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holding that petitioner's lack of notice that his coram nobis petition had been denied did not justify equitable tolling
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01 Civ. 5712 (WHP)(GWG)
July 23, 2002
REPORT AND RECOMMENDATION
On June 22, 2001, Marvin Anderson filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent now moves to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1). For the following reasons, the respondent's motion should be granted.
I. STATEMENT OF FACTS
A. Anderson's Trial and Direct Appeal
On July 1, 1994, Anderson was indicted on one count each of Robbery in the Third Degree (New York Penal Law § 160.05) and Grand Larceny in the Third Degree (New York Penal Law § 155.35). See Affirmation in Support of Motion to Dismiss Petition, filed March 13, 2002 ("Resp. Aff.") at ¶¶ 2, 4. A trial was held before Justice Richard Andrias, Supreme Court, New York County, and a jury. Resp. Aff. at ¶ 4. Because the jury was unable to reach a unanimous verdict, Judge Andrias declared a mistrial on February 3, 1995. Id. A second trial commenced on April 17, 1995, before Justice Harold Rothwax, Supreme Court, New York County, and a jury. Id.
The evidence at trial came largely from two undercover officers in the Times Square area who witnessed the robbery. The officers observed Anderson and another man, Williams, approach Jean Goffard, a tourist from Belgium. See Brief for Defendant-Appellant, Appellate Division, First Department, dated June 1998 ("Def. Brief") (reproduced as Ex. F to Notice of Motion to Dismiss Petition ("Resp. Not."), filed March 13, 2002) at 3, 7. Anderson pushed Goffard and, while Goffard was off-balance, reached into his pocket. See id. at 8. As the police pursued both Anderson and Williams, they saw Anderson throw money and a piece of paper to the ground. See id. The paper was a baggage claim check with the name "J. Goffard." Id. at 9. Anderson was apprehended at the scene. Id. at 2. He did not testify at trial. See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By A Person In State Custody, filed June 22, 2001 ("Petition") at 2.
Because the transcript of the trial has not been made part of the record, the summary of evidence is based on the defendant's brief to the Appellate Division.
The jury found Anderson guilty of Robbery in the Third Degree but acquitted him of the Grand Larceny charge. See Affirmation in Response to Counsel's Motion, dated May 7, 1998 ("1998 Aff.") (reproduced as Ex. C to Resp. Not.) at ¶ 3. On May 31, 1995, a judgment of conviction was entered sentencing Anderson to two and one-third to seven years imprisonment. Id. Anderson filed a notice of appeal on June 16, 1995. Id. His appointed counsel's brief was not filed until October 1997. Id.
In the meantime, on November 18, 1996, Anderson was paroled. Id. ¶ 4. Anderson thereafter absconded, causing a parole warrant to be issued. Id. Based on his status as a fugitive, the prosecution obtained an order dismissing the appeal on February 3, 1998. Id. ¶ 5. Several days before that order issued, however, Anderson was apprehended on the warrant and as a result the appeal was reinstated. See Defendant-Appellant's Reply Affirmation, dated May 11, 1998 (reproduced as Ex. D to Resp. Not.) at ¶ 2; Def. Brief at 2. In June 1998, Anderson's counsel filed a new appellate brief on his behalf. The only issue Anderson raised on appeal was whether the trial court had erred in denying a missing witness instruction based on the People's failure to call the robbery victim, a native of Belgium, at trial. See Def. Brief. at 10-20.
On December 1, 1998, the First Department unanimously affirmed Anderson's conviction, holding that the trial court had properly refused the request to charge on the ground that the People had made sufficient efforts to attempt to obtain the presence of the witness at trial. The Court also held in the alternative that the denial of the charge would have been harmless error due to the "overwhelming evidence of defendant's guilt and the circumstance that [Anderson] received ample latitude to comment on the witness's absence." People v. Anderson, 256 A.D.2d 27 (1st Dep't 1998).
Anderson apparently sought leave to appeal his conviction to the Court of Appeals, although the application has not been made part of the record. On February 15, 1999, the Court of Appeals denied Anderson leave to appeal. People v. Anderson, 93 N.Y.2d 850 (1998).
B. Anderson's Coram Nobis Petition
In a pro se petition for a writ of error coram nobis dated February 25, 1999, and filed with the Appellate Division, First Department on or about March 8, 1999, Anderson argued that both his appellate counsel and his trial counsel had been ineffective. See Petition for a Writ of Error Coram Nobis, dated February 25, 1999 ("Pet. Coram Nobis") (reproduced as Ex. A to Petitioner's Affirmation ("Pet. Aff."), filed October 10, 2001). His application was denied by the First Department on February 1, 2000. People v. Anderson, 269 A.D.2d 884 (1st Dep't 2000). In response to an order issued by this Court, Anderson submitted an affirmation indicating that he was unaware that his application had been denied. See Pet. Aff. at 1.
C. The Instant Petition
Approximately 14-1/2 months after the denial of his coram nobis petition, Anderson submitted a Petition for a Writ of Habeas Corpus dated April 18, 2001. In his petition, Anderson argued that his counsel at the first trial provided ineffective assistance, that Anderson was denied his right to a pre-trial identification hearing, that the judge at his first trial excessively participated in the proceedings, and that a witness for the prosecution gave perjured testimony. See Petition at 5-6 and attached pages (unnumbered).
Recognizing that the length of time between the First Department's decision in the coram nobis petition and the date of Anderson's habeas corpus petition was greater than a year, this Court ordered Anderson to provide an affirmation explaining why the one-year statute of limitations set forth in 28 U.S.C. § 2244(d) should not bar Anderson's habeas petition. Anderson provided this affirmation, claiming he was unaware that a decision had been entered concerning his coram nobis application and suggesting that he was unable to gain access to trial transcripts. See Pet. Aff. at 1.
The respondent now moves to dismiss the petition as time-barred.
II. DISCUSSION
A. The AEDPA Limitation Period
The respondent asserts that Anderson's habeas petition is time-barred pursuant to 28 U.S.C. § 2244(d)(1), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Section 2244(d)(1) establishes a one-year limitation period within which a person in state custody must file a federal writ of habeas corpus. While AEDPA provides several possible dates from which the one-year period may begin to run, the only date relevant to Anderson's case is contained in 28 U.S.C. § 2244(d)(1)(a). Under that subsection, Anderson's one-year limitation period began to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(a).
B. The Date Anderson's Conviction Became Final
Although Anderson was originally sentenced on May 31, 1995, a judgment is not considered final under AEDPA until the petitioner has had an opportunity to seek appellate review. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.) ("direct review" under 28 U.S.C. § 2244(d)(1)(a) incorporates both direct appellate review in the state court and the opportunity to seek certiorari in the United States Supreme Court), cert. denied, 122 S.Ct. 279 (2001). In addition, the judgment is not final until either the petitioner has completed United States Supreme Court certiorari proceedings or the time to seek review via such proceedings has expired. Id. Anderson's conviction thus did not become final until May 15, 1999, ninety-days following the February 15, 1999 denial of leave to appeal by the New York Court of Appeals. This is true even though Anderson did not actually file a petition for certiorari. See id. If the limitations period were measured from this date, Anderson's petition would be untimely.
Anderson filed a petition for writ of error coram nobis, however. 28 U.S.C. § 2244(d)(2) provides that time spent by a petitioner pursuing "State post-conviction or other collateral review" does not count towards the one-year limitation period. Thus, Anderson's coram nobis petition, filed March 8, 1999 — during the 90-day period allowed for writ of certiorari and before the one-year period even began to run — tolled the limitations period. See Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir.) (tolling provision of 28 U.S.C. § 2244(d)(2) will be triggered by the filing of a state coram nobis petition), cert. denied, 531 U.S. 840 (2000).
The tolling ended, however, on February 1, 2000, when the coram nobis petition was denied because no further review was available for his coram nobis petition in the State courts. See, e.g., Hizbullahankhamon v. Walker, 255 F.3d 65, 70-72 (2d Cir. 2001), cert. denied, 122 S.Ct. 2593 (2002). Also, Anderson did not actually seek a writ of certiorari from the Supreme Court with respect to the denial of his coram nobis petition so the limitations period was not tolled for any additional period. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (in cases where no certiorari petition is filed after state post-conviction proceedings or other collateral review, 28 U.S.C. § 2244(d)(2) does not permit tolling for an additional ninety-day period), cert. denied, 122 S.Ct. 1606 (2002). Thus, the one-year period provided in section 2244(d)(1) was tolled from its original inception until February 1, 2000. The one-year period then ran from February 1, 2000 to February 1, 2001. Because the earliest date from which the filing of Anderson's petition might be measured is April 18, 2001 (the date on which the petition was signed), the petition is time-barred under 28 U.S.C. § 2244(d).
In response to the Court's order to show cause why the petition should not be dismissed, Anderson stated in his affirmation that he was not given notice of the First Department's decision denying his application for a writ of error coram nobis. Pet. Aff. at 1. While Anderson does not make the argument explicitly, he may be contending that his coram nobis petition was still "pending" until the time he received notice of it. This argument, however, was rejected in Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.), cert. denied, 531 U.S. 1018 (2000), which held that a coram nobis petition is considered concluded on the date it is decided, not on the date notice was received of the decision. Accord Hunter v. Greiner, 2000 WL 245864, at *3 (S.D.N.Y. March 3, 2000) (the statutory tolling period of 28 U.S.C. § 2244(d)(2) "generally expires when the motion is decided regardless of when the petitioner learns of that decision"); Bond v. Walsh, 2002 WL 460046, at *2 n. 2 (E.D.N.Y. Feb. 12, 2002); Evans v. Senkowski, 105 F. Supp.2d 97, 100 (E.D.N.Y. 2000); see also Donovan v. Maine, 276 F.3d 87, 92 (1st Cir. 2002) (limitations period runs from date of decision not date of notice).
III. EQUITABLE TOLLING
Because the one-year AEDPA filing period is a statute of limitations and not a jurisdictional bar, courts may extend the period to prevent inequity. Smith, 208 F.3d at 17. Such equitable tolling, however, may be applied only in a "rare and exceptional circumstance." Id. (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999), cert. denied, 528 U.S. 1007 (1999)). Not only must a petitioner show that "extraordinary circumstances" existed, but that these circumstances actually "prevented" the petitioner from filing on time. Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000) (quoting Smith, 208 F.3d at 17). This showing requires a causal connection between the circumstances complained of and the late filing of the habeas petition. See Valverde, 224 F.3d at 134. Further, the petitioner seeking equitable tolling must "have acted with reasonable diligence throughout the period he seeks to toll." Smith, 208 F.3d at 17.
While Anderson does not invoke the doctrine of equitable tolling, the Court will consider whether the doctrine would offer any relief based on two sets of factual circumstances reflected in Anderson's petition: (1) the allegation that Anderson did not receive notice of the denial of his coram nobis petition and (2) the allegation that Anderson did not have access to transcripts necessary to prepare a petition.
A. Anderson's Lack of Notice
Anderson's lack of notice that his coram nobis petition had been denied does not constitute an "extraordinary circumstance" that would justify equitable tolling. The failure to receive notice is not "extraordinary" because Anderson could not justifiably have assumed that notice of the decision on his coram nobis petition would be sent to him. In the absence of some specific legal requirement or promise, there is nothing unusual about a court issuing a decision and a litigant not receiving a copy of it in the mail. In addition, Anderson's failure to receive notice of the decision may well be attributable to the fact that he was released from custody during the time the coram nobis petition was pending. Anderson does not state that he provided a copy of his new address to the Appellate Division or otherwise made arrangements to receive notice of the denial such that he was entitled to rely on a copy being mailed to him.
Because there is no right to appeal the denial of a petition for writ of error coram nobis, the New York rule measuring the time to appeal from the date the litigant is given notice of entry, N.Y.C.P.L.R. § 5513, does not apply.
Even if Anderson's failure to receive notice of the coram nobis ruling could be considered an "extraordinary circumstance," Anderson would still have to show that he acted "with reasonable diligence throughout the period he seeks to toll," Smith, 280 F.3d at 17. This demonstration "cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Valverde, 224 F.3d at 134. Here, Anderson did not act with any diligence at all. He apparently never inquired with the Appellate Division of the status of his petition and thus cannot be said to have made any effort — let alone a "reasonabl[y] diligen[t]" effort — to determine the disposition of the petition. In Plowden v. Romine, 78 F. Supp.2d 115 (E.D.N.Y. 1999), the court found that it was unreasonable for a petitioner to wait 17 months before inquiring of the Court of Appeals as to whether his application for leave to appeal had been denied. The court found a lack of diligence even though the petitioner was incarcerated and had been represented by counsel for purposes of seeking leave to appeal. Id. at 120 ("There is no limiting principle to [petitioner's] argument that simple ignorance — absent any showing of diligence on his part or allegations of impediments to his staying informed about his case — should provide a basis for equitable tolling. . . ."). In this case, Anderson had been released from custody in December 1999, prior to the denial of the coram nobis petition in February 2000. Thus he had the same access as any other litigant to check with the Appellate Division as to the status of his petition during the entire one-year period following the petition's denial.
In sum, the lack of notice regarding the outcome of his post-conviction challenge does not warrant equitable tolling because Anderson could have filed his federal habeas petition timely with minimal effort. Other cases have similarly denied equitable tolling where the petitioner raised a lack of notice to justify the failure to file a timely federal habeas petition. See, e.g., Ferguson v. Mantello, 2000 WL 1721140, at *2 (S.D.N.Y. Nov. 16, 2000) (petitioner must show more than lack of notice in order to warrant equitable tolling); Evans, 105 F. Supp.2d at 100-01 (refusing to find equitable tolling where petitioner claimed he had not received notice of final state court action); Mandarino v. United States, 1998 WL 729703, at *2 (S.D.N.Y. Oct. 16, 1998) (granting respondent's motion to dismiss for untimeliness, without evidentiary hearing, in part because petitioner should have discovered that petition for certiorari had been denied by consulting case reporters).
A petitioner's failure to receive notice of an adverse decision has been held to warrant equitable tolling in some cases. See, e.g., Vasquez v. Greiner, 68 F. Supp.2d 307, 310 (S.D.N.Y. 1999); Armand v. Strack, 1999 WL 167720, at *4 (E.D.N.Y. 1999). These cases, however, invariably involve incarcerated prisoners who, in the words of Vasquez, do not have "meaningful access" to a publication containing court rulings. 68 F. Supp.2d at 310. Here, by contrast, Anderson was not incarcerated.
B. Trial Transcripts
In his affirmation, Anderson alleges that "the Assistant District Attorney stated that since April 1999 the People have attempted to obtain a copy of the trial transcript but have [been] unsuccessful. This is due diligence on the District Attorney." Pet. Aff. at 1. While Anderson's specific meaning is unclear, the Court will assume that Anderson seeks to rely on the absence of transcripts to justify the delay in filing his petition.
As already noted, the equitable tolling doctrine requires a petitioner to show that extraordinary circumstances prevented him from filing his habeas petition in a timely fashion and that the late filing was not a result of his own lack of diligence. Anderson, however, has not shown what efforts he made to obtain any needed transcripts. In addition, he has not established that his inability to obtain the transcripts prevented him from filing his habeas petition. For example, Anderson does not allege that some late receipt of the transcript was the only event that enabled him to file the instant petition. Indeed, his petition repeats arguments that were made in his state court submissions filed years ago. Compare Petition at 5-6 and attached pages (unnumbered) with Def. Brief at 2-6, 10-22; Pet. Coram Nobis at 3-10 (unnumbered). A petitioner's inability to obtain trial transcripts does not warrant equitable tolling where the transcript is not necessary to develop the claims in the petition or where the petitioner has not made reasonable efforts to obtain the transcripts on his own. See, e.g., De La Rosa v. Keane, 2001 WL 1525257 (E.D.N.Y. Nov. 13, 2001); Rodriguez v. United States., 1999 WL 1487600, at *4 (E.D.N.Y. Dec. 23, 1999).
For these reasons, the time period for filing of the petition should not be equitably tolled.
CONCLUSION
The petition should be dismissed as barred by the statute of limitations set forth in 28 U.S.C. § 2244.