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concluding that the petitioner was not entitled to equitable tolling where he contended that he suffered from Grave's disease as well as mood and paranoia swings, and had been repeatedly hospitalized and given medication
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02 Civ. 7067 (RWS)
September 26, 2003
GLENN COX, Otisville Correctional Facility, Otisville, NY, Petitioner Pro Se
HONORABLE ROBERT T. JOHNSON, HAE JIN LIU, Bronx County Bronx, NY, for Respondent
OPINION
Petitioner Glenn Cox ("Cox") has petitioned for habeas relief pursuant to 28 U.S.C. § 2254, naming as respondent Ernest Edwards, the Superintendent of Otisville Correctional Facility, where Cox is currently incarcerated. The State has moved to dismiss the petition. For the reasons set forth below, the motion to dismiss is granted.
Prior Proceedings
On February 25, 1992, a judgment was rendered following a jury trial in the Supreme Court of the State of New York, Bronx County, convicting Cox of murder in the second degree, N.Y. Penal Law § 125.25 [1], and sentencing him to an indeterminate term of imprisonment of from fifteen years to life.
On November 12, 1993, while his direct appeal was pending, Cox moved to vacate the judgment pursuant to New York's C. P. L. § 440.10, alleging that he was not provided with Rosario material, namely the medical examiner's notes and the autopsy tape relating to the victim. Cox's motion was denied on March 28, 1994.
The result of Cox's direct appeal was a reduction of his conviction to first-degree manslaughter on April 5, 1994 due to a finding that there was no showing of intent to kill. The Appellate Division remanded for resentencing and otherwise affirmed the conviction. People v. Cox, 203 A.D.2d 7 (1st Dept. 1994).
On July 25, 1994, petitioner's application for leave to appeal was denied by the Court of Appeals, as was the People's application for leave to appeal the modification. People v. Cox, 83 N.Y.2d 1003 (1994).
Cox was resentenced to an indeterminate term of from 8 1/3 years to 25 years. On or about August 23, 1995, petitioner appealed his resentencing and the Appellate Division affirmed. On May 13, 1996, the Court of Appeals denied leave to appeal that affirmance. People v. Cox, 223 A.D.2d 1003 (1st Dept. 1996).
On September 10, 1996, Cox filed his first petition for a writ of habeas corpus, claiming that the prosecutor destroyed photographs depicting his own head injuries. The Magistrate Judge recommended that the petition be dismissed without prejudice due to Cox's failure to exhaust state remedies. Petitioner responded that he would return to the state level and on March 24, 1997, petitioner's motion to dismiss the petition was granted without prejudice.
On May 24, 1997, Cox moved pro se in the Supreme Court, Bronx County to vacate the judgment of conviction pursuant to CPL §§ 440.10 and 440.20, alleging that he was denied due process of law by the failure of the police and the prosecutor to provide him with photographs of his head injuries. Because he could have raised this issue in his earlier CPL § 440.10 motion or on direct appeal but failed to do so, the motion was denied on September 24, 1997. Petitioner was denied leave to appeal on March 19, 1998.
On February 26, 2001, Cox again moved in the Supreme Court, Bronx County to set aside his sentence. His motion was denied on July 12, 2001 and Cox's application for permission to appeal was denied on September 18, 2001.
On March 21, 2002, Cox filed the instant petition for a writ of habeas corpus. On September 6, 2002, the Honorable Michael B. Mukasey, Chief Judge, issued an order directing Cox to show cause why his petition should not be dismissed as time-barred. Cox responded that between 1992 and 1998, he suffered from Grave's disease, received radioactive medication and steroid pills, and endured mood and paranoia swings. He stated that he was hospitalized twice, once in 1992 and once at some time prior to transferring correctional facilities on September 6, 1995. Cox also stated that he was unfamiliar with the legal process, that inmates who had been assisting him took some of his legal papers with them when they were transferred to another facility, and that the Special Housing Unit at one correctional facility lost his remaining legal papers.
On December 10, 2002, Chief Judge Mukasey again directed Cox to show cause why his petition should not be dismissed as time-barred because petitioner had failed to allege with sufficient specificity why he should be entitled to equitable tolling. Cox responded similarly, stating in addition that he was hospitalized a third time on an unspecified date prior to 2001 and that he received an EKG on December 13, 2002.
On January 24, 2003, Chief Judge Mukasey reassigned the petition to this Court and on March 10, 2003, this Court directed the respondent and the Attorney General of the State of New York to file an answer or move to dismiss the petition.
Discussion
In addressing Cox's habeas petition, the Court is mindful that Cox is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers . . .'"Hughes v. Rowe, 49 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972));see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted). I. One Year Time Bar Under 2244(d)
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended 28 U.S.C. § 2244(d) to impose a one-year period of limitation on habeas corpus applications by persons in custody pursuant to the judgment of a state court. The one-year period runs 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). The appropriate subsection in this case is subsection (A).
The one-year limitation period began running on August 11, 1996, ninety days after the New York Court of Appeals denied Cox's leave to appeal on May 13, 1996, when the time to file a petition for certiorari expired.See Williams v. Artuz, 237 F.3d 147, 150-151 (2d Cir. 2001).
The pendency of Cox's state post-conviction application between the time of filing on May 24, 1997, and the denial of leave to appeal on March 19, 1998 tolls 300 days. See Hizbullahankhamon v. Walker, 255 F.3d 65, 69 (2d Cir. 2001), cert. denied, 536 U.S. 925 (2002).
The state post-conviction motion filed by petitioner on February 26, 2001, was well after the statute of limitations had run and therefore did not toll any time. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (holding that "proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one year statute of limitations begins to run"), cert. denied, 531 U.S. 840 (2000); Scarola v. Kelly, No. 99 Civ. 4704(HB), 2001 WL 849449 at *3 (S.D.N.Y. July 27, 2001) (the filing of a post-judgment state court motion does not restart the one year limitations period; "tolling extends that time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired").
Cox has contended that he was unable to file his petition earlier because of his ignorance of the legal process. However, it is well-settled that "ignorance of the law" does not entitle a petitioner to equitable tolling. See, e.g., Rhodes v. Senkowski, 82 F. Supp.2d 160, 172 n. 7 (S.D.N.Y. 2000); Fennell v. Artuz, 14 F. Supp.2d 374, 377 (S.D.N.Y. 1997). See also Hunter v. Kuhlman, No. 97 Civ. 4692, 1998 WL 182441, at *1 (S.D.N.Y. April 16, 1998) (no equitable tolling where petitioner claimed "lack of legal expertise and difficulty in getting assistance").
Cox further alleges that his legal papers were lost either by other inmates or by the correctional facility personnel. However, these circumstances have been held insufficient to entitle a petitioner to equitable tolling. See Agramonte v. Walsh, No. OO Civ. 892, 2002 WL 1364086 at *1 (E.D.N.Y. June 20, 2002) (a negligent loss of legal papers does not entitle petitioner to equitable tolling); United States v. Cicero, 214 F.3d 199, 204-205 (D.C. Cir. 2000) (petitioner was not entitled to equitable tolling where he entrusted his legal papers to another inmate, whose later segregation separated petitioner from those papers).
Cox also contends that he suffers from Grave's disease, mood and paranoia swings, has been hospitalized and given medication. However, these circumstances have also been held insufficient to entitle a petitioner to equitable tolling. See Jean-Louis v. Greiner, No. 02 Civ. 6326, 2003 WL 1807144 at *3 (S.D.N.Y. April 4, 2003); Rhodes, 82 F. Supp.2d at 171. In addition, the dates of petitioner's hospitalization did not hinder his ability to timely file because they occurred before or after the pertinent period.
It is disputed as to whether Cox is entitled to tolling for the pendency of his first federal habeas petition, from September 10, 1996, to March 24, 1997. While the Supreme Court has explicitly stated that a federal habeas petitioner is not entitled to the automatic tolling provision of 2244(d)(2) during the pendency of a federal habeas petition,Duncan v. Walker, 533 U.S. 167, 171-72, 121 S.Ct. 2120, 2124 (2001), the Second Circuit has held that equitable tolling may apply. See Rodriguez v. Bennett, 303 F.3d 435, 438 (2d Cir. 2002) ("[T]he fact that § 2244(d)(2) does not cause exclusion of the federal petition's time of pendency does not necessarily exclude the possibility of discretionary tolling on equitable grounds.").
However, even if the pendency of Cox's first habeas petition were to equitably toll the time, and even if the alleged loss of petitioner's legal papers were to equitably toll a portion of time, and, finally, even if petitioner's hospitalization at some point prior to 2001 were to equitably toll a portion of time as well, Cox would nonetheless be time-barred due to the two-year-eleven-month period between March 19, 1998, and February 26, 2001. Equitable tolling does not provide an indeterminate amount of time to the petitioner, rather, the petitioner "must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, [and] that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (quoting Smith v. McGinnis, 208 F.3d at 17), cert. denied, 535 U.S. 1017 (2002). As the Second Circuit held in finding that diligence is required during the time in which extraordinary circumstances have prevented a petitioner from filing
if the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
The nearly three-year gap between March 19, 1998, and February 26, 2001, makes any tolling, equitable or not, irrelevant, as the statute of limitations certainly had run in that time.
There is therefore no ground upon which Cox can proceed. His petition is barred by the statute of limitations since it was filed more than five years after his conviction became final.
Conclusion
For the foregoing reasons, respondent's motion to dismiss Cox's petition for a writ of habeas corpus is granted. Accordingly, Cox's petition is denied. As Cox has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915 (a)(3), any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
It is so ordered.