Opinion
02-CV-6710 (JBW) 03-MISC-0066 (JBW)
October 14, 2003
MEMORANDUM, IUDGMENT ORDER
For the reasons described below, the petition for a writ of habeas corpus is dismissed as time-barred. No hearing in this matter is necessary,
I. Law
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1), This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United Stales Supreme Court has expired. See McKinney v, Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13,
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v, Artuz, 150 F.3d 97, 103 (2d Cir. 1998),
"[T]he district court has The authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v, Artuz 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, 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," 28 U.S.C. § 2244(d)(2),
The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee . . . The 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; footnote omitted)).
In addition, the term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the lime it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 109 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the terra "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to tile an appeal does not toll AEDPA's limitations period unless an extension is actually granted See Bertha v, Girdich, 293 R3d 577, 579 (2d Cir. 2002),
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 R3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v, Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
The AEDPA statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senkowski, 273 R3d 133, 138 (2d Cir. 2001). Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No, 02-2611, 2003 U.S. App, LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
This opinion complies with Miranda v, Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit"),
A certificate of appeal ability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 2S U.S.C, § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003),
II. Application
Petitioner was convicted of second and third degree robbery. He was sentenced on February 24, 1998, as a persistent violent felony offender to 28 years to life in prison. His conviction was affirmed by the Appellate Division on May 29, 2001, Leave to appeal to the New York Court of Appeals was denied on August 20, 2001.
Because petitioner did not seek a writ of certiorari from the Supreme Court, his conviction became final 90 days later, on November 18, 2001,
Absent statutory or equitable tolling, petitioner's habeas application was due one year later, on November 18, 2002,
Petitioner filed an unsigned and undated habeas application that was received in the district court of the Eastern District of New York on December 20, 2002. Giving petitioner the benefit of the doubt, this court will assume that he presented the application to prison authorities for mailing on December 15, 2000, (A back-dated and signed copy of the file-stamped petition was sent to this court by petitioner, indicating that he "executed" the instant application on that date.) Because the application was due on November 18, 2002, it is out of time by nearly a month.
No collateral proceedings were initiated that might toll the limitations period by statute.
Respondent moved to dismiss petitioner's application as time-barred. In answer, petitioner claims that he in fact gave a signed and dated petition to prison authorities for mailing on August 27, 2001, just one week after leave to appeal to the New York Court of Appeals was denied. He suggests that prison authorities must have misplaced his signed petition. In support of this claim, he appends to his papers what purports to be a copy of the August 27, 2001 application that he discovered in his files in November 2002. Because, petitioner suggests, he handed his petition to prison authorities for mailing just one week after his conviction became final, it should be deemed timely,
Petitioner's story is not credible. The habeas application supposedly completed on August 27, 2001 is not notarized. He has presented no evidence other than his own assertion that he presented an application to prison authorities in August 2001. He does not explain why, even though he never received acknowledgment of receipt of his application from the district court for over 15 months, he made no inquiry of the court. Petitioner does not explain why he submitted a new petition rather than inquire of the court concerning his August 2001 petition. If this court were to deem an application timely under these circumstances, the AEDPA limitations period could be circumvented with ease by any state prisoner. It would in practice become a nullity,
Petitioner likewise is not entitled to equitable tolling based on his assertions. Ho did not pursue his claims with reasonable diligence,
Petitioner was not prevented from filing his petition by any State action in violation of the Constitution, he asserts no constitutional right newly recognized by the Supreme Court, and none of his claims rely on facts that could not have been discovered in a timely manner through the exercise of due diligence. See 28 U.S.C. § 2254(d)(1)(B)-(D).
Petitioner does not make a colorable claim that he is actually innocent of the crime and that the time bar should therefore be waived,
Petitioner's claims appear meritless on their face. His contentions that a photographic spread was suggestive were rejected by the trial court, whose factual findings are due great deference by this court. His sentence was within the statutory range and is not cruel and unusual. The trial court's exercise of its discretion in denying petitioner's application to be excluded from the courtroom to avoid being identified by witnesses seems proper. Habeas corpus relief on this grounds would appear to be unwarranted,
III. Conclusion
The petition for a writ of habeas corpus is dismissed as time-barred.
No certificate of appeal ability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right, Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U, S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct 1029 (2003).
SO ORDERED.