Opinion
02 CIV. 3900 (DLC)
December 26, 2002
Thomas A. Butti, Pro Se, 97-R-6402, Wyoming Correctional Facility, Attica, NY, for Petitioner.
John J. Sergi, Assistant District Attorney, White Plains, NY, for Respondent.
OPINION AND ORDER
Pro se petitioner Thomas Butti ("Butti") applies for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated, Butti's petition is not dismissed as time-barred.
Background
As set forth in Butti v. Supt. Gowanda Correctional Facility, No. 99 CIV. 1667 (DLC), 2000 WL 280039, at *1 (S.D.N.Y. Mar. 14, 2000) ("Butti I") which was filed on March 13, 2000, Butti was charged with insurance fraud and entered a plea of guilty in state court on August 18, 1994, to certain crimes connected to the insurance fraud charges based on an agreement between Butti and the Westchester County District Attorney (the "District Attorney"). Under that agreement, Butti was to cooperate with a continuing investigation of the insurance scheme. On February 12, 1997, Butti moved to withdraw his plea. The motion was denied and he was sentenced on September 5, 1997, principally to three to nine years in prison. Butti appealed and supplemented his counsel's papers on appeal with his own brief claiming, inter alia, ineffective assistance of counsel below. On April 16, 1998, the Appellate Division addressed certain claims, not including the claim of ineffective assistance of counsel, and held that the rest of the claims were unpreserved for appellate review, without merit, or based on matters outside the record. Leave to appeal to the Court of Appeals was denied on September 28, 1998. Butti's state court conviction became final ninety days thereafter on December 28, 1998. Pursuant to 28 U.S.C. § 2244(d)(1), Butti had one year, or until December 28, 1999, to file a habeas petition in federal court.
On March 5, 1999, Butti filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition I"). By Order dated May 19, 1999, Petition I was referred to Magistrate Judge James C. Francis. On December 17, 1999, Magistrate Judge Francis issued a Report and Recommendation ("Report") that Petition I be dismissed without prejudice for failure to exhaust one of its claims, to wit, that petitioner's counsel at the time his plea was entered provided ineffective assistance. On March 13, 2000, this Court adopted the Report and denied Petition I. Butti I, 2000 WL 280039, at *8.
On March 22, 2000, the Court received a letter from Butti asking whether the one-year statute of limitations under 28 U.S.C. § 2244(d)(1) will run with respect to his exhausted claims during the time he prosecutes his unexhausted claims. By Order dated March 27, Butti was advised that
the time limit for the filing of his petition is tolled, with respect to all of his claims, during the time during which a "properly filed application for State post-conviction reveiew" of his conviction is pending. See Smith v. McGinnis, [ 208 F.3d 13 (2d Cir. 2000) (per curiam)].
On May 31, 2000, Butti filed a motion to vacate his September 5, 1997 conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 in Westchester County Court. By letter to the Court dated September 6, 2000, Butti asked if after his unexhausted state court claim is exhausted, a new petition can be filed under the same case number as his original petition. By Order dated September 15, Butti was advised that
the original petition having been dismissed, any new petition will receive a new case number. That petition, however, will not be considered a "second or successive petition" for purposes of 28 U.S.C. § 2244. See Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir. 1996).
By letter dated July 3, 2001, Butti inquired whether the Supreme Court decision in Duncan v. Walker, 533 U.S. 167 (2001), affects his ability to file a federal habeas petition after exhaustion of state court review. By Order dated July 24, Butti was informed that
the original petition having been dismissed, this Court cannot respond to Butti's request for an advisory opinion. If and when Butti files a new habeas petition, and the parties are given an opportunity to be heard, the Court to whom the case is assigned will be able to address the effect of Duncan v. Walker, [ 533 U.S. 167 (2001)], on Butti's habeas claim.
On September 13, 2001, the Westchester County Court denied Butti's motion. On October 9, 2001, Butti filed an application for a certificate for leave to appeal the denial of his CPL § 440.10 motion in the New York State Supreme Court Appellate Division, Second Department. On March 11, 2002, Butti's application was denied.
Butti filed the instant petition on April 15, 2002 ("Petition II"). By Order dated July 18 (the "July 18 Order"), Butti was ordered to show cause by affirmation by September 20, 2002, why the one year statute of limitations should not bar Petition II. By letter to the Court dated October 2, Butti inquired whether an order to show cause was issued in the instant case. Having been informed that the July 18 Order was never docketed, and not having received any memoranda of law from Butti, the Court ordered Butti by Order dated October 30 to show cause by affirmation by December 16, 2002, why the one year statute of limitations should not bar Petition II.
The petition bears the date April 15, was received by the Pro Se Office of this District on April 19, and was docketed on May 22.See Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 122 S.Ct. 197 (2001) (prison mailbox rule).
Butti submitted in affirmation dated November 8. By letter dated December 2, the District Attorney responded. By letter dated December 11, Butti replied.
Discussion
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the one-year limitation period established by subsection 2244(d). 28 U.S.C. § 2244(d)(2). Thus, if Butti's limitations period was still running when he filed his Section 440.10 motion, the period would be tolled for the period of time from Butti's initial filing of the Section 440.10 motion in the Westchester County Court until denial by the Appellate Division of leave to appeal from the trial court's denial of reconsideration. See Carey v. Saffold, 536 U.S. 214, 268 (2002) (holding that § 2244(d)(2) excludes from the one-year limitations period the time between a lower state court's decision and the timely filing of a notice of appeal to a higher state court).
Butti filed his Section 440.10 motion approximately 520 days after his state court conviction became final. Since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," however, courts may equitably toll the period. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). Equitable tolling of the one-year limitations period for Section 2254 petitions is available "when extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.), cert. denied, 531 U.S. 968 (2000) (citation omitted). In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll." Id. (citation omitted). The causal link between the extraordinary circumstance and the lateness of a petitioner's filing cannot be demonstrated "if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000); see also Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001).
Butti argues that the limitations period should be equitably tolled during the period when Petition I was pending in this Court, and that if it is tolled, Petition II is not time-barred. The District Attorney responds that in Duncan, the Supreme Court held that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," Duncan, 533 U.S. at 181, and that Section 2244(d)(2) cannot, therefore, toll the limitation period during the pendency of Petition I.
The Second Circuit emphasized in Rodriguez v. Bennett, 303 F.3d 435 (2d Cir. 2002), that while "§ 2244(d)(2) does not cause exclusion of the federal petition's time of pendency," id. at 438, a court may still deem a limitations period tolled "as a matter of equity," id. Sixty-seven days passed from the date on which Butti's state court conviction became final (December 28, 1998) to the date on which he filed Petition I (March 5, 1999). Seventy-nine days passed from the date on which this Court dismissed Petition I (March 13, 2000) to the date on which Butti filed his Section 440.10 motion (May 31, 2000). Finally, thirty-five days passed between the date on which his application was denied (March 11, 2002) and the date on which he filed Petition II (April 15, 2002). Outside of the period of 374 days during which Petition I was pending, 181 days of the limitations period passed, which is well within the one-year limitation.
From the date on which his state court conviction became final to the date on which he filed Petition II, Butti has been very diligent. Butti is thus entitled to equitable tolling for the pendency of Petition I.
Conclusion
The Court having concluded that Petition II should not be summarily dismissed pursuant to Rule 4 of the Rules governing Section 2254 cases in the United States District Courts, it is hereby
ORDERED that the respondent shall file an answer in accordance with the Scheduling Order that accompanies this Opinion.