OPINION AND ORDER

MICHAEL MUKASEY, Chief Judge, DistrictPage 2

Rudy Roa petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000), challenging his 1995 state court conviction for murder, attempted murder, and robbery. Respondent filed a motion to dismiss Roa's petition as untimely, and in a Report and Recommendation ("Report") dated March 25, 2003, Magistrate Judge Frank Maas recommended that the petition be dismissed as time-barred. For the reasons set forth below, respondent's motion to dismiss is denied, and Roa's petition is remanded to Magistrate Judge Maas.

I.

The following facts are either undisputed or taken in the light most favorable to petitioner.

On January 12, 1995, a New York County Supreme Court jury convicted Rudy Roa on two counts of murder in the second degree, one count of attempted murder in the second degree, and two counts of robbery in the first degree. (Report at 2) On or about February 11, 1997, Roa moved pursuant to N.Y. Crim. Proc. Law § 440.10 for an order vacating the judgment of conviction. (Id.) Although the papers for that § 440.10 motion are not before this court, Roa claims it included the following arguments: (1) the trial court improperly imposed consecutive sentences; (2) the prosecution violated his "state and constitutional right to remain silent"; and (3) his defense attorney provided ineffective assistance. (Roa Petition Under 28 U.S.C. § 2254 ("Pet.") at 2-3) Roa's § 440.10 motion was denied on March 14, 1997, and the Appellate Division denied Roa leave to appeal on September 16, 1997 (Report at 2)

Roa also sought to file a direct appeal with the Appellate Division, which appointed James Nolan to act as his appellate counsel in 1996. (Roa Objections ("Obj.") at 2) Roa wrote to Nolan several times between 1996 and 1999, both asking questions and providing Nolan with information about the case, but Nolan generally did not respond to his letters or return telephone calls made by Roa's wife. (Id. at 3; see id. at Exs. A, B, C, D, E, F) On or about May 14, 1999, Roa received a copy of a letter to Nolan from the Appellate Division which explained that Roa's appeal had not been perfected for argument and would be included in the Dismissal Calendar on May 26, 1999, unless Nolan submitted an affidavit that explained the delay in filing and requested an enlargement of time. (Id. at 2; id. at Ex. G) On May 17, 1999, Roa submitted to the Appellate Division a motion requesting the assignment of new counsel. (Id. at 2; id. at Ex. I) Without Roa's knowledge, Nolan requested and received an enlargement of time to perfect the appeal, and without Roa's consent, Nolan filed a direct appeal with the Appellate Division on August 6, 1999. (Id. at 2; Roa Reply to Motion to Dismiss ("Roa Reply") at 2-3) In this appellate brief, Nolan raised two claims: (1) the trial court deprived Roa of due process by failing to give the jury proper instructions for evaluating eyewitness testimony, and (2) Roa's sentence was excessive. (Report at 2-3) Roa received a copy of Nolan's appellate brief on August 12, 1999, and on August 30, 1999, Roa submitted to the Appellate Division a second motion for new counsel or, in the alternative, for permission to file a pro se brief. (Obj. at 2-3, 20-22) On November 16, 1999, the Appellate Division denied Roa's motions for new counsel, but Roa was not told at the time of this decision. (Pet. at 8)

On March 14, 2000, the Appellate Division unanimously affirmed Roa's conviction. People v. Roa, 270 A.D.2d 103, 704 N.Y.S.2d 470 (1st Dep't 2000). Without Roa's knowledge (Pet. at 9), Nolan then asked the Court of Appeals for leave to appeal, which was denied on July 28, 2000. People v. Roa, 95 N.Y.2d 857, 714 N.Y.S.2d 8 (2000). Neither Nolan nor Roa sought a writ of certiorari from the United States Supreme Court. (Report at 3) Nolan never told Roa about the decisions by the Appellate Division and the Court of Appeals, and neither the Appellate Division or the Court of Appeals provided Roa with notice of their decisions. (Pet. at 8-9)

Starting in 2001, Roa began to check West's New York Digest for decisions on his motions for new counsel. (Roa Reply at 3) According to Roa, he checked West's 2001 and 2002 Pocket Parts but did not find a listing for "People v. Roa" in the Table of Cases. (Id.) Believing that his motions for new counsel were still pending, Roa wrote to the Appellate Division on March 4, 2002, to inquire about the status of these motions. (Pet. at 8; Obj. at Ex. D) On March 8, 2002, the Deputy Clerk of the Appellate Division notified Roa that his motions had been denied in 1999. (Pet. at 8; Obj. at Ex. E) Roa then wrote to the Appellate Division again on March 12, 2002, and inquired about the status of his direct appeal. (Pet. at 8) On April 8, 2002, the Deputy Clerk informed Roa that the Appellate Division had denied his appeal two years earlier, and provided Roa with a copy of the decision. (Id.; Obj. at Ex. F) Roa sought leave to appeal the Appellate Division's denial of his direct appeal, but the Court of Appeals returned his papers to him on May 16, 2002, because it had already denied leave to appeal on July 28, 2000. (Pet. at 9)

Roa then filed this petition, dated July 1, 2002, and received by this court's Pro Se Office on July 11, 2002, alleging various constitutional errors at his trial. (Report at 3) Specifically, Roa argues that (1) he was denied access to his attorney after his arrest; (2) an "illegally signed confession" was improperly introduced at his trial; (3) his confession was coerced; (4) his trial attorney refused to allow Roa to testify at trial, although Roa wanted to do so; (5) his trial attorney provided ineffective assistance; (6) the pre-indictment delay in his case was excessive; and (7) his appellate attorney, Nolan, provided ineffective assistance. (Pet. at 5-6) Magistrate Judge Maas has recommended in his Report that the petition be dismissed as time-barred, finding that Roa did not act with reasonable diligence during the period he asks be tolled because he did not follow up on his two motions for new counsel for two and a half years. (Report at 6-7) Roa objects to the Report but asks that his petition be dismissed without prejudice to enable him to exhaust all state law remedies, particularly with respect to his claim of ineffective assistance of appellate counsel. (Obj. at 12) Because Roa objects also to all relevant aspects of the Report, I must conduct de novo review.See 28 U.S.C. § 636(b)(1).

II.

Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Roa had to file a federal habeas corpus petition within one year of the date on which his judgment of conviction became final. 28 U.S.C. § 2244 (d)(1)(A). As Magistrate Judge Maas explained in his Report, Roa did not seek a writ of certiorari from the United States Supreme Court, and so his conviction became final on October 26, 2000, 90 days after the Court of Appeals denied his request for leave to appeal. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003). Pursuant to 28 U.S.C. § 2244(d)(1), Roa's time to file a, habeas corpus petition expired one year after that date. Because Roa's petition is dated July 1, 2002, approximately eight months after the statutory deadline, it is time-barred unless Roa can show that equitable tolling of the statute of limitations is appropriate here.

Equitable tolling is appropriate only in "rare and exceptional circumstances." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). "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."Id. Although attorney error usually is not extraordinary enough to toll the limitations period, "an attorney's behavior may be so outrageous or so incompetent as to render it extraordinary."Baldayaque v. U.S., 338 F.3d 145, 152 (2d Cir. 2003).

The first question is whether Roa acted with reasonable diligence during the period he seeks to have tolled. Unlike Magistrate Judge Maas, I believe that Roa's allegations suggest that he did act with reasonable diligence during the relevant period. In the Report, Magistrate Judge Maas concluded that Roa was not reasonably diligent because he did not inquire about the status of his motions for new counsel for two and a half years. (Report at 6-7) However, Magistrate Judge Maas reached this conclusion without considering Roa's Reply to Respondent's Motion to Dismiss, in which Roa explained that he checked the Pocket Parts of West's New York Digest throughout 2001 and 2002, looking for decisions on his motions for new counsel. If Magistrate Judge Maas had known that Roa made these earlier attempts to ascertain the status of these motions, his analysis of Roa's diligence might have been different.

Furthermore, even if Roa could have been more diligent in pursuing his motions for new counsel, I do not think that failing to inquire into the status of two non-dispositive motions is necessarily equivalent to failing to monitor the status of a pending appeal, as Magistrate Judge Maas suggests. When faced with the latter type of inaction, some courts have indeed concluded that a petitioner is not entitled to equitable tolling because a reasonably diligent petitioner would not wait many months to ask about the status of his state appeal. See Anderson v. O'Gara, 01 Civ. 5712 (WHP GWG), 2002 WL 1633917, at *2-*4 (S.D.N.Y. July 23, 2002) (no equitable tolling where petitioner did not to inquire into status ofpro se coram nobis petition for: more than two years after filing it); Plowden v. Romine, 78 F. Supp.2d 115, 116-20 (E.D.N.Y. 1999) (no equitable tolling where petitioner did not ask Court of Appeals or attorney about status of leave to appeal for 17 months). In those cases, the petitioners knew that their time limits for filing habeas petitions would begin to run once the state courts issued their decisions; in order to act with reasonable diligence, such petitioners must attempt to ascertain the outcome of their appeals in a timely manner. Here, by contrast, it is by no means clear that Roa should have known that the Appellate Division's decision on his requests for new counsel would, without his knowledge, set into motion a chain of events that would end with the Court of Appeals affirming his conviction and the habeas clock starting to run. Because it is therefore not clear that a reasonably diligent petitioner would monitor the status of a non-dispositive motion with the same vigilance as he would the status of his actual appeal, Roa's actions during the relevant period may suffice to show reasonable diligence. Furthermore, if Roa did not know, and could not have been expected to know, that his appeal was even being considered by the Appellate Division and the Court of Appeals, I cannot conclude that he should have investigated the status of his case and discovered that his conviction had become final.

Even if he acted with reasonable diligence, Roa's case-, does not merit equitable tolling unless extraordinary circumstances beyond his control prevented him from filing a timely petition. Smaldone, 273 F.3d at 138. Magistrate Judge Maas concluded that the circumstances Roa alleges were not extraordinary and suggested that there is nothing extraordinary about a petitioner failing to receive notice of the denial of a motion or appeal. (See Report at 6-7) I agree that it might not be extraordinary for Roa not receive notice of the Appellate Division's denial of his motions for new counsel, but I do find it extraordinary that Roa also did not receive notice of any of the other events that ensued — the Appellate Division's consideration and denial of his appeal, his attorney's application to the Court of Appeals for leave to appeal, and the Court of Appeals denial of that application. Although Roa was represented by Nolan throughout this period, Nolan apparently never told Roa about any of these events, even though Roa, who was incarcerated, may not have had any meaningful access to published court rulings. See Vasquez v. Greiner, 68 F. Supp.2d 307, 310-11 (S.D.N.Y. 1999) (suggesting that incarcerated habeas petitioner who had no meaningful access to published court rulings should be entitled to equitable tolling if his attorney did not tell him that his conviction had become final until after the habeas limitations period had expired). If Nolan in fact did not provide Roa with any information about his case and failed even to inform Roa that he was taking the case to the Court of Appeals, then Nolan's behavior may be so outrageous or incompetent that the circumstances should be considered extraordinary.See Baldayaque, 338 F.3d at 152. Therefore, respondent's motion to dismiss is denied.

Although Roa has alleged facts that are sufficient to survive respondent's motion to dismiss, Roa has not yet established ultimate entitlement to equitable tolling because it is still not clear whether the weight of the evidence will support Roa's claims. Specifically, an examination of the facts and circumstances of this case may contradict Roa's allegations or reveal that, if he had acted with reasonable diligence, he would have discovered the decisions of the Appellate Division and the Court of Appeals in time to file a timely petition. See Vasquez, 68 F. Supp.2d at 310-11 (denying motion to dismiss habeas petition as untimely but explaining that equitable tolling "may ultimately prove unwarranted on all the facts and circumstances"). Accordingly, Roa's petition is remanded to Magistrate Judge Maas so that he can develop the facts relevant to Roa's claim that Roa was never notified of the appellate decisions in his case and that he could not otherwise have learned of those dispositions through reasonable diligence. See Valverde v. Stinson, 224 F.3d 129, 135 (2d Cir. 2000) (remanding to district court for further fact development where petitioner's allegations were adequate to counter motion to dismiss but not sufficient to establish an ultimate entitlement to equitable tolling). To develop the record, Magistrate Judge Maas "may utilize any of the habeas rules designed to supplement the record without the necessity of conducting a full-blown evidentiary hearing."Id. (quoting United States v. Aiello, 814 F.2d 109, 114 (2d Cir. 1987)).

III.

At the end of his Objections to Magistrate Judge Maas's Report, Roa asks this court dismiss his habeas petition without prejudice to allow him to exhaust all state remedies, especially with respect to his claim of ineffective assistance of appellate counsel. (Obj. at 12) Respondent opposes this request, arguing that any attempt at exhaustion is fufile because Roa's entire petition would still be time-barred even if all of his claims were exhausted. (Respondent's Reply to Roa's Objections at 4) However, as discussed in Part II,supra, Roa may yet demonstrate that his habeas petition should not be considered time-barred, in which case he should be given the opportunity to return to state court to exhaust his unexhausted claims.

In the case of a "mixed" habeas petition that contains both exhausted and unexhausted claims, a district court can either dismiss the petition in its entirety or dismiss only the unexhausted claims and stay proceedings on the remaining portion of the petition. See Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001). Where, as here, outright dismissal of the petition "could jeopardize the timeliness of a collateral attack," the court should use the latter approach. Id. (internal quotation marks omitted). Accordingly, if Roa's petition is not time-barred, the appropriate course of action is to dismiss Roa's unexhausted claims and stay proceedings on his exhausted claims to give him the opportunity to return to state court.

The difficulty in this case is that papers relating to Roa's § 440.10 motion, filed in 1997, are not part of the current record; without examining these papers, I cannot determine what claims, if any, Roa exhausted in that motion. Accordingly, Magistrate Judge Maas should try to locate Roa's § 440.10 motion and decide which claims in Roa's habeas petition are exhausted and which claims remain unexhausted. If I find that Roa's petition is not time-barred, I will then dismiss Roa's unexhausted claims, stay all other proceedings, and instruct Roa to begin to exhaust his claims within 30 days and to return to this court within 30 days after exhaustion is completed. See id. at 381.

For the reasons stated above, respondent's motion to dismiss is denied, and Roa's petition is remanded to Magistrate Judge Maas for further proceedings as described in Parts II and III of this opinion, and a further report and recommendation.