Opinion
01 CIV. 8233 (DLC)
February 25, 2002
Fernando Ortiz, Green Haven Correctional Facility, Stormville, NY., for Petitioner, Pro Se.
MEMORANDUM OPINION AND ORDER
On or about March 13, 2001, Petitioner Fernando Ortiz ("Ortiz") tiled the instant petition for a writ of habeas corpus, approximately three years and eleven months after his claims became time barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). On September 4, 2001, Chief Judge Mukasey ordered the petitioner to show cause why his petition should not be dismissed as time barred. Ortiz filed an affirmation dated October 16, 2001 describing the reasons for his delay in filing his petition, and on January 17, 2002, his case was reassigned to this Court. For the reasons that follow, Ortiz has not shown that equitable tolling is warranted and his petition is dismissed as untimely.
BACKGROUND
On October 19, 1982, Ortiz was convicted after a jury trial of two counts each of murder, attempted murder and robbery in the first degree, and one count of robbery in the second degree. The Appellate Division affirmed his conviction on April 4, 1985, and his application for leave to appeal to the Court of Appeals was denied on May 17, 1985.
Ortiz filed his first federal habeas petition pursuant to 28 U.S.C. § 2254 on September 9, 1986. In that petition, Ortiz challenged his conviction on the grounds that had been previously raised on direct appeal — failure to suppress the search warrant, introduction of prejudicial evidence, bolstered identification, and error in the state's summation. Ortiz's petition was dismissed without prejudice on April 29, 1988, so that Ortiz could exhaust a claim of ineffective assistance of appellate counsel in state court.
Although the district court dismissed the petition on April 16, 1988, judgment was entered on April 26, 1988.
Approximately nine years later, and with the help of a legal assistant, Ortiz brought a C.P.L. § 440.10 motion on his claim of ineffective assistance of counsel on June 12, 1997. In addition to the grounds presented on direct appeal and in his first federal petition, Ortiz argued that he was denied effective appellate representation because his appellate counsel failed to argue that the trial court had impermissibly dismissed a juror over defense counsel's objections after the juror informed the court that he was ill and would not be able to return until the following day. Ortiz's Section 440.10 motion was denied on December 10, 1997. The court dismissed the claims that had been raised on direct appeal on the ground that these claims had been found lacking in merit on direct appeal. The court further declined to address Ortiz's claim that the juror was improperly dismissed because Ortiz had not raised this issue on direct appeal.
Ortiz, with the help of the same legal assistant, petitioned the Appellate Division for a writ of error coram nobis on his ineffective assistance claim on June 25, 1998. The Appellate Division denied his petition on February 18, 1999.
Ortiz's petition indicates that he appealed this decision, although the mention of an appeal may refer to the petition to the Appellate Division after the trial court denied the Section 440.10 motion.
Approximately two years after the Appellate Division denied the coram nobis petition, Ortiz filed the instant petition. It bears the date March 13, 2001. Judge Mukasey issued an order on September 4, 2001, informing Ortiz that his petition appeared to be time barred. In that order, Judge Mukasey explained that Ortiz
As noted in Judge Mukasey's order, while the Court cannot determine when the petition was handed to prison officials, Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (per curiam) (prison mailbox rule), Ortiz's petition was dated March 13, 2001, and postmarked March 16, 2001.
had from April 24, 1996 until April 24, 1997 to file the instant petition. The post-conviction motions he filed in state court — the motion under § 440.10 and the petition for a writ of error coram nobis — were submitted after his one-year statute of limitations period expired, and therefore cannot be used to toll his statute of limitations.
(Citations omitted; emphasis added.) Judge Mukasey ordered the petitioner to show cause within sixty days why the instant petition was not barred by AEDPA's statute of limitations. Judge Mukasey explained that the
petitioner should include any facts which would show that (i) extraordinary circumstances prevented him from filing his petition on time, and that (ii) he acted with reasonable diligence throughout the period he seeks to toll.
(Citations omitted; emphasis added.)
Ortiz submitted an affirmation dated October 16, 2001 explaining that he was not able to file his petition on time because his legal materials were stolen at some point between June 25, 1998 and February 18, 1999. Second, Ortiz explained that he does not speak English and requires the help of a legal assistant in preparing and filing legal materials. Between June 25, 1998 and February 18, 1999, the legal assistant with whom Ortiz had been working was transferred to another facility.
DISCUSSION
Under AEDPA, 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). A prisoner whose conviction became final prior to AEDPA'S effective date of April 24, 1996, has a one-year grace period after that date to file a petition. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) Ortiz's conviction became final on August 15, 1985, ninety days after denial of his application for leave to appeal to the Court of Appeals on May 17, 1985. Ortiz therefore had until April 24, 1997 to file a federal habeas petition. His instant petition was filed on March 13, 2001, approximately three years and eleven months after his limitations period expired.
Although "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation," 28 U.S.C. § 2244 (d) (2), the limitations period that applied to Ortiz's claims expired on April 24, 1997, approximately forty-nine days before he filed an application for post-conviction review in state court on June 12, 1997. Ortiz's state court proceedings cannot be used to toll the one-year grace period, and the grace period was not reset after he sought state post-conviction collateral review. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000)
Since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," however, courts may equitably toll the period.Id. at 17. 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. 2000) (quoting Smith, 208 F.3d at 17). The factors that can give rise to equitable tolling are the same factors that establish "cause" for failure to raise a claim on direct appeal. Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000) (citing factors such as official interference or the unavailability of a factual or legal basis for a claim). In order to show that extraordinary circumstances prevented him from filing his petition on time, a petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll."Warren, 219 F.3d at 113 (citation omitted).
Ortiz asks that time be tolled because he was deprived of his case file and other legal materials. While deprivation of access to legal materials may constitute grounds for equitable tolling, see Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001); Valverde, 224 F.3d at 133, Ortiz has alleged that his legal materials disappeared after June 25, 1998, over a year after the limitations period that applied to his claims had expired. Ortiz discovered that his legal materials had disappeared after the legal assistant who had helped him with his June 25, 1998 petition for a writ of error coram nobis was transferred to another facility. Because the circumstance on which Ortiz relies in support of his request for equitable tolling did not occur until after the statute of limitations had passed, that circumstance could not have prevented him from filing on time.
Joseph Scott, in an affidavit attached to Ortiz's petition, states that Ortiz requested his legal materials in December of 1998 or January of 1999. He also notes that Ortiz sought to obtain copies of his legal documents from his trial and appellate counsel or from the court system.
Ortiz also maintains that equitable tolling is warranted in his case because he cannot speak English and required the help of a legal assistant to pursue his collateral attacks. Although Ortiz has noted that a legal assistant helped him file his Section 440.10 motion on June 12, 1997, it is unclear whether he had access to legal assistance during the relevant time period — April 24, 1996 to April 24, 1997. Without more, however, a petitioner's "pro se status . . . does not merit equitable tolling." Smith, 208 F.3d at 18. Thus, even if Ortiz did not have legal assistance between April 24, 1996 and April 24, 1997, that fact would be insufficient to toll the time during which he lacked such assistance.
Ortiz also claims that equitable tolling is warranted because he does not speak English. Many pro se inmate petitioners face language barriers, however, and courts have consistently declined to find that such barriers constitute an "extraordinary circumstance" sufficient to justify equitable tolling. See, e.g., Quezada v. Artuz, No. 98 Civ. 2593 (NG), 2001 WL 1262402, at *2 (E.D.N.Y. Oct. 17, 2001); Tan v. Bennett, No. 00 Civ. 6413 (GEL), 2001 WL 823869, at *2 (S.D.N.Y. July 20, 2001);Roman v. Artuz, No. 00 Civ. 1400 (DLC), 2000 WL 1201392, at *2 (S.D.N.Y. Aug. 22, 2000); Martinez v. Kuhlman, No. 99 Civ. 1094 (MBM), 2000 WL 622626, at *3 (S.D.N.Y. May 15, 2000); Martinez v. United States, 00 Civ. 1214 (DLC), 2000 WL 863121, at *2 (S.D.N.Y. June 28, 2000).
CONCLUSION
For the foregoing reasons, Ortiz's petition is dismissed. The Clerk of Court shall close the case. I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998);Rodriguez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Should the petitioner seek leave to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
SO ORDERED.