender
within the meaning of N.Y. Penal Code § 70.10 offended his Sixth Amendment right to a jury trial.
We recently upheld New York’s persistent felony offender statute, as interpreted by the New York
Court of Appeals, explaining that in the enactment of that statute, “predicate felonies alone expand


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the indeterminate sentencing range within which [a] judge has the discretion to operate, and that
discretion is cabined only by an assessment of defendant’s criminal history.” Portalatin v. Graham,
2010 WL 4055571, at *20 (2d Cir. Oct 18, 2010) (in banc). Under the circumstances, the claim that
New York’s persistent felony offender statute violated petitioner’s right to a jury trial under the Sixth
Amendment is without merit.

                                             CONCLUSION
       We reject all of defendant’s claims on appeal and find them to be without merit.
Accordingly, the judgment of the District Court is AFFIRMED.



                                                        FOR THE COURT,

                                                        Catherine O’Hagan Wolfe, Clerk of Court




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