Opinion
05 Civ. 568 (TPG).
December 13, 2007
OPINION
This is a petition for a writ of habeas corpus filed by state prisoner, Joey White, pursuant to 28 U.S.C. § 2254.
Respondent moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that the petition is barred by the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1) ("AEDPA"). The motion is granted.
Procedural History
On September 23, 1998, following a jury trial in Supreme Court, Bronx County, petitioner was found guilty of robbery, criminal possession of stolen property, and criminal possession of a weapon. He was sentenced to a prison term of 8 to 16 years and appealed. On September 28, 2000, the Appellate Division, First Department affirmed the conviction. People v. White, 275 A.D.2d 680, 713 N.Y.S.2d 687. On December 11, 2000, the New York Court of Appeals denied petitioner's application for leave to appeal to that court.People v. White, 95 N.Y.2d 971, 722 N.Y.S.2d 487.
On March 10, 2001, petitioner applied for a writ of error coram nobis to the Appellate Division, First Department. The application was denied on November 8, 2001. People v. White, 288 A.D.2d 962, 734 N.Y.S.2d 528.
On February 26, 2002, petitioner filed a petition for a writ of habeas corpus in the United States District Court for the Western District of New York. The docket sheet indicates that petitioner filed a motion to withdraw the petition on March 5, 2002 that was granted on March 22, 2002. White v. Greiner, 02 Civ. 06100-CJS.
On June 24, 2002, petitioner moved in Supreme Court, Bronx County for an order compelling the Clerk's Office of that court to provide him with free transcripts. The motion was denied on August 14, 2002.
On March 10, 2003, petitioner filed a motion to vacate his conviction pursuant to N.Y.C.P.L. § 440.10. The motion was denied on July 10, 2003. On July 22, 2004, the Appellate Division, First Department denied leave to appeal.
On August 5, 2004, petitioner filed for habeas corpus relief in the New York State Supreme Court, Wyoming County. The petition was denied on September 9, 2004.
On October 5, 2004, petitioner brought the petition for a writ of habeas corpus that is currently before this court.
On January 19, 2005, Chief Judge Michael Mukasey granted petitioner's request to proceed in forma pauperis, but directed petitioner to submit an attached affirmation within 60 days explaining why the petition should not be barred by the statute of limitations. Petitioner submitted this affirmation on January 27, 2005.
On April 20, 2007, respondent filed the motion to dismiss now before the court.
Discussion
Respondent asserts that the petition is barred by the statute of limitations in 28 U.S.C. § 2244(d)(1).
Section 2244(d) imposes a one-year limitation on habeas corpus applications by persons in state custody. The statute specifies certain alternative dates which can start the running of the one-year period. The date applicable in the present case is the date on which the judgment became final by the conclusion of the direct review process.
Petitioner's conviction became final on March 11, 2001, the last date upon which he could have sought Supreme Court certiorari. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Petitioner's habeas petition was not filed until October 5, 2004, more than three years after the March 11, 2001 date. However, a tolling of the statute may occur under certain circumstances.
Statutory Tolling
While a person in state custody has only one year to file a habeas corpus petition, the limitation period will be tolled during the pendency of any state post-conviction proceeding. Section 2244(d)(2) contains the following relevant tolling provision:
The time during which a properly filed action 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.
Time during which a petitioner could have appealed a state post-conviction motion decision and time during which such an appeal is being decided are included within the definition of "pending in state court"; time spent seeking U.S. Supreme Court certiorari regarding a post-conviction motion is not. See Smaldone v. Senkowski, 273 F.2d 133 (2d Cir. 2001); Davis v. Keane, 9 F. Supp. 2d 391 (S.D.N.Y. 1998).
The tolling provision in § 2244(d)(2) does not mean that the clock will reset and the time period will begin anew on the date that state court remedies are exhausted. It merely articulates that the clock, which starts when the conviction became final, will be stopped while state proceedings are pending. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
In the present case, petitioner filed certain proceedings for post-conviction review in the state courts that toll the statute. While he also filed a habeas petition in the United States District Court for the Western District of New York, the Supreme Court has held that a federal habeas petition does not statutorily toll the § 2244(d)(2) limitation period. Duncan v. Walker, 533 U.S. 167, 172 (U.S. 2001).
Of course, a significant amount of time was tolled while petitioner's various state actions were pending. However, there were stretches of time which cannot be considered to be covered by the tolling provisions of the statute.
These periods are:
1) 228 days between November 8, 2001 (when the first state post-conviction proceeding was denied) and June 24, 2002 (when petitioner's motion for state transcripts was filed)
2) 208 days between August 14, 2002 (when the state motion for transcripts was denied) and March 10, 2003 (when the state motion under § 440.10 was filed)
3) 14 days between July 22, 2004 (when the § 440.10 motion was denied) and August 5, 2004 (when the state habeas petition was filed)
4) 26 days between September 9, 2004 (when the state habeas petition was denied) and October 5, 2004 (when the instant motion was filed)
In total, there are 476 days during which no action was pending that would statutorily toll the § 2254 limitation period. Thus, 111 days more than the 365 allowed elapsed between the date the state conviction became final and the date this federal habeas petition was filed. This means that petitioner was at least 15 weeks late in filing this petition. Indeed, respondent contends that the motion to obtain copies of the trial transcripts also did not toll the statute and thus petitioner was over 23 weeks late in filing. Using either count, the tolling provided by statute is insufficient to prevent the one-year limitation from operating to bar the petition. However, the court must also consider equitable tolling.
Equitable Tolling
The Second Circuit has held that AEDPA's one-year limitation is not a jurisdictional bar. Smith, 208 F.3d at 17. Thus, a court at its discretion can equitably toll the limitation period. However, in order for equitable tolling to apply, the petitioner must show (i) that extraordinary circumstances prevented him from filing his petition on time and (ii) that he acted with reasonable diligence throughout the period he seeks to toll. Id.; Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d. Cir. 1996). The fact that a petitioner is pro se does not alone merit equitable tolling.Smith, 208 F.3d at 17. Further, the Supreme Court has made clear that equitable tolling should be used sparingly, and not in cases of "garden variety claims of excusable neglect." Irwin v. Dept. of Vet. Affairs, 498 U.S. 89, 96 (1990).
In order for a petitioner to successfully rely on extraordinary circumstances, he must show "a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing." Valverde v. Stinton, 224 F.3d 129, 134 (2d Cir. 2000).
Petitioner's January 27, 2005 affirmation, submitted to explain why the petition should not be barred by the statute of limitations, first states that he filed a federal habeas petition in the Western District of New York on March 2, 2002, within the one-year limitation period. Petitioner then alleges that through further research, he learned that he had filed his petition with the wrong district court and had been confused about what issues were preserved for federal review. He states that he tried very hard to comply with the one-year limitation by filing it with that court, and that he hopes the court can now see that he "acted with reasonable diligence throughout to seek to toll."
However, any significance that filing the first habeas petition within the limitation period might have had is diminished by the fact that, after this first habeas petition was withdrawn, petitioner waited almost a year, from March 22, 2002 until March 10, 2003, before commencing his next state-court action. As already stated, there is no statutory tolling during the time a federal habeas petition is pending, and the most that can be accorded petitioner is to consider the statute to have been equitably tolled while this petition was pending. Even were the court to do so, the motion was pending for less than a month so would not be sufficient to avoid the statute of limitations.
Petitioner attempts to explain the delay by stating that the law library at his facility seats only 25 persons and over half of the 1200 inmates sign up to go every day. He states that the process takes weeks to allow a person to use the library, and to demonstrate his attempts to gain access, he attaches a copy of a misbehavior report detailing an incident where he was caught out of his cell and in the library without permission on September 5, 2002. Petitioner's affidavit, however, does not specify how often he was actually able to use the library, or which of the filings were delayed because of the restricted access.
Several Second Circuit cases have touched upon the subject of library access when addressing a claim that the AEDPA limitation period should be equitably tolled, but no Second Circuit case has definitively decided the issue.
However, several other courts, including the Southern and Eastern Districts of New York, have addressed the issue and determined that lack of access to a prison library is not a sufficient reason to invoke equitable tolling. In Stokes v. Miller, 216 F. Supp. 2d 169, 172-73 (S.D.N.Y. 2000), petitioner in that case contended that entry to the prison library was "a nightmare." The court held that this was not extraordinary because many inmates could make this same claim, and concluded that tolling the limitation period in that situation would frustrate AEDPA's purpose. Id. Other courts have held similarly.See, e.g., Martinez v. Rivera, 2007 U.S. Dist. LEXIS 58506 (S.D.N.Y. 2007); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998); United States v. Van Poyck, 980 F. Supp. 1108, 1111 (C.D. Cal. 1997). When a delay in filing is the result of a non-extraordinary circumstance, "Congress is presumed to have considered such equities in enacting a one-year limitations period." Jihad v. Hvass, 267 F.3d 803, 807 (8th Cir. 2001).
Further, despite his contention that he had trouble accessing the library, petitioner was able to file four proceedings between March 11, 2001, when the limitation period began, and October 5, 2004, when the current habeas petition was filed. Thus, the limitation period should not be equitably tolled because of petitioner's alleged lack of library access.
Conclusion
For the foregoing reasons, the motion is granted and the petition is dismissed.
SO ORDERED.