MEMORANDUM AND ORDER

NAOMI BUCHWALD, District Judge

Petitioner pro se Linton Serrano ("Serrano" or "petitioner") filed this petition for a writ of habeas corpus on October 2, 2003 challenging his February 6, 1992 New York State murder conviction. Serrano alleges that he was deprived during his trial of his constitutional rights to due process and to confront the witnesses against him when the trial court admitted portions of a prosecution witness's prior inconsistent grand jury testimony.

Because petitioner's conviction became final under the Antiterrorism and Effective Death Penalty Act ("AEDPA") on February 14, 1997, Judge Mukasey of this Court ordered petitioner on November 18, 2003 to file an affirmation detailing why his petition should not be dismissed as time-barred under the AEDPA's one-year limitations provision. See 28 U.S.C. § 2244(d)(1). On June 18, 2004, petitioner submitted an affirmation urging that the period until his petition was filed should be equitably tolled for limitations purposes on the ground that petitioner had hired an attorney, Scott Brettschneider, Esq., in February 1997 to file a habeas petition for him but that Brettschneider improperly failed to do so.

Because petitioner's allegations of this conduct on Brettschneider's part, if true, could support a finding that equitable tolling should apply, see Baldayaque v. United States, 338 F.3d 145, 150-53 (2d Cir. 2003), Judge Mukasey ordered respondent to file a response to the petition. On November 16, 2004, respondent moved to dismiss on the ground that, notwithstanding petitioner's allegations regarding his attorney's conduct, the habeas petition was time-barred. In support of his motion, respondent submitted a summary affidavit by Brettschneider stating that Brettschneider was retained to investigate the possibility of filing a motion to vacate petitioner's conviction under N.Y.C.P.L. § 440.10 (a "440 Motion"), and not to file a federal habeas petition.

Given the parties' conflicting accounts of Brettschneider's conduct and the brevity of respondent's submission on the issue, the Court was not in a position to make a factual finding as to the appropriateness of equitable tolling. The Court therefore appointed Alexandra Shapiro, Esq., of Latham Watkins LLP ("Latham") and the Court's Criminal Justice Act Panel, to represent petitioner for the purpose of marshaling evidence on the equitable tolling issue and reporting back to the Court.See Serrano v. Smith, No. 03 Civ. 9107, 2004 WL 2884299 (S.D.N.Y. Dec. 13, 2004).

On April 20, 2005, after gathering affidavits from petitioner, petitioner's family and a former secretary to Brettschneider, Latham submitted papers in opposition to respondent's motion to dismiss and in support of a request to take further discovery, including a deposition, from Brettschneider. After reviewing Latham's submission, the Court determined that discovery from Brettschneider would be useful and, on May 17, 2005, notified the parties by letter that they should take such discovery and then report back to the Court.

On July 5, 2005, the Court received a letter from Brettschneider's attorney requesting permission to move to quash a document and deposition subpoena that Latham had sent to Brettschneider. On July 11, 2005, in further support of his motion to quash, Brettschneider submitted a lengthy affidavit explaining the circumstances of his representation of petitioner. On July 12, 2005, the Court heard the parties' arguments on the proposed motion. At that conference, Brettschneider produced petitioner's file to Latham and was sworn, took the witness stand and answered the Court's and Latham's questions about his representation of petitioner.

Upon consideration of all the information currently before us, including Latham's submission, petitioner's and his family's affidavits, and Brettschneider's affidavit and testimony during the July 12, 2005 conference, the Court is persuaded that further discovery from Brettschneider is not necessary because the information submitted to date is sufficient to render a decision on the equitable tolling issue. Before discussing that issue, however, the Court wishes to thank Latham for its dedicated work on this case. Latham demonstrated extraordinary effort and effectiveness on petitioner's behalf, and the Court would not now be in a position to decide this issue were it not for Latham's participation in this case.

THE FACTS

Not surprisingly, petitioner and Brettschneider offer different versions of the events at issue. Below, we set forth each version before discussing our findings as to equitable tolling.

I. Brettschneider's Version

According to Brettschneider, he was first contacted by petitioner's mother and sister in early 1997 and flew to Florida shortly thereafter to speak with them about petitioner's case. Although petitioner's mother and sister advised Brettschneider that petitioner's state appeal had been denied, they told him that they had found new witnesses who were present during the shooting at issue and who were willing to give testimony that would exculpate petitioner. The mother and sister requested that Brettschneider speak to these potential witnesses for the purpose of filing a "440 motion," which Brettschneider understood to be a motion under N.Y.C.P.L. § 440.10, based on newly discovered evidence. Brettschneider requested that the family provide him with the witnesses' contact information and suggested that they allow him to hire a private investigator to assist him in locating other witnesses or evidence. However, the family allegedly refused to do either, instead insisting on locating their own witnesses and bringing them to Brettschneider's offices to be interviewed. Brettschneider agreed to that procedure and quoted the family a fee of $20,000 for the investigation and preparation of the 440 Motion, as well as an additional $30,000 should the motion be successful and a new trial ordered.

Brettschneider testified that, after he returned to New York from visiting with petitioner's family, he accepted several collect calls from petitioner. During each call, he testified, he spoke with petitioner exclusively about a 440 Motion based on newly discovered evidence because "Petitioner was fixated on the new witnesses, who Petitioner believed would come forward with exculpatory evidence." July 11, 2005 Brettschneider Aff. ¶ 14.

Petitioner's mother and sister thereafter brought several witnesses to see Brettschneider in his office in New York. None of these witnesses provided any new information relating to the events at issue, however. Brettschneider therefore informed petitioner several times that the witnesses his family was producing were not providing any valuable information and that, in order to file a 440 Motion, he would need petitioner or petitioner's family to produce some sort of new evidence.

In mid-1998, the federal government began deportation proceedings against petitioner because of his murder conviction. Brettschneider agreed to represent petitioner in those proceedings for no additional fee because Brettschneider regretted that he had been unable to file a 440 Motion on petitioner's behalf. Also in mid-1998, Brettschneider testified, petitioner was indicted in Westchester County for stabbing a fellow inmate at Sing Sing, where petitioner was incarcerated. Brettschneider again agreed to represent petitioner in that proceeding for no additional fee, and he subsequently negotiated an advantageous plea agreement for petitioner and represented petitioner through the sentencing phase of the case. Brettschneider contends that both petitioner and petitioner's family agreed that Brettschneider would apply the $20,000 retainer to cover the investigation of the 440 Motion, the immigration case and the new criminal case.

By 1999, having still not discovered any basis for a 440 Motion, Brettschneider informed petitioner and his family several times that he would be unable to file a 440 Motion unless they located a witness who could provide new information. Finally, according to the documents that Brettschneider produced during the July 12, 2005 conference, petitioner wrote to Brettschneider on March 12, 2000, stating:

I request that you kindly provide me with a chronological summary of events in regard to my case. Thus, I can better understand what it is taking place and where exactly we are in the hopeful chain of steps towards my possible release.

On March 17, 2000, Brettschneider responded to petitioner by letter, stating:

I received your letter of March 12. First since we last spoke I believe your family brought two witnesses, both having absolutely no value to your case. One man in particular stands out in my mind because he said he was in the bathroom during the entire incident. I am certainly willing to bring a 440 motion but I need someone who saw something. I need something newly discovered, these witnesses provided nothing new or substantive. Call me collect between 5 and 7:30 PM any night. Need direction as to whether there are more witnesses.

A. Petitioner's Complaint to the Grievance Committee

In September 2003, petitioner filed a complaint with the New York State Grievance Committee for the Tenth Judicial District (the "Grievance Committee"). Among other things, petitioner alleged that: (i) he retained Brettschneider to assist him in filing a federal habeas petition; (ii) Brettschneider "guaranteed [petitioner] that [petitioner] would get a reversal;" (iii) when he was able to reach Brettschneider by phone, Brettschneider "would tell [him] not to worry [and] that the first step was to submit a 440 motion;" (iv) Brettschneider refused to return petitioner's file when petitioner's family requested it; and (v) Brettschneider "failed to submit any paperwork to the federal courts and my time limit for filing my federal habeas corpus has expired."

On November 4, 2003, Brettschneider responded to petitioner's complaint with a letter explaining essentially what was reiterated to this Court in Brettschneider's July 11, 2005 affidavit and his testimony during the July 12, 2005 conference and recounted above. On September 28, 2004, the Grievance Committee notified Brettschneider by letter that it had deliberated on petitioner's allegations, determined that there was no breach of the Code of Professional Responsibility and dismissed petitioner's complaint.

II. Petitioner's Version

Petitioner reiterates and expands upon the version of these events that he described in his complaint to the Grievance Committee. According to petitioner, after the Court of Appeals denied him leave to appeal in late 1996, he learned that he had one year to file a federal habeas petition. He thus "wanted to hire an attorney to file a federal habeas petition as soon as possible." Mar. 22, 2005 Serrano Decl. ¶ 5. Shortly thereafter, petitioner called Brettschneider and asked whether he would be willing to file a habeas petition on petitioner's behalf. After traveling to Sing Sing to meet with petitioner about the case, Brettschneider allegedly agreed to file a federal habeas petition. Brettschneider also allegedly "told [petitioner] that there were many errors in [petitioner's] trial and that he could have [petitioner] out of prison within two years." Id. ¶ 6.

According to petitioner, Brettschneider then suggested that a 440 Motion based on newly discovered evidence might be appropriate if new witnesses could be located. Petitioner agreed that this sounded like a productive idea and referred Brettschneider to petitioner's family for help in finding witnesses and/or other new evidence. Petitioner also states that, at this initial meeting, he gave Brettschneider all of his case-related documents, including trial transcripts and minutes, police reports and briefs.

According to petitioner, he and Brettschneider agreed that petitioner's family would pay Brettschneider a $20,000 retainer to "prepare and file [petitioner's] federal habeas petition and to investigate and file a possible 440 motion." Id. ¶ 8. According to declarations submitted by petitioner's mother and sister, they paid the $20,000 to Brettschneider in early 1997. Shortly after that payment, according to petitioner's mother, Brettschneider stopped calling petitioner's family with updates on the case. When petitioner's mother and sister were able to speak to Brettschneider by calling him, sending him letters or stopping by his office, Brettschneider told them that "everything was going fine with Linton's case and that [they] should not worry" or that "Linton would be out of prison soon." Rivera-Savinon Supp. Decl. ¶ 6-7; Rivera Supp. Decl. ¶ 6-8. According to her declaration, petitioner's mother began in late 2000 or early 2001 to request that Brettschneider's office return petitioner's file but was told by Brettschneider's secretary that "the papers were `filed away' and that we could not get them." Rivera Supp. Decl. ¶ 9.

Petitioner states that he also attempted to call Brettschneider. When he was able to reach Brettschneider on the phone, petitioner alleges, Brettschneider "told [him] to be patient and that the system just takes time." Mar. 22, 2005 Serrano Decl. ¶ 12. Petitioner states that he "understood from [his] conversations with Mr. Brettschneider that [Brettschneider] had not yet filed a 400 motion because he was waiting to find new evidence, but that he had filed [a] federal habeas petition and that it was taking a long time for the court to decide it." Id.

In 2001, after he was released from solitary confinement, petitioner "began to become concerned that [his] appeal was taking so long and that [he] had not heard from Mr. Brettschneider in a long time." Id. ¶ 14. Over the next two years, petitioner alleges that he attempted to contact sources other than Brettschneider, including his trial attorney, his appellate attorney, the D.A.'s office and the courts, to obtain copies of the documents that Brettschneider had taken from petitioner during the initial meeting. Petitioner alleges that he was unable to obtain copies of anything except his appellate brief, which his appellate attorney sent to him at some unspecified time.

In 2003, a fellow inmate told petitioner that petitioner might be entitled to equitable tolling on a federal habeas petition if Brettschneider led petitioner to believe that a habeas petition had previously been filed when in fact it had not. As soon as petitioner learned about this possibility, he alleges, he submitted the present petition on September 11, 2003 and his complaint with the Grievance Committee on September 29, 2003.

III. Equitable Tolling

Equitable tolling is not appropriate in this case. In order to be entitled to equitable tolling, petitioner must establish that "extraordinary circumstances" prevented him from filing his habeas petition within the one-year limitations period.Baldayaque, 338 F.3d at 150. To make this showing, petitioner must establish a causal relationship between the extraordinary circumstances he alleges existed and the lateness of his habeas filing. See id. As part of the causation requirement, petitioner must demonstrate that he exercised reasonable diligence in pursuing his habeas petition throughout the time that he seeks to toll, which, in this case, is the period between February 14, 1998 and October 2, 2003. See id. It is important to remember, moreover, that equitable tolling is only to be applied in the "rare and exceptional circumstance" where a party has been "prevented in some extraordinary way from exercising his rights." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citations omitted).

Petitioner cannot demonstrate either extraordinary circumstances or reasonable diligence. With respect to the former, petitioner argues that Brettschneider promised him that he would file (and, eventually, that he had filed) a habeas petition. Petitioner's evidence is limited to his own affidavits and his submission to the Grievance Committee, all of which were written after he learned in 2003 about the possibility of equitable tolling from a fellow inmate. Notably, these are the first documents to mention a habeas petition. In contrast, Brettschneider's testimony that he was only retained to investigate and, if possible, file a 440 Motion based on newly discovered evidence and that he never told petitioner that he would file a habeas petition is supported by contemporaneous documentary evidence. These documents include two letters from petitioner's mother to Brettschneider in fall 2000 and the correspondence between petitioner and Brettschneider in March 2000, which focus solely on Brettschneider's efforts to acquire newly discovered evidence, a strategy that only makes logical sense in the context of a 440 Motion.

Moreover, to the extent petitioner relies for the "extraordinary circumstances" requirement on Brettschneider's alleged promise to file a habeas petition, that circumstance, even if present at the beginning of Brettschneider's representation, undoubtedly ceased to exist after the March 2000 correspondence. From that date through the date he filed his petition, the only extraordinary circumstance alleged is that Brettschneider failed to return petitioner's file to him despite requests by petitioner and his family to do so. However, Brettschneider testified that he did not recall any requests to have the file returned and, in any case, he had the file in his possession throughout and had no reason to refuse to turn it over if petitioner or his family had requested it. Indeed, the Court is hard pressed to understand what motive Brettschneider could have had to refuse to return any item from petitioner's file if he had been asked to do so, given both that the majority of the documents in the file appear to have been public and that there was no fee dispute or other circumstance that would have rendered the file useful to Brettschneider. All of this suggests that no "extraordinary circumstances" in fact existed that would justify equitable tolling.

Moreover, even if petitioner could establish that extraordinary circumstances existed, he cannot establish that he exercised reasonable diligence in pursuing his habeas petition during the time he seeks to toll. As was explained above, although petitioner alleges that he initially understood that Brettschneider had filed or would file a habeas petition on his behalf, there can be no dispute that, as of receiving Brettschneider's March 2000 correspondence, petitioner was disabused of that misunderstanding. Notwithstanding this, petitioner did not file his petition until over three years later, in October 2003. The only explanation offered for this lag is that, because Brettschneider allegedly failed to return certain items from petitioner's file, petitioner, "who has little formal education and no legal training, was unable to prepare even the most cursory federal habeas petition, much less a petition that sufficiently articulated the complex legal errors that occurred at his trial." Pet. Opp'n at 7; see also id. at 11 n. 5 (stating that, without his trial papers and other documents, "it was virtually impossible for Mr. Serrano to file his own petition"). That argument is simply not applicable to the facts of this case, however. Petitioner's direct appeal resulted in a published decision, in which the Appellate Division stated in part:

The main prosecution witness's Grand Jury testimony, which implicated defendant as the person who shot the victim, was properly admitted on the People's direct case where, after a mid-trial evidentiary hearing . . ., the People proved by clear and convincing evidence that defendant's misconduct, or at least that in which he acquiesced, caused that witness to recant his identification of defendant at the trial. . . . Notwithstanding the witness's assertions that he did not consider the communications as threats, the circumstantial proof established intimidation by defendant himself and by persons acting at defendant's behest. The hearing court properly concluded that the witness's incredible disclaimers of intimidation actually reinforced the People's position.

CONCLUSION

IT IS SO ORDERED.