15-1884
Franklin v. State of New York
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of May, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10
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12 STEVEN FRANKLIN,
13 Petitioner-Appellant,
14
15 -v.- 15-1884
16
17 STATE OF NEW YORK,
18 Respondent-Appellee.
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20
21 FOR APPELLANT: JOHN S. WALLENSTEIN, LAW OFFICE
22 OF JOHN S. WALLENSTEIN, Garden
23 City, New York.
24
25 FOR APPELLEE: JODI L. MANDEL (with Leonard
26 Joblove and Anthea H. Bruffee on
27 the brief) for Kenneth P.
28 Thompson, District Attorney of
1
1 Kings County, Brooklyn, New
2 York.
3
4 Appeal from a judgment of the United States District
5 Court for the Eastern District of New York (Weinstein, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Steven Franklin appeals from the judgment of the United
12 States District Court for the Eastern District of New York
13 (Weinstein, J.), dismissing his habeas corpus petition as
14 time-barred. We assume the parties’ familiarity with the
15 underlying facts, the procedural history, and the issues
16 presented for review. Franklin argues that he is entitled to
17 equitable tolling. A petitioner is entitled to equitable
18 tolling “only if he shows ‘(1) that he has been pursuing his
19 rights diligently, and (2) that some extraordinary
20 circumstance stood in his way’ and prevented timely filing.”
21 Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace
22 v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Equitable
23 tolling applies only in the ‘rare and exceptional
24 circumstance[].’” Smith v. McGinnis, 208 F.3d 13, 17 (2d
25 Cir. 2000) (alteration in original) (quoting Turner v.
26 Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)). No record
27 evidence supports Franklin’s assertion that an extraordinary
28 circumstance prevented him from timely filing his petition;
29 Franklin’s contention that he suffered from mental illness
30 is belied by his ability to draft, during the operative time
31 period, a motion to vacate the judgment in state court, and
32 diligently study for his GED exam.
33
34 For the foregoing reasons, and finding no merit in
35 Franklin’s other arguments, we hereby AFFIRM the judgment of
36 the district court.
37
38 FOR THE COURT:
39 CATHERINE O’HAGAN WOLFE, CLERK
40
2