Opinion
99 Civ. 11063 (DLC)
April 22, 2002
Michael J. Love #93-A-1841 (BS/220) Sullivan Correctional Facility, Fallsburg, NY, Petitioner, Pro Se.
David Camuzo Assistant District Attorney, Attorney General of the State of New York, New York, NY, Attorney for the Respondent.
OPINION AND ORDER
In 1997, Michael Love ("Love") filed a timely federal habeas petition challenging his state court conviction. That petition was dismissed without prejudice to permit Love to exhaust the claimed ineffectiveness of appellate counsel. When Love refiled his petition in federal court in 1999, it was no longer timely. Love is now granted an opportunity to explain whether circumstances requiring equitable tolling exist.
BACKGROUND
On February 24, 1993, Love was convicted after a jury trial on four counts of robbery in the first degree and sentenced principally to four consecutive terms of twelve and one-half to twenty-five years. On direct appeal, Love argued that he was denied his right to a fair trial because the plea bargain reached between Love's co-defendant, Michael Singleton ("Singleton"), and the State was mischaracterized to the jury: Singleton initially testified that he would receive ten to twenty years in exchange for his testimony, while the agreement as later finalized provided for a sentence of forty-five years. Love also argued that the judge imposed an unduly harsh sentence because Love personally attacked the judge at sentencing. The Appellate Division affirmed his conviction on October 10, 1997. People v. Love, 648 N.Y.S.2d 437 (1st Dep't 1996). The Court of Appeals denied his application for leave to appeal on January 15, 1997.People v. Love, 89 N.Y.2d 943, 943 (1997).
Love's first federal habeas petition ("1997 Petition") was dated August 15, 1997, received by the Court's Pro Se Office on August 21, 1997, and filed on October 22, 1997. In that petition, Love challenged the mischaracterization of Singleton's plea agreement, the harshness of his sentence, and the failure of his appellate counsel to challenge the trial court's imposition of the maximum fine and sentence. The case was assigned to this Court and referred to Magistrate Judge Pitman. In a letter dated February 9, 1998, Love noted that he agreed with the respondent that his ineffective assistance of counsel claim was unexhausted and asked the Court to allow him to withdraw his petition without prejudice so that he could exhaust this claim in state court. On February 19, 1998, the Court granted his request with the following Order:
Having received petitioner's letter dated February 9, 1998 requesting that the above-referenced petition be dismissed without prejudice so that he may pursue state court remedies prior to filing a petition for a writ of habeas corpus in this Court, it is hereby
ORDERED that the above-captioned petition is dismissed without prejudice and shall not be considered in determining whether any future petition for a writ of habeas corpus is a second or successive petition pursuant to 28 U.S.C. § 2244 (a).
Over seven months later, on September 24, 1998, Love brought a petition for a writ of error coram nobis in New York state court. In that petition, Love argued that his appellate counsel was ineffective because he failed to challenge either the admission at trial of certain identification testimony or the judge's imposition of the maximum fine and sentence. The Appellate Division denied his petition on June 15, 1999. Over four months later, on November 1, 1999, Love filed a second petition for a writ of error coram nobis, in which he argued that his trial counsel was ineffective because he did not move to dismiss the indictment; that his indictment was defective because it did not allege a separate claim of possession of a weapon; and that the trial court lacked subject-matter jurisdiction to try him for first degree robbery because Love was not also separately charged with possession of a weapon.
Before filing his second petition for a writ of error coram nobis, Love renewed his federal habeas petition ("1999 Petition"). It was dated August 23, 1999, received by the Pro Se Office on September 7, 1999, and filed on November 4, 1999. Over two months had elapsed since the Appellate Division had denied the first petition for a writ of error coram nobis. In his federal petition, Love raises the same claims he raised in his 1997 Petition. By order of November 4, 1999, then-Chief Judge Griesa concluded that Love's instant petition was filed more than two years after his state court proceedings became final on April 15, 1997, and ordered Love to show cause why the Antiterrorism and Effective Death Penalty Act's ("AEDPA") one-year statute of limitations should not bar his petition as untimely. The instructions that accompanied the November 4 order explained:
Love seeks to amend his petition to include the three claims that formed the basis of his second petition for a writ of error coram nobis. His motion to amend is dated November 7, 2000, stamped as received by Judge Ellis on November 14, 2000, and filed on January 16, 2002. The Court will address Love's motion to amend should his petition be deemed timely.
[AEDPA] bars federal habeas corpus review of your conviction or sentence because it became final on direct review more than one-year ago. Your petition or motion may be allowed to proceed if the facts of your case fit one of the circumstances described by [AEDPA] as set forth below:
(a) If you were prevented from filing the petition or motion by state or governmental action; or
(b) If the Supreme Court recognized and made retroactive the constitutional right asserted in your petition or motion; or
(c) If new facts supporting your petition or motion were discovered and could not have been discovered earlier through the exercise of due diligence; or
(d) If you filed a state post-conviction motion or other form of collateral review. If so, you must identify the post-conviction relief requested, state the date the motion or writ was filed, and the date the Court entered its decision . . . .
You must explain in detail the facts supporting your contention that the petition or motion should not be time-barred by [AEDPA].
Love submitted an affirmation dated November 30, 1999, in which he stated that his petition should not be dismissed because his 1997 Petition was dismissed without prejudice.
DISCUSSION
Under AEDPA, which was effective on April 24, 1996, a prisoner in state custody has one year after the date his conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244 (d)(1). AEDPA's limitations period is tolled during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244 (d)(2). A number of recent cases have addressed the time periods that are tolled under Section 2244(d)(2). In Duncan v. Walker, 533 U.S. 167 (2001), decided on June 18, 2001, the Supreme Court held that AEDPA's limitations period is not tolled during the pendency of a federal habeas petition. Id. at 181-82. In Hizbullahankhamon v. Walker, 255 F.3d 65 (2d Cir. 2001), the Second Circuit explained that because "no application for leave to appeal will lie from the order of the Appellate Division denying an application for a writ of error coram nobis," AEDPA's limitations period begins to run as of the date the Appellate Division denies the application. Id. at 70 (citation omitted) (alteration. in original). InSmaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001), the Second Circuit held that the ninety-day time period during which a petitioner could have, but did not, seek Supreme Court review of the Appellate Division's denial of the application is not tolled under Section 2244(d)(2). Id. at 138.
Love's state court conviction became final on April 15, 1997, ninety days after the Court of Appeals denied leave to appeal. When Love "filed" his 1997 Petition on August 15, 1997, Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 122 S.Ct. 197 (2001) (prison mailbox rule), approximately 122 days of his one-year limitations period had expired. Love's petition was dismissed on February 19, 1998, and his petition for a writ of error coram nobis was filed on September 24, 1998, approximately 217 days later. Love's petition was dismissed by the Appellate Division on June 15, 1999, and he did not seek Supreme Court review of this decision. Assuming that Love's 1999 Petition was "filed" on August 23, 1999, it was filed approximately sixty-nine days after denial of his petition for a writ of error coram nobis. Thus, even were the one-year limitations period tolled during the pendency of his first federal habeas petition, but see Duncan, 533 U.S. at 181-82, his petition was filed approximately 408 days after his state court conviction became final — forty-three days after the expiration of AEDPA's one-year statute of limitations.
Since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," courts may equitably toll the period. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). Equitable tolling of the one-year limitations period for Section 2254 petitions is available "when extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.), cert. denied, 531 U.S. 968 (2000) (citation omitted). In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll."Id. (citation omitted). The causal link between the extraordinary circumstance and the lateness of a petitioner's filing cannot be demonstrated "if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances."Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000); see also Hizbullahankhamon, 255 F.3d at 75.
The November 4, 1999 order did not specifically advise Love regarding the law concerning equitable tolling. Love's affidavit does not provide the Court with sufficient information to reach a decision about whether equitable tolling is appropriate here. Nor does petitioner's affidavit present sufficient information from which the Court can conclude that he acted with reasonable diligence throughout the forty-three days that would have to be tolled before his 1999 Petition could be deemed timely.
In the event that Love is able to show that at least forty-three days should be equitably tolled, it will then be necessary to address the impact of Duncan on this petition. Specifically, if this petition would be timely but for the fact that the one-year statute of limitations was not tolled during the pendency of Love's 1997 Petition, the parties will be permitted to present any legal arguments relevant to the applicability of Duncan to this petition.
CONCLUSION
Accordingly, Love is again directed to show cause by affirmation by June 28, 2002, why the expiration of the AEDPA limitations period should not bar the instant petition. All further proceedings shall be stayed for sixty days from the date of this Order. If the petitioner fails to comply with this Order by June 28, 2002, or to write the Court prior to June 28, 2002, and explain the need for any extension, the instant petition will be dismissed as time-barred.