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denying the State's motion to dismiss the petition as time barred
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No. 02 Civ. 0846 (LAP) (AJP)
July 1, 2002
REPORT AND RECOMMENDATION
Petitioner Eddie Gomez, pro se, seeks a writ of habeas corpus from his February 16, 1994 conviction, upon his guilty plea in Supreme Court, New York County, of first degree attempted murder and first degree reckless endangerment, and sentence to concurrent terms, the longest of which was fifteen years to life imprisonment. (See Dkt. No. 2: Pet. ¶ 1-2.) See also People v. Gomez, 249 A.D.2d 237, 237, 672 N.Y.S.2d 681, 681 (1st Dep't), appeal denied, 92 N.Y.2d 852, 677 N.Y.S.2d 83 (1998). Gomez's petition raises three habeas grounds: (a) ineffective assistance of trial counsel (Pet. at pp. 4-27); (b) his guilty plea was not knowing and voluntary (Pet. at pp. 28-33); and (c) ineffective assistance of appellate counsel (Pet. at pp. 34-36).
The State has moved to dismiss the petition as time-barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Dkt. Nos. 7-8, 10.) For the reasons set forth below, the Court denies the State's motion and directs the State to respond to Gomez's petition on the merits, by August 15, 2002.
The Court denies Gomez's application for appointment of counsel without prejudice at this time; Gomez may renew the motion after the State has responded to the merits of his petition.
PROCEDURAL BACKGROUND
The procedural facts are not in dispute; only the legal effect of those facts.As noted above, on February 16, 1994, Gomez was convicted of first degree attempted murder and reckless endangerment and sentenced to fifteen years to life imprisonment. (See, e.g., Dkt. No. 2: Pet. ¶¶ 1-2.)
On March 27, 1995, prior to filing his direct appeal, Gomez's trial counsel brought a C.P.L. § 440 motion to vacate Gomez's sentence. (Dkt. No. 7: A.D.A. Beder 5/7/02 Letter at p. 2; Dkt. No. 8: A.D.A. Beder 5/16/02 Aff. ¶ 6 Ex. A; Dkt. No. 10: A.D.A. Beder 5/23/02 Aff ¶ 3; Dkt. No. 11: Gomez 5/24/02 Aff ¶ 5.) The trial court denied the motion on May 2, 1995. (Beder 5/16/02 Aff. ¶ 7 Ex. B; see also Pet. ¶ 3; Beder 5/23/02 Aff. ¶ 3; Gomez 5/24/02 Aff. ¶ 6.) On May 8, 1995, Gomez's counsel sought leave to appeal from the denial of the C.P.L. § 440 motion, and on July 13, 1995, the First Department denied leave to appeal. (Beder 5/16/02 Aff. ¶¶ 8-9 Exs. C, E; see also Beder 5/23/02 Aff. ¶ 3; Gomez 5/24/02 Aff ¶ 7.) See People v. Gomez, No. M-2316, 1995 N.Y. App. Div. LEXIS 8041 (1st Dep't July 13, 1995). Because this § 440 motion was fully decided before Gomez's direct appeal, it has no effect on the AEDPA limitations period.
In August 1997, represented by new appointed appellate counsel, Gomez filed his direct appeal to the First Department. (Beder 5/16/02 Aff. ¶ 10 Ex. F; Gomez 5/24/02 Aff. ¶ 8.) On April 30, 1998, the First Department affirmed Gomez's conviction, and on June 23, 1998, the New York Court of Appeals denied leave to appeal. (Beder 5/16/02 Aff. ¶ 11-12 Exs H-I; see also Pet. ¶ 3; Beder 5/23/02 Aff. ¶ 4; Gomez 5/24/02 Aff. ¶ 9.) People v. Gomez, 249 A.D.2d 237, 672 N.Y.S.2d 681 (1st Dep't), appeal denied, 92 N.Y.2d 852, 677 N.Y.S.2d 83 (1998).
On June 16, 1999, Gomez, pro se, filed a second C.P.L. § 440 motion in the trial court. (Beder 5/23/02 Aff. ¶ 5 Ex. A; see also Dkt. No. 9: Gomez 5/13/02 Letter to Court at p. 1; Pet. ¶ 5; Gomez 5/24/02 Aff. ¶¶ 10-11.) On August 4, 1999, Gomez wrote to the trial court, asking it to "accept the attached 440.10 motion in replacement of the original dated June 16, 1999. . . . The attached motion has been amended to correct some errors, and adding minor clarification on point of law and facts." (Beder 5/23/02 Aff. Ex. B; see also Beder 5/23/02 Aff. ¶ 6; Beder 5/16/02 Aff. ¶ 13 Ex. J: 8/4/99 Gomez C.P.L. § 440 Motion Papers; Gomez 5/24/02 Aff. ¶¶ 12-13 Ex. 2.) On October 1, 1999, the trial court (Justice Leslie Crocker Snyder) denied Gomez's C.P.L. § 440 motion. (Beder 5/16/02 Aff. ¶ 14 Ex. L; see also Pet. ¶ 5; Beder 5/23/02 Aff. ¶ 7; Gomez 5/24/02 Aff. ¶ 15 Ex.3.)
On October 19, 1999, Gomez sought leave to appeal to the First Department from Justice Snyder's denial of his C.P.L. § 440 motion. (Beder 5/16/02 Aff. ¶ 15 Ex. M; see also Beder 5/23/02 Aff. ¶ 8; Gomez 5/24/02 Aff. ¶ 16.) On January 18, 2000, the First Department denied leave to appeal. (Beder 5/16/02 Aff. ¶ 17 Ex. P; see also Pet. ¶ 5; Beder 5/23/02 Aff. ¶ 8; Gomez 5/24/02 Aff. ¶ 18.) People v. Gomez, No. M-7671, 2000 N.Y. App. Div. LEXIS 755 (1st Dep't Jan. 18, 2000). On or about January 25, 2000, Gomez moved for reconsideration in the First Department (Beder 5/16/02 Aff. ¶ 18 Ex. Q; Gomez 5/24/02 Aff. ¶ 18) — because he believed the First Department had denied leave to appeal before it received his January 14, 2000 reply papers. (Gomez 5/24/02 Aff. ¶¶ 17-18 Ex. 4.) The First Department denied the application on March 16, 2000. (Beder 5/16/02 Aff. ¶ 18 Ex. 5; see also Pet. ¶ 5; Gomez 5/24/02 Aff. ¶ 18.) People v. Gomez, No. M-771, 2000 N.Y. App. Div. LEXIS 3144 (1st Dep't Mar. 16, 2000).
On or about March 29, 2000, Gomez filed a pro se coram nobis petition in the First Department, alleging ineffective assistance of appellate counsel. (Beder 5/16/02 Aff. ¶ 19 Ex. T; see also Pet. ¶ 6; Gomez 5/24/02 Aff. ¶ 19.) On May 8, 2001, the First Department denied Gomez's coram nobis petition. (Beder 5/16/02 Aff. ¶ 20 Ex. V; see also Pet. ¶ 6; Gomez 5/24/02 Aff. ¶ 23 Ex. 8.) People v. Gomez, 283 A.D.2d 1035, 726 N.Y.S.2d 43 (1st Dep't 2001). Gomez moved for reconsideration on May 28, 2001, which the First Department denied on November 8, 2001. (Gomez 5/24/02 Aff. ¶¶ 24-25 Exs. 9-10; Beder 5/16/02 Aff. ¶ 21 Ex. X; see also Pet. ¶ 6.) People v. Gomez, No. M-3383, 2001 N.Y. App. Div. LEXIS 10802 (1st Dep't Nov. 8, 2001).
Gomez's Federal Habeas Petition
Gomez's present pro se federal habeas corpus petition is dated November 23, 2001 and was received by the Court's Pro Se Office on December 5, 2001. (Dkt. No. 2: Pet. at pp. 1, 36; see also Gomez 5/24/02 Aff. ¶ 26.)
On May 7, 2002, the State moved to dismiss Gomez's habeas petition as time-barred. (See Dkt. Nos. 7-8.)
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 September 21, 1998, ninety days after the New York Court of Appeals denied Gomez's leave to appeal on June 23, 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). Gomez concedes this point. (Dkt. No. 11: Gomez 5/24/02 Aff. ¶ 28.)
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 (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.), report rec. adopted by 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.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, Gomez's conviction became final and the AEDPA limitations period started on September 21, 1998. The AEDPA limitations period ran until tolled by Gomez's C.P.L. § 440 motion, which Gomez filed on June 16, 1999. Thus, from September 21, 1998 until June 16, 1999 268 days had run. The C.P.L. § 440 motion tolled the AEDPA limitations period until October 1, 1999, when the trial court denied the motion, and that toll continued through January 18, 2000 when the First Department denied leave to appeal. Carey v. Saffold, 122 S.Ct. 2134, 2138 (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.").
The Court need not decide whether the June 16, 1999 filing of Gomez's original C.P.L. § 440 motion or the August 4, 1999 submission of Gomez's "replacement" § 440 motion is the appropriate date; his federal habeas petition is timely whichever date is used. Moreover, while Gomez as a layman used the word "replacement," it is clear that the August 4, 1999 submission was a minor modification (i.e.,, amendment) of the earlier submission.
Gomez also is entitled to a toll of the AEDPA limitation period for the time his motion for reconsideration from the denial of leave to appeal was pending before the First Department (i.e., from January 25, 2000 to March 16, 2000). Motions for reargument before the First Department are governed by N.Y. C.P.L. § 470.50(1) and N.Y. Comp. Codes R. Regs., tit. 22, § 600.14(a). Because New York's procedural rules allow motions for reargument, such a motion is "properly filed," regardless of the merits (or lack thereof) of such a motion in this case. See, e.g., Artuz v. Bennett, 531 U.S. 4, 8-9, 121 S.Ct. 361, 364 (2000) ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. . . . [T]he question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.") (emphasis in original).
Under Section 600.14(a), motions for reargument are limited to points that "have been overlooked or misapprehended by the court." 22 NYCRR § 600.14(a); see, e.g., Haskins v. Kirk, 85 Civ. 172, 1986 WL 15259 at *6 n. 10 (S.D.N.Y. Dec. 29, 1986); Livoti v. Mallon, 92 A.D.2d 532, 532, 460 N.Y.S.2d 483, 483 (1st Dep't 1983); People v. Rossi, 70 A.D.2d 575, 575, 417 N.Y.S.2d 868, 868 (1st Dep't 1979).
Gomez's reargument motion was based on the argument that the First Department's January 18, 2000 denial of leave to appeal was rendered before it received his January 14, 2000 reply papers. (See Gomez 5/24/02 Aff. Ex. Q.) This would appear to place his reargument motion well within the requirement that it address points that have been "overlooked" by the court. But even if not meritorious, the motion is procedurally proper and hence properly filed.
Thus, Gomez also is entitled to a toll for the period from January 25, 2000 to March 16, 2000 during which he sought reargument of the First Department's denial of leave to appeal from the trial court's denial of his § 440 motion.
Thus, the AEDPA period started again on March 16, 2000 and was tolled again on March 29, 2000 (after 13 days ran), when Gomez filed his state coram nobis petition. Gomez is entitled to a toll from the time he filed his coram nobis petition on March 29, 2000 until the First Department denied it on May 8, 2001. For the reasons discussed above, Gomez is entitled to a further stay while his motion for reconsideration was pending, until November 8, 2001, when the First Department denied his motion for reconsideration.
From November 8, 2001 until Gomez filed his federal habeas petition on November 23, 2001, an additional 15 days ran. Thus, a total of 296 days ran (268 plus 13 plus 15 days), which is less than the one year (365 days) allowed under the AEDPA.
CONCLUSION
For the reasons set forth above, Gomez's petition is not time barred under the AEDPA and the State's motion to dismiss should be denied.
The State is ordered to respond to Gomez's petition on the merits by August 15, 2002 (and that deadline applies even if the State files objections to this Report and Recommendation).
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, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).