Opinion
No. 00 Civ. 401 (MBM).
January 27, 2005
RAFAEL RODRIGUEZ (Petitioner pro se) Auburn, NY.
ROBERT M. MORGENTHAU, ESQ. District Attorney, New York County, MORRIE I. KLEINBART, ESQ. Assistant District Attorney New York, NY, Attorneys for Respondent
OPINION AND ORDER
Petitioner Rafael Rodriguez, imprisoned by the State of New York on a murder conviction, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 20, 2001, the petition was dismissed as untimely under the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d). Rodriguez appealed from that decision to the United States Court of Appeals for the Second Circuit. On September 11, 2002, the Second Circuit vacated the judgment of dismissal and remanded the case for consideration of "whether, and to what extent, Rodriguez should benefit from equitable tolling for any of his claims." Rodriguez v.Bennett, 303 F.3d 435, 439 (2d Cir. 2002). In a Report and Recommendation ("Report") dated September 14, 2004, Magistrate Judge Kevin Nathaniel Fox recommended that Rodriguez get the benefit of equitable tolling for all his claims and that the petition be found timely. For the reasons set forth below, Rodriguez's petition is dismissed in part and is referred to Magistrate Judge Fox.
I.
Familiarity with the Report and the Second Circuit's opinion is assumed for current purposes, and only so much of the factual background as is necessary to resolve respondent's objections to the Report is set forth below.
In October 1992, Rodriguez was convicted of second degree murder and second degree attempted murder following a jury trial in Supreme Court, New York County. (Report at 1) On direct appeal, he argued that at trial the prosecutor made prejudicial statements in his summation. Rodriguez, 303 F.3d at 436. On April 11, 1996, the Appellate Division, First Department affirmed his conviction. (Report at 1; People v. Rodriguez, 226 A.D.2d 177, 641 N.Y.S.2d 532 (1st Dep't 1996)) On May 28, 1996, leave to appeal to the New York Court of Appeals was denied. (Report at 2;People v. Rodriguez, 88 N.Y.2d 884, 645 N.Y.S.2d 459 (1996))
On April 14, 1997, Rodriguez petitioned for habeas corpus relief in this court, alleging that (i) he was denied a fair trial because of the prosecutor's prejudicial summation, (ii) he was denied effective assistance of counsel at trial because his attorney failed to object to the prosecutor's summation, and (iii) he was denied a fair trial because one of the prosecution's witnesses allegedly committed perjury. (Report at 2)
Respondent moved to dismiss Rodriguez's petition on the ground that state remedies had not been exhausted as to the claims of ineffective trial counsel and perjury. (Id.) Rodriguez sought to withdraw the petition without prejudice so that he might exhaust his state remedies for those claims. (Id.) He requested also that the court not dismiss the petition, if doing so would result in a time bar to filing a new petition. (Id.) Rodriguez then retracted his request for withdrawal of the petition because he was concerned that he would be unable to commence state exhaustion proceedings within the time remaining in the limitations period, and asked the court to rule on the merits of the petition. (Id.)
On May 27, 1999, Rodriguez asked again to withdraw his petition to exhaust state remedies. On June 21, 1999, his request to withdraw his petition without prejudice to refiling was granted. (Id.)
On April 27, 1999, while his first habeas petition was pending in this court, Rodriguez applied for a writ of error coram nobis to the Appellate Division, contending that his appellate counsel had been ineffective for failing to raise a claim on direct appeal that certain identification testimony should have been suppressed as the fruit of an illegal search and arrest. (Id. at 2-3) On September 16, 1999, the Appellate Division denied the application. (Id. at 3)
On November 22, 1999, Rodriguez filed a second habeas petition, repeating his claim that he was denied a fair trial because of the prosecutor's prejudicial summation, and adding claims that (i) the trial court erred in admitting identification testimony obtained as a result of an unlawful search and arrest, and (ii) he was denied effective assistance of appellate counsel for failing to raise (i). (Pet. for Writ of Habeas Corpus at 4))
Respondent moved to dismiss the second petition as time-barred pursuant to 28 U.S.C. § 2244(d). (Report at 3) Initially, this court found the second petition timely based on the following reasoning: Rodriguez's conviction became final on August 26, 1996, when his time to seek certiorari from the United States Supreme Court expired. See Pratt v. Greiner, 306 F.3d 1190, 1194-95 (2d Cir. 2002) (holding that a conviction becomes final for purposes of the AEDPA upon the conclusion of direct review or the expiration of the time in which a petitioner may seek a writ of certiorari from the Supreme Court). The AEDPA statute of limitations, which allows one year from the date the conviction becomes final for the filing of a habeas petition, see 28 U.S.C. § 2244(d)(1)(A), commenced running on August 26, 1996. (Report at 3) According to the Second Circuit's decision inWalker v. Artuz, 208 F.3d 357 (2d Cir. 2000) — that the AEDPA's tolling provision, 28 U.S.C. § 2244(d)(2), required tolling during the pendency of a prior federal collateral attack — the limitations period was tolled during the pendency of Rodriguez's first habeas petition, filed on April 14, 1997 and dismissed on June 21, 1999. (Report at 4) Tolling continued while Rodriguez's coram nobis application was pending in state court. (Id.) The limitations period resumed running on September 16, 1999, when the coram nobis application was denied. (Id.) Hence, under Artuz, as of the filing of Rodriguez's second habeas petition on November 22, 1999, 68 days of the one-year limitations period remained. (Report at 4; Rodriguez, 303 F.3d at 437)
However, on June 18, 2001 — the same day that this court issued its decision — the United States Supreme Court reversed Artuz in Duncan v. Walker, 533 U.S. 167 (2001), holding that the tolling mandated by 28 U.S.C. § 2244(d)(2) applies only to state and not to federal collateral attacks. Therefore, under Duncan, the limitations period had not been tolled while Rodriguez's first habeas petition was pending and instead had expired on August 26, 1997, more than two years before he filed his second petition. (Report at 4) Accordingly, this court dismissed the petition. Rodriguez v. Bennett, No. 00-401, 2001 WL 940569, at *2 (S.D.N.Y. Aug. 20, 2001).
On appeal, the Second Circuit vacated the judgment of dismissal and ordered this court to consider whether the limitations period should be equitably tolled for any of Rodriguez's claims during the pendency of the first petition.
II.
A district court reviewing a magistrate judge's report follows the standard established in 28 U.S.C. § 636(b)(1) (2000) and Fed.R.Civ.P. 72(b). Because respondent objects in effect to the entire Report, the issue of equitable tolling will be reviewed de novo. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (district judge must make a de novo determination of those parts of the report to which timely written objection has been made by any party, but the uncontested portions of the magistrate judge's report may be adopted unless they show clear error);United States v. Raddatz, 447 U.S. 667, 673-76 (1980).
III.
In "rare and exceptional" circumstances, equitable tolling permits the extension of a statute of limitations beyond the time of expiration to avoid inequity. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); see also Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000). To benefit from the doctrine, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time" and that he acted with "reasonable diligence" during the period he seeks to toll.McGinnis, 208 F.3d at 17. Equitable tolling "requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made 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).
A. Prosecutorial Misconduct
At the time that Rodriguez's first habeas petition — which included his claim of prosecutorial misconduct — was dismissed without prejudice to refiling, it was an open question in the Second Circuit whether the AEDPA limitations period should be statutorily tolled during the pendency of a previous federal collateral attack. In light of the Supreme Court's holding inDuncan, the Second Circuit in this case directed courts to consider whether the limitations period should be equitably tolled during the pendency of a previously filed habeas petition. The Court recognized that it often takes a substantial amount of time for a federal court to dismiss on procedural grounds a mixed petition — i.e. a petition containing both exhausted and unexhausted claims. Rodriguez, 303 F.3d at 439 n. 1. As a result, it would often happen that "the `without prejudice' provision was an illusion; petitioner could never succeed in timely refiling the petition because he would already be time-barred." Id. at 439.
In Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001), the Second Circuit proposed an alternative to dismissing petitions without prejudice to address the problem contemplated by the Court in this case. The Court announced that where a mixed petition is timely filed, a district court may, in its discretion, stay that petition rather than dismiss it without prejudice. Doing so would allow state courts to consider all issues in the first instance and not jeopardize the timeliness of petitioner's habeas petition by requiring him to file a potentially untimely subsequent petition. Id. at 380-81.
Where the petition is stayed pursuant to Zarvela, equitable tolling is not an issue. Equitable tolling is appropriate in cases in which the decision to dismiss the petition without prejudice was made prior to the Second Circuit decision inZarvela. In this case, neither Zarvela nor Duncan had been decided at the time Rodriguez raised his claim of prosecutorial misconduct in his first petition. Had those decisions been available at the time, the first petition would have been stayed rather than dismissed without prejudice in order to avoid the risk of rendering untimely any future habeas petition containing the claim of prosecutorial misconduct. Therefore, "extraordinary circumstances" exist as to this claim for the period during which the original petition was pending in this court. See, e.g., Felton v. Mazzuca, No. 98-4567, 2004 WL 2072538, at *5 (S.D.N.Y. Sept. 15, 2004); Owens v. Comm'r of Corrs., No. 01-1480, 2003 WL 22208496, at *4 (D. Conn. Sept. 4, 2003) (finding extraordinary circumstances from the fact that "[a]t the time the court dismissed the petitioner's first federal petition without prejudice for failure to exhaust remedies, neither the court nor the petitioner could have foreseen that four years later, the Supreme Court would issue its decision inDuncan . . . rendering the present petition untimely");Jimenez v. Walker, 166 F. Supp.2d 765, 772 (E.D.N.Y. 2001) ("the fact that Duncan transformed the dismissal of the [petitioner's first federal petition] without prejudice into a dismissal with prejudice by rendering the [present] petition time-barred presents extraordinary circumstances").
Rodriguez acted with reasonable diligence in pursuing his claim of prosecutorial misconduct. He filed his first petition approximately seven months after his conviction became final, which was well within the AEDPA limitations period. His diligence continued throughout the pendency of the first petition. He sought to withdraw the petition as soon as respondent moved to dismiss for non-exhaustion. He retracted his request for a withdrawal only when he became concerned that complete exhaustion would be difficult within the time remaining in the one-year limitations period. While the first petition was still pending, Rodriguez was proactive in seeking again to withdraw his petition so that he could exhaust his state remedies. Only two months after his coram nobis application was denied, Rodriguez promptly re-raised his claim of prosecutorial misconduct in his second habeas petition. Because he was "reasonably diligent" during the pendency of his first habeas petition as to the claim of prosecutorial misconduct, Rodriguez is entitled to equitable tolling of that period, specifically from April 14, 1997 through June 21, 1999.
Passage of the limitations period is re-computed as follows: The AEDPA clock ran for 232 days from August 26, 1996 — the date Rodriguez's conviction became final — to April 14, 1997, when Rodriguez filed his first habeas petition. Allowing for equitable tolling during the period when this petition was pending and automatic tolling under 28 U.S.C. § 2244(d)(2) during the pendency of the coram nobis application, the limitations period was tolled from April 14, 1997 through September 16, 1999. The clock ran again from September 16, 1999 — the date the coram nobis application was denied — to November 22, 1999, when Rodriguez filed his second habeas petition. By that time, 68 days remained in the limitations period. Hence, the second petition was timely as to the claim of prosecutorial misconduct.
"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 toward any period of limitation under this subsection." 28 U.S.C. § 2244(d) (2).
B. Claims Raised Only in the Second Petition
Rodriguez has failed to demonstrate "extraordinary circumstances" as to his claims of ineffective assistance of appellate counsel and error in the receipt of identification testimony which were raised for the first time in his second habeas petition. Rodriguez never mentioned these claims or their substance in his requests to withdraw the first petition. His initial request for permission to withdraw his first petition came in direct response to respondent's motion to dismiss, which argued that Rodriguez's ineffective assistance of trial counsel and perjured testimony claims were barred for failure to exhaust. (Pet'r's Letter Requesting Permission to Withdraw Pet. Without Prejudice, dated Aug. 19, 1997; Resp't's Mem. of Law in Supp. of Pre-Answer Mot. to Dismiss Pet. at 4) Rodriguez's final request to withdraw his first petition reiterated his "understanding that [he] did not fulfill the [exhaustion] requirements set out in [28] U.S.C. [§] 2254" as to the ineffective trial counsel and perjury claims. (Pet'r's Letter Requesting to have Writ Withdraw[n] Without Prejudice, dated May 27, 1999) This court's dismissal of the first petition had nothing to do with claims of ineffective appellate counsel or improperly admitted identification testimony. Rodriguez v. Artuz, No. 97-3038 (S.D.N.Y. June 21, 1999); cf. Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir. 2003) (the "relevant measure" of equitable tolling is "how quickly a petitioner sought to exhaust the claims dismissed as unexhausted, and how quickly he returned to federal court after doing so). As for the claims of ineffective trial counsel and perjured testimony, Rodriguez did not pursue them further in state court.
The Second Circuit seems to have anticipated the same distinction. Rodriguez, 303 F.3d at 439 ("at least as to the claim based on the prosecutor's summation," equitable tolling may apply to the pending period of the first habeas petition).
Moreover, Rodriguez was fully aware of the facts surrounding these claims well before he filed his first petition. According to his coram nobis application, Rodriguez sent a letter on February 12, 1996, to the Clerk of the Appellate Division requesting "that the record indicate" that he "was not amused with the finish[ed] product" of his appellate counsel and "that future litigation by [writ] of Error Coram Nobis could be forthcoming." (Aff. in Supp. of Mot. and Application for a Writ of Error Coram Nobis at 10). However, he waited more than three years after sending that letter — and more than two years after filing his first petition — to raise the two claims in state court. See Kendrick v. Greiner, 296 F. Supp.2d 348, 361-62 (E.D.N.Y. 2003); cf. Tineo v. United States, No. 01-4511, 2002 WL 1997901, at *2 (S.D.N.Y. Aug. 29, 2002) ("[T]he princip[al] inquiry to determine timeliness under [ 28 U.S.C. § 2255(4)] is therefore whether a duly diligent person in [petitioner's] circumstances could have discovered the facts supporting his claim prior to . . . one year before the motion was actually filed.").
Nor does "relation back" doctrine apply to these two claims. As the Second Circuit has explained, that doctrine "is inapplicable when the initial habeas petition was dismissed, because there is no pleading to which to relate back." Warren, 219 F.3d at 114. To permit petitioners to take advantage of the doctrine in such cases
would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Id. (quoting Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999)).
Even assuming that the doctrine is available to Rodriguez, his claims of ineffective assistance of appellate counsel and erroneous admission of identification testimony do not arise "out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fama v. Comm'r of Corr. Servs., 345 F.3d 805, 815 (2d Cir. 2000) (quoting Fed.R.Civ.P. 15(c), which governs motions to amend pleadings). In determining whether the claim arises out of the same conduct or occurrence, "[t]he pertinent inquiry . . . is whether the original complaint gave the defendant fair notice of the newly alleged claims." Id.; see also Moore v. United States, No. 00-4560, 2001 WL 253432, at *8 (S.D.N.Y. Mar. 15, 2001). In his initial petition, Rodriguez complained about the prosecutor's summation, his trial counsel's failure to object to the prosecutor's summation, and alleged perjury by a prosecution witness. He mentioned nothing of his appellate counsel's failure to raise issues over certain identification testimony. Hence, the original petition could not have alerted respondent to the new claims in his second petition.
The second habeas petition was filed on November 22, 1999, 818 days after the AEDPA limitations period — without equitable tolling — had expired. Even tolling the 143-day period during which the coram nobis application was pending in the Appellate Division, petitioner's new claims in his second habeas petition are out of time by 675 days and are therefore time-barred.
* * *
For the reasons set forth above, Rodriguez's claims of (i) ineffective assistance of appellate counsel and (ii) error in the receipt of evidence gained pursuant to an unlawful search and arrest are dismissed as untimely. Upon application of 28 U.S.C. § 2244(d) (2) and equitable tolling, Rodriguez's claim of prosecutorial misconduct is timely. Because respondent moved to dismiss the present petition on timeliness grounds, respondent has not yet responded to the claim of prosecutorial misconduct on its merits. This matter is referred again to Magistrate Judge Kevin Nathaniel Fox for a report and recommendation.SO ORDERED.