Opinion
No. 01-CV-8248 (FB) (LB)
August 15, 2002
Kings County District Attorney, Brooklyn, NY, Att: Anne C. Feigus, Esq., for Respondent.
REPORT AND RECOMMENDATION
The Honorable Frederic Block, United States District Judge, referred this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to the undersigned for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). Petitioner's request for appointment of counsel is denied. Moreover, for the following reasons; it is recommended that the petition be dismissed as time-barred.
BACKGROUND
Petitioner Tiquan Davis was convicted on April 13, 1995, of rape in the first degree (two counts), sodomy in the first degree, sexual abuse in the first degree, burglary in the first degree and robbery in the first degree in New York State Supreme Court, Kings County. The Appellate Division, Second Department, affirmed petitioner's conviction on April 21, 1997, People v. Davis, 238 A.D.2d 517, 657 N.Y.S.2d 924 (2d Dep't 1997), and the New York Court of Appeals denied petitioner leave to appeal on August 22, 1997. People v. Davis, 90 N.Y.2d 903, 663 N.Y.S.2d 515 (1997). On July 15, 1998, petitioner moved to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1994). On October 7, 1998, New York State Supreme Court denied the motion. On January 26, 1999, the Appellate Division denied petitioner permission to appeal from the denial and, on March 26, 1999, denied petitioner's request for reconsideration. On December 1, 2001, petitioner filed the instant habeas corpus proceeding. By orders dated December 21, 2001, and January 17, 2002, the Court directed the parties to address whether the petition is time-barred.
This was petitioner's second § 440.10 motion. Petitioner's first motion was filed and decided during the pendency of his direct appeal and has no bearing on the timeliness of the instant habeas corpus petition.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, provides, in relevant part, that a prisoner must file a federal habeas corpus petition challenging a state court judgment of conviction within one year of the date the judgment becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment is considered final upon "the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), cert. denied, 122 S.Ct. 279 (2001). The limitations period is tolled during the pendency of a properly filed request for state post-conviction relief or collateral review. 28 U.S.C. § 2244(d)(2); Artuz v. Bennett, 531 U.S. 4 (2000). The statute of limitations may also be tolled where "extraordinary circumstances prevented [a petitioner] from filing his petition on time." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam), cert. denied, 531 U.S. 840 (2000). In order to be eligible for equitable tolling, however, petitioner must establish that he acted with "reasonable diligence" throughout the period he seeks to toll. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
The one-year limitations period may also run from the date any impediment to filing the petition was removed, the date on which the constitutional right was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review, or the date on which the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(1)(B),(C),(D). None of these alternate dates is applicable here.
Here, petitioner's conviction became final on November 20, 1997, when his time to file a petition for writ of certiorari with the United States Supreme Court expired. See Rule 13(1) of the Rules of the Supreme Court of the United States (petition for writ of certiorari "is timely when it is filed with the Clerk within 90 days after entry of the ordering denying discretionary review"). Petitioner, however, did not file the instant habeas petition within the one-year limitations period; instead, on July 15, 1998, after 236 days of the one-year period had elapsed, petitioner collaterally attacked his conviction by filing a § 440.10 motion in state court. This motion tolled the limitations period until March 26, 1999, when the Appellate Division denied petitioner's motion to reargue its previous order denying him permission to appeal the lower court's § 440.10 decision. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 122 S.Ct. 2134, 2138 (2002) (an application for state collateral review remains "pending" from the time it is filed "until it has achieved final resolution through the State's post-conviction procedures"). At this point, petitioner had 129 days left, or until August 3, 1999, to file a timely habeas petition. Petitioner did not file the instant habeas petition until December 1, 2001, over twenty-eight months after expiration of the one-year limitations period.
Petitioner argues that the Court should equitably toll the statute of limitations. According to petitioner,
[My] motion [for reargument] was denied on March 26, 1999. However, this denial was never mailed to me. I wrote numerous letters pertaining to this matter but never received a reply from the
[A]ppellate Division. It was not until Nov[ember] 2001, when I wrote a letter to the [A]ppellate [D]ivision that I received a reply.
(Petitioner's Affirmation at 2). In support of his argument, petitioner attaches a letter from the Appellate Division, dated December 4, 2001, which confirms that the decision on petitioner's reargument motion "was mailed to [him] on November 26, 2001." (Petitioner's Affirmation at 3).
Assuming that the Appellate Division did not notify petitioner of its March 21, 1999 decision until November 26, 2001, and that this constitutes an "extraordinary event" which prevented petitioner from timely filing his habeas petition, petitioner is not entitled to equitable tolling because he has failed to show that he exercised reasonable diligence in "stay[ing] informed about his case." Plowden v. Romine, 78 F. Supp.2d 115, 119 (E.D.N.Y. 1999); see Ferguson v. Mantello, No. 00 Civ. 2098, 2000 WL 1721140, at *2 (S.D.N.Y. Nov. 16, 2000) (equitable tolling denied where petitioner failed to show that "he exercise[d] reasonable diligence in learning about his case"); Vasquez v. Greiner, 68 F. Supp.2d 307, 310 (S.D.N.Y. 1999) ("To be sure, equitable tolling may ultimately prove unwarranted on all the facts and circumstances — for example, if the evidence indicates that petitioner, in the exercise of reasonable diligence, should have known of the Court of Appeals' decision at an earlier date."). Although petitioner claims that he "wrote numerous letters" to the Appellate Division "pertaining to this matter," (Petitioner's Affirmation at 2), he does not provide the Court with copies of these letters nor does he state when they were sent. To the contrary, the documents submitted by petitioner establish, at best, that he sent the Appellate Division a letter of inquiry in the fall of 2001, approximately two years after the statute of limitations had expired. Petitioner is therefore not entitled to equitable tolling of the statute of limitations.
CONCLUSION
Accordingly, it is recommended that petitioner's application for a writ of habeas corpus be dismissed as time-barred. Because petitioner has not made a substantial showing of the denial of any constitutional right, it is further recommended that a certificate of appealability not be issued. 28 U.S.C. § 2253. See Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability), abrogated on other grounds, United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). It is also recommended that the Court certify pursuant to 28 U.S.C. § 1915 (a) that any appeal from a judgment denying the petition would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made to the District Judge within the ten day period. Failure to file a timely objection to this Report generally waives any further judicial review. DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000). See Thomas v. Arn, 474 U.S. 140 (1985).
SO ORDERED.