Opinion
03 CIV. 3169 (DLC).
August 14, 2006
MEMORANDUM OPINION ORDER
Anthony Colarusso brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his April 22, 1999 conviction for criminal possession of a controlled substance in the fourth degree. Colarusso, who pled guilty to the offense, asserts: (1) that he was stopped and searched without probable cause in violation of his Fourth Amendment rights; (2) that the state courts erred in failing to consider "critical" new evidence in his motion to vacate the judgment against him; (3) that police officers testified falsely at his suppression hearing; and (4) that his guilty plea was involuntary.
This petition was referred to Magistrate Judge Debra Freeman for a Report and Recommendation ("Report"), which was issued on January 24, 2006. The Report recommends that the petition be dismissed as untimely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-13, 110 Stat. 1214. See 28 U.S.C. § 2244(d)(1)(A). On April 5, 2006, Colarusso's objections to the Report ("Objections") were received. This Opinion adopts the Report.
Background
The facts relevant to this petition are set forth in the Report and summarized here. Colarusso was arrested on February 23, 1998, after New York City police officers pulled over the car he was driving, searched Colarusso and the two other passengers, and seized small amounts of marijuana and cocaine. After Colarusso and a fellow passenger were indicted, they moved to suppress evidence obtained during their arrests. On November 20, 1998, Colarusso's motion was denied in its entirety by Justice Jeffrey Atlas of the New York Supreme Court, New York County, but his co-defendant's motion was granted.
On February 22, 1999, Justice Atlas informed Colarusso that he was likely to receive a sentence of probation if he pled guilty. After conferring with his counsel, Colarusso entered a guilty plea, and the court conducted a plea allocution. Colarusso moved to withdraw his guilty plea on April 22, 1999, claiming that he had been on medication at the time and that his counsel may have been "overly insistent" that he accept the plea. The motion was denied, and Colarusso was sentenced to five years' probation.
William A. Gerard ("Gerard"), Colarusso's appellate counsel, claimed in proceedings in state court in 2000 that he attempted to file a notice of appeal within the 30-day window provided by New York law, but mistakenly put the wrong index number on the notice. The judgment against Colarusso therefore became final on May 22, 1999.
On October 1, 2000, Colarusso filed a motion to vacate his conviction under New York Criminal Procedure Law § 440.10 ("Section 440.10"). It is in connection with the preparation of this motion that Gerard claims he discovered that he had made an error in attempting to file the notice of appeal. Justice Atlas orally denied the motion on the merits at a hearing on August 28, 2001. The Appellate Division denied leave to appeal on April 26, 2002. Colarusso filed this action for a writ of habeas corpus on November 12, 2002, at the earliest.
Discussion
The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "A district court may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003) (citation omitted).
The Objections take issue with the Report's conclusion that Colarusso's habeas petition is untimely under the one-year statute of limitations established by AEDPA. Judge Freeman determined that Colarusso's limitations period began running on May 22, 1999, when the judgment against him became final. Judge Freeman concluded, Colarusso's time to file a habeas petition had already expired before the Section 440.10 motion was filed more than a year later.
Colarusso argues that the limitations period is equitably tolled because he justifiably relied on his attorney's claim that a notice of appeal had been filed. The Report correctly observes, however, that attorney error typically does not entitle a petitioner to avail himself of equitable tolling. See, e.g., Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). Only when an attorney's actions rise to the level of malfeasance can the AEDPA limitations period be equitably tolled. Bladayaque v. United States, 338 F.3d 145, 151-53 (2d Cir. 2003). Gerard's mistake in filing the notice of appeal is an error and not malfeasance. As a result, the limitations period is not equitably tolled, and Colarusso's petition is therefore untimely.
Conclusion
The recommendation of Magistrate Judge Freeman is adopted, and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. Colarusso has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find, pursuant to United States Code, Section 1915(a) (3), that any appeal from this order would not be taken in good faith.Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED: