Opinion
9:98-CV-0732 (DNH)(GLS)
April 19, 2001
FOR THE PETITIONER: WILLIAM C.T. BARKER, Petitioner, Pro Se, Mohawk Correctional Facility, Rome, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, Office of Attorney General, OF COUNSEL: MARIA MORAN, ESQ. Ass't Attorney General, Syracuse, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se William C.T. Barker ("Barker") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on May 5, 1998. On June 10, 1998, the Hon. David N. Hurd, then-Magistrate Judge, issued an Order and Report-Recommendation pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254 which noted that it was unclear whether this petition was time-barred due to the one year statute of limitations applicable to petitions brought under § 2254 as a result of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") (Dkt. No. 5 ("June Report-Recommendation") at 2). The June Report-Recommendation directed the Office of the Attorney General for the State of New York ("Attorney General") to file a response to the petition, and noted that its response could address the issue of the timeliness of Barker's application. Id. On October 23, 1998, the Attorney General filed his response and memorandum of law requesting dismissal of the petition. Dkt. Nos. 12 and 13.
II. Discussion
A. State Court Proceedings
The testimony at trial revealed that at approximately 10:30 p.m. on April 30, 1993, Officer Robert Fitzgerald ("Officer Fitzgerald") of the Troy Police Department was directed to respond to a complaint about a loud party at an address in the Landisburg area of Troy, New York. Since Officer Fitzgerald was very near this location at the time he received the radio call, he arrived at the location within seconds (Trial Tr. (6/2/94) ("June 2 Tr.") at 21-23). He determined that there were approximately 75-100 people at the party, and therefore called for assistance. Id. at 26. Sgt. Dennis Fernet ("Sgt. Fernet") was the next officer to arrive on the scene. Id. at 27-28. The two proceeded down an alleyway where they observed people fighting. Sgt. Fernet ordered the individuals to "break it up," however, the fighting continued. Id. at 37-38. When he attempted to separate the two, one of the men, who was later identified as Christopher Schewe ("Schewe"), grabbed Sgt. Fernet in a choke hold. Id. at 38-39. Officer Fitzgerald unsuccessfully attempted to separate Sgt. Fernet and Schewe, and then struck Schewe with a baton near his shoulder, and Schewe fell to the ground. Id. at 39. A crowd of people began to approach the police officers, and Sgt. Fernet sprayed mace toward them in an effort to disperse the crowd. Id. at 42. After the crowd dispersed, Officer Fitzgerald began to arrest James Bodah, Jr. ("Bodah"), whom he had observed fighting. Id. at 43-44. As Officer Fitzgerald was placing handcuffs on Bodah, he noticed Barker near a tree trunk. Id. at 46. He then saw Barker throw a rock which hit another police officer who had arrived at the scene, Sgt. Michael Blair ("Sgt. Blair"), who fell to the ground. Id. at 49-50. Officer Fitzgerald told Officer Joseph West, who had also arrived at the scene, that Barker was the individual who threw the rock which hit Sgt. Blair; Officer West then arrested Barker. Id. at 52-53.
Each day of trial testimony begins on page one. The court's references to testimony will be preceded by the date the testimony was taken.
Sgt. Blair was in the intensive care unit for approximately two weeks as a result of this incident, Id. at 117. At the time he was discharged from the hospital, he had double vision, pneumonia, no short-term memory or cognitive skills, and was unable to walk on his own. Id. at 118. As of the date of the trial, he was still suffering from perceptual deficits and was unable to return to work. Id. at 122.
Barker testified that he brought his stereo equipment to the party at about 7:30 p.m. on April 30, 1993 (June 6 Tr. at 126-127). After the police arrived at the party, Barker stated that there was a lot of "commotion," and as he walked into the backyard, an officer grabbed Barker's face and sprayed it with mace for "no reason." Id. at 136-37. He stated that after a few minutes, two or three other officers told him to get on the ground. Id. at 138-39. When Barker told the officers he had done nothing wrong, he claimed he was knocked to the ground with a billy club and placed in handcuffs. Id. at 138-39. He further testified that he never witnessed any objects being thrown at the police that night, and that he personally never threw anything at Sgt. Blair. Id. at 141.
During cross-examination, the County District Attorney elicited testimony which revealed that Barker had previously brought a civil suit against, inter alia, 21 members of the Troy Police Department and the City of Troy for seven million dollars arising out of the April 30th incident. Id. at 172. Barker candidly admitted that he therefore had seven million reasons to deny throwing the rock that hit Sgt. Blair.nId. at 173-74.
On July 16, 1993, a Rennselaer County Grand Jury charged Barker with two counts of second degree assault; the first count alleged that he recklessly caused serious physical injury to Sgt. Blair with a dangerous instrument ("reckless assault"), while the second count alleged that the assault was perpetrated with the intent to prevent Sgt. Blair from performing a lawful duty ("intentional assault"). See Indictment. On June 9, 1994, the jury found Barker guilty of reckless assault, in violation of N.Y. Penal Law § 120.05(4) (June 9 Tr. at 11-16). On July 28, 1994, he appeared before the Hon. Patrick J. McGrath ("Judge McGrath") and was sentenced to an indeterminate term of two and one-third to seven years imprisonment (Sentencing Tr. (7/28/94) at P. 6).
In his appeal, Barker claimed: (i) the verdict was against the weight of the evidence; (ii) three errors committed by the trial court deprived Barker of a fair trial: (a) improper bolstering of Officer Fitzgerald's identification of Barker as the criminal; (b) the charge to the jury on the issue of identification; and, (c) improper introduction of identification testimony in the prosecution's rebuttal case; (iii) he was denied effective assistance of counsel; (iv) his right to due process was violated when Judge McGrath allowed testimony concerning Sgt. Blair's suffering subsequent to the assault; and, (v) the sentence imposed was excessive. Appellate Br. at points I through V. The Third Department unanimously affirmed the conviction, People v. Barker, 223 A.D.2d 899 (3rd Dep't 1996) ("Barker I"), and the Court of Appeals denied Barker leave to appeal. People v. Barker, 88 N.Y.2d 964 (1996) ("Barker II").
B. Effect of Petitioner's Release from Prison
Barker's claims do not appear to be moot by his apparent release from prison. He filed his habeas petition while in custody, and the collateral consequences which the court may presume still exist as a result of his conviction do not render this matter moot. Spencer v. Kemna, 523 U.S. 1, 12 (1998) ("it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences'") (quoting Sibron v. New York, 392 U.S. 40 (1968)); Binder v. Szostak, 1997 WL 176353 (N.D.N.Y. Apr. 11, 1997) (Pooler, D.J.) (citations omitted).
See Dkt. No. 16 (correspondence sent to Barker from the court marked, inter alia, "released").
C. Failure to Notify Court of Current Address
Since the filing of respondent's opposition to the petition, correspondence sent to Barker from the court has been returned marked "Released — Return to Sender" (Dkt. Nos. 16 and 18).
Barker was specifically advised by then-Magistrate Judge Hurd to keep the court apprised of his current address, and that his failure to do so would result in the dismissal of his action (Dkt. No. 5 at PP. 5-6). He has wholly failed to comply with this Order for nearly eighteen (18) months. See Dkt. No. 16. Therefore, the court could recommend dismissal of the petition on this basis alone. However, because the application must also be dismissed as time-barred under the AEDPA, the court considers the timeliness of Barker's petition.
D. Timeliness of Petition
Barker dated his petition April 13, 1998 (Dkt. No. 1 at 7). Along with this petition, he filed an unsigned statement in which he contended that his habeas corpus petition was "untimely filed because of the denial of my request to obtain legal assistance from inmate welch [sic] in preparing this petition" (Dkt. No. 3).
As a result of the AEDPA, 28 U.S.C. § 2244(d)(1) now provides that federal habeas petitions challenging a judgment of a state court are subject to a one year statute of limitations. Specifically, 28 U.S.C. § 2244(d) now reads:
(1) A one year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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.
A conviction becomes final under the AEDPA at the conclusion of the ninety days during which the party could have sought certiorari in the United States Supreme Court. Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of Rules of the Supreme Court of the United States); Allen v. Hardy, 478 U.S. 255, 258 n. 1 (1986) (decision becomes final "where the availability of appeal [is] exhausted, and the time for petition for certiorari ha[s] elapsed").
Barker was denied leave to appeal by the Court of Appeals on July 9, 1996. See Barker II. Therefore, his conviction became "final" for purposes of the AEDPA no later than October 7, 1996, and he was required to file his petition within one year of this date. Since he did not sign his petition until April 13, 1998, this action is time-barred unless the court may equitably toll the statute of limitations imposed on it by the AEDPA. See Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir.) (AEDPA's one-year period is a statute of limitations which courts may equitably toll), cert. denied, ___ U.S. ___, 121 S.Ct. 104 (2000).
In discussing the doctrine of equitable tolling, the Smith court noted:
Equitable tolling applies only in the "rare and exceptional circumstance." Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, [528] U.S. [1007] . . . (1999). In order to equitably toll the one-year period of limitations, [petitioner] must show that extraordinary circumstances prevented him from filing his petition on time. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (noting that this court has applied equitable tolling doctrine "'as a matter of fairness' where a plaintiff has been 'prevented in some extraordinary way from exercising his rights . . . .'") (citation omitted). Smith, 208 F.3d at 17.
"[T]he party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Warren v. Garvin, 219 F.3d 111 (2nd Cir.) (citing Smith, 208 F.3d at 17), cert. denied, ___ U.S. ___, 121 S. Ct. 404 (2000). In Valverde v. Stinson, 224 F.3d 129, 132 (2nd Cir. 2000), the Circuit held that the intentional confiscation of a prisoner's legal papers by a corrections officer shortly before the filing deadline, if proven, justifies equitable tolling.
In this case, Barker appears to claim that he did not prepare his petition because a particular inmate was not available to assist him in the preparation. Dkt. No. 3. However, an inmate does not have any constitutional right to a legal assistant of one's choice. Mays v. Mahoney, 1994 WL 48831, at *9 (S.D.N Y Feb. 14, 1994). The fact that Barker chose to delay the filing of his petition because a particular inmate was unable to assist him in preparing it does not qualify as a "rare and exceptional circumstance" warranting equitable tolling. See e.g., Saldana v. Artuz, 2000 WL 1346855, at *2 (S.D.N.Y. Sept. 19, 2000) (difficulty accessing library books due to three months in solitary confinement and six months in prison lock down did not amount to extraordinary circumstances) (citations omitted); Hizbullahankhamon v. Walker, 105 F. Supp.2d 339, 344 (S.D.N.Y. 2000) (solitary confinement without access to law library does not qualify as extraordinary circumstances justifying equitable tolling); Davis v. Artuz, 2001 WL 199454, at *3 (S.D.N.Y. Feb. 28, 2001) (confinement in administrative segregation for total of five years does not warrant equitable tolling of statute of limitations under AEDPA).
It appears as though Barker was nevertheless eventually able to prepare his petition without the assistance of inmate Welch (Dkt. No. 3).
Therefore, because the petition is untimely under the AEDPA, the court recommends that it be denied for this reason as well.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Barker's petition be DENIED and DISMISSED for the reasons stated above; and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.