Opinion
No. 04 Civ. 9493 (SHS) (DFE).
June 3, 2005
MEMORANDUM AND ORDER
My April 18, 2005 Memorandum and Order annexed copies of petitioner's Exhibits 1 and 9, and posed 14 questions at pages 10-11. At pages 14-15, I wrote:
It is clear that Paul's petition, as written, could not survive a motion to dismiss. Therefore, I will not require respondent to answer at this time. I will give Paul until June 20 to file an amended petition. It must answer the 14 questions that I asked above at pages 10-11. It must also provide detailed statements of fact, not the general and conclusory language such as "prison officials lost his legal files." It must give a particularized description of the conduct of the prison officials. It must submit evidence sufficient to support an inference that a prison official had an intent (prior to February 2004) to confiscate Paul's legal papers. Finally, the amended petition must submit evidence sufficient to support a finding that Paul acted with reasonable speed and diligence during the entire period from 7/18/02 to 9/20/04.
If Paul does not submit an amended petition by June 20, 2005, I will recommend that Judge Stein dismiss the petition for the reasons outlined above. If Paul does submit an amended petition, I will review it.
Paul responded with a two-page letter and a one-page reply, both dated May 4, 2005 (six weeks before my deadline). The letter answers several of my 14 questions, although unfortunately it does not answer in numbered paragraphs. But then it says:
. . . I respectfully request to withdraw my Writ of Habeas Corpus petition, without prejudice, because I have no access to obtain any of those legal documents necessary to support and respond to your twelve [sic] questions in this Court.
I am quite sure that Paul does not need any documents to respond to my 14 questions. The reason for the 14 questions is to see whether Paul has any basis for equitable tolling of the one-year statute of limitations. If not, then I will recommend that Judge Stein dismiss the petition with prejudice, which would mean that Paul could never again challenge this conviction in any District Court.
I will now list my 14 questions, and after each one I will list what I believe to be Paul's answer:
1. On what date did Paul actually leave Attica? He says "June 16, 2002." I think he means July 16, but the difference seems unimportant.
2. Did he leave his legal papers behind? He says no.
3. Did he include his legal papers in his 4-bag limit? Paul does not give a clear answer.
4. Why is there no notation next to "Legal papers" on Exhibit 1? He says this was a "clerical error." It seems clear that he neglected to verify the items that were listed on Exhibit 1 before he signed it.
5. What did the prison officials do that caused the "loss" of the documents? He says: "Obviously, the prison officials had left my legal material behind on the prison bus, because of this clerical error." (NOTE: Paul is alleging mere negligence. My April 18 order explained at pages 13-14 that "a negligent loss of legal papers does not entitle a petitioner to equitable tolling." [citation omitted])
6. What actions, and on what dates, did they and Paul take to try to find the documents? He says that he "filed a grievance/claim in regards to the lost legal papers on July 22, 2002." The officials sent him "a copy of my I-64 Form, and there was no notation marked next to `LEGAL PAPERS'." Approximately half of his legal papers were never found, and he was never compensated. (NOTE: Since he was never compensated, and since he presumably possessed the four baggage tags pictured on Exhibit 1, it seems likely that he received the four bags but had attempted to transport some of his legal papers in a fifth bag (he refers to "a draft bag"); if so, he was acting contrary to his acknowledgment on Exhibit 1 that "I have been instructed to include all active legal material in my 4-bag limit.")
7. When and how did he receive copies of any of those documents? It seems that he never lost possession of "the remaining half of my documents." As to the lost documents, he does not say whether he attempted to obtain duplicates.
8. Was he able to mail his 8/6/03 motion on the very same day that he got "half" of those documents? He says that, on June 6, 2003, "I then made a decision to get permission of authorizing another inmate to give me legal assistance, with the remaining half of my legal documents." (NOTE: This decision was a crucial mistake. The one-year habeas statute of limitations began running on 12/30/02, the last date on which his first coram nobis motion was pending. "[E]ven assuming that [New York law] permitted motions to reargue coram nobis motions, such a motion would have to be filed within 30 days of the order denying the coram nobis motion." Hizbullahankhamon v. Walker, 255 F.3d 65, 74 (2d Cir. 2001). During the crucial period from 12/30/02 to 12/30/03, Paul had ample time to send our Court a habeas petition. The absence of approximately half of his legal documents did not prevent him from filing a second coram nobis motion; similarly, that absence did not prevent him from sending our Court a habeas petition on our simple form.
9. On what date did Paul first have access to a blank form for habeas petition to the Southern District of New York (such as the form he eventually filled out in September 2004)? There is no good reason why Paul has not answered this question. I am quite sure he always had access to our blank form.
On the present record, Paul has not shown any reason why the habeas filing deadline should be extended beyond December 30, 2003. Accordingly, it seems to be immaterial that his documents were allegedly confiscated in February 2004. Nevertheless, I will go on to discuss this allegation. Here, Paul relies on Exhibit 9, the "Contraband Receipt" that lists various contraband items and, at the end, "9 Legal folders." My April 18 opinion, at page 11 said:
. . . The words "9 Legal folders" appear to be in a handwriting different from that on the rest of the form; to me, it looks similar to Paul's handwriting.
I then asked Questions 10-14 concerning Exhibit 9:
10. Did Paul write the words "9 Legal folders"? Tellingly, Paul fails to answer this question.
11. On what date? Paul does not answer.
12. Did Officer Yackeren sign after the words "9 Legal folders" were written? Paul does not answer.
13. Did Paul ever receive copies of any of the documents in those 9 legal folders? Paul says no.
14. When and how? Paul says never.
At the start of today's Memorandum and Order, I spelled out what Paul will have to send to avoid my recommendation of dismissal. If he does not send it by June 20, 2005, then I will recommend that Judge Stein dismiss Paul's petition, with prejudice.