Opinion
01 Civ. 7737 (VM) (AJP)
June 27, 2002
REPORT AND RECOMMENDATION
Petitioner Danny Colon, pro se, seeks a writ of habeas corpus from his April 17, 1996 conviction in Supreme Court, New York County, of first and second degree robbery, and sentence to concurrent terms the longest of which was ten years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Colon's petition raises three habeas grounds: (a) his conviction was obtained by use of evidence obtained pursuant to an unlawful arrest (Pet. ¶ 12(A)); (b) ineffective assistance of trial counsel (Pet. ¶ 12(B)); and (c) the prosecution's failure to disclose favorable evidence to the defense (Pet. ¶ 12(C)).
The State moves to dismiss the petition as barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (See Dkt. Nos. 12-13.)
For the reasons set forth below, the Court agrees that Colon's petition is time barred and should be dismissed.
PROCEDURAL BACKGROUND
State Court Proceedings Petitioner Colon was convicted after a jury trial of one count of first degree robbery and two counts of second degree robbery, and sentenced (as a persistent violent felony offender) to concurrent terms of ten years to life imprisonment on the first degree robbery count and eight years to life on each of the two second degree robbery counts. (See Dkt. No. 1: Pet. ¶¶ 1-4; Dkt. No. 12: Affidavit of Asst. Attorney General Beth J. Thomas ("Thomas Aff.") ¶ 2.)
The First Department affirmed Colon's conviction on June 21, 1998, and the New York Court of Appeals denied leave to appeal on August 18, 1998. People v. Colon, 251 A.D.2d 2, 674 N.Y.S.2d 9 (1st Dep't), appeal denied, 92 N.Y.2d 895, 680 N.Y.S.2d 59 (1998). (See also Thomas Aff. ¶¶ 5-6 Exs. B-C.)
Colon filed a C.P.L. § 440 motion in the trial court on January 24, 1999, which was denied on June 4, 1999. (Thomas Aff. ¶¶ 7-8 Exs. E-F.) On July 9, 1999, Colon sought leave to appeal to the First Department, which denied leave to appeal on October 20, 1999 (entered on October 26, 1999). (Thomas Aff. ¶¶ 9-12 Exs. G, J.) Colon sought leave to appeal to the New York Court of Appeals, which denied leave to appeal on December 21, 1999. (Thomas Aff. ¶ 13 Ex. K.)
On September 18, 2000, Colon filed a coram nobis petition in the First Department, alleging ineffective assistance of appellate counsel. (Thomas Aff. ¶ 14 Ex. L; Dkt. No. 4: Colon 8/30/01 Aff. Ex.) The First Department denied Colon's coram nobis petition on June 14, 2001. (Thomas Aff. ¶ 15 Ex. N.)
Colon's Federal Habeas Petition Colon's present federal habeas corpus petition is dated June 24, 2001 and was received by the Court's Pro Se Office on June 29, 2001. (Dkt. No. 1: Pet. pp. 2, 7.)
On August 17, 2001, Chief Judge Mukasey ordered Colon to show cause why his petition was not time barred. (Dkt. No. 3:8/17/01 Order.) Colon's response affidavit stated that since August 18, 1998, he "has been exhausting all state remedies" (Dkt. No. 4: Colon 8/30/01 Aff. at p. 1), and set out the dates of his state collateral proceedings (id. at pp. 1-2).
On April 30, 2002, the State moved to dismiss Colon's habeas petition as time barred. (Dkt. Nos. 12-13.)
ANALYSIS
The Antiterrorism and Effective Death Penalty Act ("AEDPA") instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
. . . .
(2) The 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 any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
The AEDPA one-year limitations period started to run here on November 16, 1998, ninety days after the New York Court of Appeals denied Colon's leave to appeal on August 18, 1998, when the time to file a petition for certiorari expired. Williams v. Artuz, 237 F.3d 147, 150-51 n. 1 (2d Cir.), cert. denied, 122 S.Ct. 279 (2001).
Accord, e.g., Brown v. Artuz, 283 F.3d 492, 497 n. 1 (2d Cir. 2002); Matias v. Artuz, 8 Fed. Appx. 9, 10 (2d Cir.), cert. denied, 122 S.Ct. 93 (2001); Wheeler v. Artuz, 6 Fed. Appx. 57, 57 (2d Cir. 2001); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5 11 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Bonilla v. Ricks, 00 Civ. 79225, 2001 WL 253605 at *2 (S.D.N.Y. Mar. 14, 2001) (Peck, M.J.); Shaw v. Mazzuca, 00 Civ. 6941, 2001 WL 66404 at *2 (S.D.N.Y. Jan. 26, 2001) (Peck, M.J.); 28 U.S.C. § 2244(d)(1)(A).
The Second Circuit has held that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000). "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases).
See also, e.g., Steadman v. Senkowski, No. 99-2449, 234 F.3d 1263 (table), 2000 WL 1591268 at *1 (2d Cir. Oct. 23, 2000) ("the tolling provision of 28 U.S.C. § 2244(d)(2) excludes time while a state relief application is pending but does not reset the date on which the limitations period begins"); Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *9 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Stokes v. Miller, 00 Civ. 0806, 2000 WL 640697 at *2 (S.D.N.Y. May 18, 2000) (Peck, M.J.), report rec. adopted by 2000 WL 1121364 (S.D.N.Y. July 21, 2000) (Berman, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *6 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Mojica v. David, 99 Civ. 1990, 2000 WL 631385 at *2 (S.D.N.Y. May 16, 2000) (Peck, M.J.), report rec. adopted by 2000 WL 991391 (S.D.N.Y. July 19, 2000) (Cote, D.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *3 (S.D.N.Y. Mar. 9, 2000) (Sprizzo, D.J. Peck, M.J.); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Lucidore v. New York State Div. of Parole, 99 Civ. 2936, 1999 WL 566362 at *4 (S.D.N.Y. Aug. 3, 1999) (Peck, M.J.), aff'd, 209 F.3d 107 (2d Cir.), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *3 (S.D.N.Y. July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. Apr. 29, 1999) (Peck, M.J.), report rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.).
Accord, e.g., Smith v. McGinnis, 208 F.3d at 17; Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 2000 WL 1663437 at *9; Stokes v. Miller, 2000 WL 640697 at *2; Foreman v. Garvin, 2000 WL 631397 at *6; Mojica v. David, 2000 WL 631385 at *2; Lucidore v. New York State Div. of Parole, 1999 WL 566362 at *4.
As noted above, Colon's conviction became final and the AEDPA limitations period started on November 16, 1998. The AEDPA limitations period ran until tolled by Colon's C.P.L. § 440 motion, which Colon filed on January 24, 1999. Thus, from November 16, 1998 until January 24, 1999, 69 days had run. The C.P.L. § 440 motion tolled the AEDPA limitations period until June 4, 1999, when the trial court denied the motion, and that toll continued through October 26, 1999 when the First Department denied leave to appeal. Carey v. Saffold, 122 S.Ct. 2134 (2002) ("[A]n application is pending [for AEDPA tolling purposes] as long as the ordinary state collateral review process is `in continuance' — i.e., `until the completion of' that process.").
Colon is not entitled to a further toll of the AEDPA limitations period for the time during which his application for leave to appeal to the New York Court of Appeals was pending (i.e., from October 26, 1999 to December 21, 1999), since New York does not provide for leave to appeal to the Court of Appeals from the Appellate Division's denial of leave to appeal from the trial court's denial of a C.P.L. § 440 motion. See, e.g., Ramos v. Walker, 88 F. Supp.2d 233, 234 n. 3, 235 n. 9 (S.D.N.Y. 2000) ("There is no provision in New York law for an appeal to the [New York] Court of Appeals from an order denying leave to appeal from an order denying a Section 440.10 motion.") (citing People v. Grossmann, 87 N.Y.2d 1003, 1003, 642 N.Y.S.2d 856, 856 (1966), People v. Corso, 85 N.Y.2d 883, 883, 626 N.Y.S.2d 753, 753 (1995)); accord, e.g., Felton v. Mazzuca, 98 Civ. 4567, 2002 WL 655207 at *3 n. 1 (S.D.N.Y. Apr. 18, 2002); Luke v. Edwards, 168 F. Supp.2d 104, 108 n. 7 (S.D.N.Y. 2001); Forman v. Artuz, 99 Civ. 9046, 2000 WL 378056 at *3-4 (S.D.N.Y. Apr. 11, 2000) (Peck, M.J.), report rec. adopted in part by 2000 WL 1099935 at *3, *6 (S.D.N.Y. June 14, 2000) (Berman, D.J.).
See also, e.g., Hizbullahankhamon v. Walker, 255 F.3d 65, 70-72 (2d Cir. 2001) (no AEDPA toll for period seeking leave to appeal to Court of Appeals from Appellate Division's denial of a coram nobis petition, since such "appeal" is unavailable under state law), cert. denied, No. 01-8722, ___ S.Ct. ___, 2002 WL 1306135 (2002); Harrison v. Artuz, 12 Fed. Appx. 56, 58 (2d Cir. 2001), cert. denied, 122 S.Ct. 835 (2002); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.), cert. denied, 531 U.S. 1018, 121 S.Ct. 581 (2000); Love v. Khulman, 99 Civ. 11063, 2002 WL 662886 at *2 (S.D.N.Y. Apr. 23, 2002); Davis v. McLaughlin, 01 Civ. 6673, 2001 WL 1537554 at *1 (S.D.N.Y. Nov. 30, 2001); People v. Howard, 89 N.Y.2d 857, 857, 652 N.Y.S.2d 735, 735 (1996); People v. Abdullah, 84 N.Y.2d 975, 975, 622 N.Y.S.2d 904, 904 (1994); People v. de Leon, 83 N.Y.2d 779, 779-80, 611 N.Y.S.2d 126, 126 (1994).
Thus, the AEDPA period started again on October 26, 1999, and was tolled on September 18, 2000, when Colon filed his state coram nobis petition. From October 26, 1999 to September 18, 2000 is 328 days. When added to the 69 days that had run prior to the filing of
Colon's C.P.L. § 440 motion, a total of 397 days had run — more than the one year (365 days) period allowed under the AEDPA.
The First Department denied Colon's coram nobis petition on June 14, 2001, and Colon's habeas petition is dated June 24, 2001, so that another 10 days ran.