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holding that AEDPA's statute of limitations cannot be tolled during period of time Salerno sought leave from New York's Court of Appeals to appeal order from Appellate Division that denied his request to appeal the denial of Article 440 motion to the Second Dep't
Summary of this case from SALERNO v. PEOPLE OF NYSOpinion
No. 01-CV-0776 (RR)
February 11, 2002
RICHARD BOND, Sullivan Correctional Facility, Fallisburg, New York; Petitioner Pro Se
RICHARD A. BROWN, Queens County District Attorney, Kew Gardens, New York; Attorney for Respondent, By: John Michael Castellano, Assistant District Attorney
MEMORANDUM AND ORDER
On April 10, 1989, at a grocery store in Far Rockaway, Queens, petitioner Richard Bond repeatedly fired a semi-automatic rifle into a crowd of people in the hopes of obtaining revenge against a drug rival. As a result, an innocent bystander, Lloyd Pearsol, was killed and five other persons wounded. On July 17, 1991, Bond was convicted after a jury trial in New York Supreme Court, Queens County, of one count of second degree murder see N.Y. Penal Law § 125.25[2] (McKinney 1998), five counts of first degree reckless endangerment see N.Y. Penal Law § 120.25 (McKinney 1998), and one count of second degree criminal possession of a weapon see N.Y. Penal Law § 265.03 (McKinney 2000). He is presently incarcerated, serving consecutive prison terms of twenty-five years to life on the murder charge and two and one-third to seven years on each of the reckless endangerment counts, as well as a concurrent term of five to fifteen years for weapon possession.
Proceeding pro se, Bond now petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on the grounds that (1) his arrest was in violation of the Fourth Amendment; (2) the trial court erred in declaring a mistrial when his case was first presented to a jury; (3) the trial court erred in declaring two witnesses unavailable at his second trial, thereby allowing receipt of their testimony at his initial trial; (4) the prosecutor improperly withheld exculpatory material; (5) trial and appellate counsel were constitutionally ineffective; (6) the evidence was insufficient to establish guilt of murder beyond a reasonable doubt; and (7) the trial court erred in charging the jury on certain principles of law.
Respondent moves to dismiss the petition for failure to file within the time allotted by federal law. Having carefully reviewed the submissions of the parties, this court agrees that the petition is untimely and hereby grants the motion to dismiss.
Discussion
I. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which took effect on April 24, 1996, establishes a one-year limitations period for the filing of § 2254 petitions. That period runs 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.28 U.S.C. § 2244(d)(1) (2002). Bond does not suggest, and nothing before this court indicates, that subparagraphs (B), (C), or (D) apply to his case. Accordingly, this court considers the issue of timeliness with reference only to § 2244(d)(1)(A).
A conviction is final for purposes of § 2244(d)(1)(A) when certiorari proceedings are completed in the United States Supreme Court or, in the case of prisoners such as Bond who elect not to file petitions with the Supreme Court, when "the time to seek direct review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001). Bond's time to petition for certiorari expired on October 1, 1997, ninety days after the New York Court of Appeals unanimously affirmed his conviction. See Supreme Court Rule 13; see also People v. Bond, 90 N.Y.2d 877, 661 N.Y.S.2d 824 (1997); People v. Bond, 227 A.D.2d 412, 642 N.Y.S.2d 320 (2d Dep't 1996). Thus, the one-year period within which he would have had to file for § 2254 relief would normally have expired on October 1, 1998, more than two years before his actual December 14, 2000 filing.
Since § 2254 petitions are deemed to have been filed on or about the date they are delivered to prison officials for transmittal to the court, see Houston v. Lack, 487 U.S. 266 (1988), and since this court assumes that Bond's petition was so delivered on the date he signed it, i.e., December 14, 2000, that date is considered the date of filing.
The court recognizes that AEDPA's one-year limitations period is tolled during the pendency of any "properly filed application for State post conviction or other collateral review with respect to the pertinent judgment . . ." See 28 U.S.C. § 2244(d)(2). In this case, although Bond filed numerous collateral challenges to his conviction, respondent submits that a number were not "properly filed" and, thus, could not trigger AEDPA's tolling provision. As to those challenges that were properly filed, respondent argues that the period tolled still does not bring Bond's filing within the limitations period. Respondent is correct on both points.
Bond's first collateral attack on his conviction was a § 440.10 motion, filed on July 28, 1997, before his conviction even became final. Since the motion was not finally disposed of until March 2, 1998, when the Second Department denied leave to appeal the trial court's rejection of the motion, AEDPA's one-year filing period did not begin to run in Bond's case until that March 2, 1998 date.
Bond asserts that any calculations based on state court rulings should be made with reference to the date he received the ruling, not the date of issuance by the state court. This argument has already been rejected by the Second Circuit. See Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000).
From March 2, 1998 until December 9, 1998, when Bond filed a second § 440.10 motion, thereby again tolling the statute of limitations, 281 days of the 365-day AEDPA limitations period had run. Tolling ceased and the statute again began to run on January 13, 1999, when the Second Department granted Bond's request to withdraw his § 440.10 motion.
On March 1, 1999, Bond challenged his conviction by petitioning the New York Court of Appeals for a writ of error coram nobis. The Court of Appeals dismissed the application on April 29, 1999, specifically ruling that "[t]here is no authority for initiating a writ of error coram nobis in the Court of Appeals." People v. Bond, 93 N.Y.2d 896, 690 N.Y.S.2d 176 (1999). This ruling supports respondent's argument that the March 1, 1999 petition was not "properly filed" so as to trigger tolling under 28 U.S.C. § 2244(2)(d). In Bennett v. Artuz, 199 F.3d 116, 121-23 (2d Cir. 1999), aff'd sub nom. Artuz v. Bennett, 531 U.S. 4 (2000), the Second Circuit construed the term "properly filed" as used in § 2244(d)(2) to mean "an application for state post-conviction relief recognized as such under governing state procedures." The New York Court of Appeals has repeatedly refused to recognize coram nobis petitions filed with it. See, e.g., People v. Johnson, 86 N.Y.2d 775, 631 N.Y.S.2d 601 (1995); People v. Gibbs, 85 N.Y.2d 1030, 631 N.Y.S.2d 285 (1995); People v. Claudio, 77 N.Y.2d 988, 571 N.Y.S.2d 899 (1991). Such applications must be made to the state Appellate Divisions. See People v. Bachert, 69 N.Y.2d 593, 596, 516 N.Y.S.2d 623, 624 (1987). Thus, Bond's time to file a § 2254 petition was not tolled while he ignored established state procedures to seek relief plainly unavailable from the New York Court of Appeals. Neither was it tolled while he moved that court for reconsideration of its order of dismissal. See generally Adeline v. Stinson, 206 F.3d 249, 252 (2d Cir. 2000) (holding that prisoners may not "create their own methods of seeking post-conviction relief").
Only on July 12, 1999, when Bond filed for coram nobis relief in the proper forum, i.e., the Appellate Division, Second Department, was the AEDPA limitations period again tolled in his case. But in the interim, from January 13, 1999, when Bond was granted leave to withdraw his second § 440.10 motion until July 12, 1999, another 181 days had run on the statute of limitations. Adding this number to the 281 days already elapsed, the 462-day total already put Bond well past the 365-day limit for filing a § 2254 petition. Thus, even without any consideration of subsequent events, respondent's motion to dismiss Bond's petition as untimely must be granted.
Nevertheless, in the interest of completeness, the court briefly chronicles the remaining events leading to Bond's late federal filing. On October 25, 1999, the Second Department denied Bond's coram nobis petition. See People v. Bond, 265 A.D.2d 564, 696 N.Y.S.2d 868 (2d Dep't 1999). When Bond sought review of that decision by the Court of Appeals, his application was dismissed as "not appealable under Criminal Procedure Law, section 450.90(1)." People v. Bond, 94 N.Y.2d 860, 704 N.Y.S.2d 535 (1999) (Ciparick, J.). In its recent consideration of similar circumstances, the Second Circuit ruled that AEDPA tolling would apply to the period when a coram nobis petition was pending before an Appellate Division — in Bond's case, from July 12, 1999 to October 25, 1999 — but it would not apply to any subsequent request for review by the Court of Appeals since New York law is clear that "no application for leave to appeal . . . will lie from the order of the Appellate Division denying an application for a writ of error coram nobis."Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) (quotingPeople v. Adams, 82 N.Y.2d 773, 603 N.Y.S.2d 991 (1993)).
In any event, from October 25, 1999, only sixteen days ran before AEDPA's limitations period was again tolled since, on November 10, 1999, Bond again filed for § 440.10 relief. Tolling continued until April 14, 2000, when the Second Department affirmed the trial court's denial of 440.10 relief. See People v. Bond, No. 2000-02164 (2d Dep't Apr. 14, 2000). Although Bond sought further review by the Court of Appeals, his application was dismissed on May 15, 2000 "because the order sought to be appealed is not appealable under Criminal Procedure Law, section 450.90 (1)." People v. Bond, 95 N.Y.2d 793, 711 N.Y.S.2d 161 (2000) (Rosenblatt, J.) Thus, no tolling applies to the latter motion. See generally Hizbullahankhamon v. Walker, 255 F.3d at 69-72.
The limitations period again ran for the forty-two days from April 14, 2000 to May 26, 2000, when Bond filed a second coram nobis petition with the Second Department. It resumed running on November 6, 2000, when the petition was denied, see People v. Bond, 277 A.D.2d 245, 715 N.Y.S.2d 867 (2d Dep't 2000), and continued for thirty-eight days, until December 14, 2000, the date of Bond's petition to this court.
In sum, Bond's federal habeas petition must be dismissed as untimely because, even when the statute of limitations is tolled during the pendency of all "properly filed" applications for state collateral relief, his federal filing is 193 days beyond the 365-day statutory limit. This is because no tolling applied to the 558 days between March 2, 1998 and December 9, 1998 (281 days), January 13, 1999 and July 12, 1999 (181 days), October 25, 1999 and November 10, 1999 (sixteen days), April 14, 2000 and May 26, 2000 (forty-two days), and November 6, 2000 and December 14, 2000 (thirty-eight days).
II. Constitutionality of AEDPA Limitations Period
Bond submits that if his petition is ruled untimely under AEDPA, dismissal is barred by the Suspension Clause of the United States Constitution. See U.S. CONST. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it"). This argument has already been rejected by the Second Circuit. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000); Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam), aff'd on opinion below, 990 F. Supp. 275 (S.D.N.Y. 1998) (Sotomayor, J.). As the Court explained in Lucidore:
because AEDPA's one year statute of limitations leaves habeas petitioners with some reasonable opportunity to have their claims heard on the merits, the limitations period does not render the habeas remedy inadequate or ineffective to test the legality of detention, and therefore does not per se constitute an unconstitutional suspension of the writ of habeas corpus.Id. at 113 (citations omitted).
The Second Circuit has not yet found it necessary to rule on whether the Suspension Clause or any other part of the Constitution mandates an "actual innocence" exception to AEDPA's statute of limitations since it has not yet been presented with a case of actual innocence. Id. To establish actual innocence, a habeas petitioner must come forward with "`new reliable evidence that was not presented at trial' and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Id. at 114 (quoting Schlup v. Delo, 513 U.S. 298, 299 (1995)). Bond cannot satisfy this standard. His petition points to no "new evidence." Instead, he simply reiterates the argument made to the trial jury: that he discharged his rifle at the grocery store in self defense. This is essentially a factual issue and, having been resolved against Bond by the jury, it does not allow petitioner to argue actual innocence in this court so as to excuse his untimely filing.
Bond complains that the trial judge failed to correctly instruct the jury on the legal principles applicable to a defense of justification. This, however, is a question of state law not properly the subject of federal habeas review even when a petition is timely filed.See Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001) (citing Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990) ("Because federal habeas corpus relief does not lie for errors of state law . . . federal habeas review . . . is limited, at most, to determining whether the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation."). Moreover, the Court of Appeals rejected this claim as procedurally defaulted, which stands as an independent state law bar to federal review. See, e.g.,Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001).