Opinion
01-CV-0776 (JBW), 03-MISC-0066 (JBW)
June 12, 2003
JUDGMENT ORDER
On February 11, 2002, the instant petition for a writ of habeas corpus was dismissed as time-barred. Petitioner was granted a certificate of appealability on the time-bar issue. The court of appeals for the Second Circuit, in a summary order, vacated and remanded the judgment.
In the order, the court of appeals found no error on the issues reached by the district court. The judgment was vacated solely because the district court did not consider an equitable tolling claim raised by petitioner in a footnote. Remand was ordered to allow the district court to determine that issue in the first instance.
This court, having considered petitioner's equitable tolling claim, finds it to be without merit. No hearing on the matter is necessary. For the reasons discussed below, the petition is dismissed as time-barred.
I. Law
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244 (d)(1). This limitations period ordinarily begins 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." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13. Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
In calculating the one-year limitation period, 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. . . ." 28 U.S.C. § 2244 (d)(2).
The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000); Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) "[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
The AEDPA statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
II. Application
It is unnecessary to repeat the analysis performed in the February 11, 2002 order that initially determined whether the instant habeas application was timely. The only issue presently before this court is whether the AEDPA limitations period should be equitably tolled for the 278 days that elapsed between March 6, 1998 and December 9, 1998 — in essence, the time between the denial of his first motion to vacate judgment and his counsel's filing of a second motion to vacate judgment. If this court were to conclude that the period should be tolled, petitioner's habeas application would be deemed timely.
Petitioner's argument, in his own words, is this:
Moreover, during the time that had elapsed between March 6, to December 9, 1998, petitioner was represented by counsel at this juncture, who in turn had all of petitioner's case files. During this time, all counsel filed within the courts was a F.O.I.L. [Freedom of Information Law] request, which he manifested tolled the A.E.D.P.A., time. He later denied this once his misrepresentation was brought to the attention of the bar committee, after petitioner learned that FOIL requests do not toll the A.E.D.P.A., time. ( Cole v. Walsh, 98-2348 (2d Cir. October 2, 2000), also see Exhibit B-1)[.]
[Petitioner's] Affirmation in Reply to Mot. to Dismiss Habeas Corpus Pet'n, at 2 n. 1. Petitioner is correct that Freedom of Information Law requests do not toll the AEDPA limitations period under section 2244(d)(2) of Title 28 of the United States Code. See, e.g., Hodge v. Greiner, 259 F.3d 104, 107 (2d Cir. 2001).
To the extent petitioner argues equitable tolling is warranted because his retained counsel was in possession of all his files, his claim is without merit. Unlike petitioner, most state prisoners are unable to afford any kind of representation in state collateral proceedings, and New York State prisoners have no federal or state constitutional or statutory right to counsel with respect to the filing of collateral motions. Petitioner was not impeded in any way by counsel from filing a timely habeas application.
Petitioner's claim that he relied on counsel's misstatement of the law with respect to whether the FOIL requests toll the AEDPA limitations period is also without merit. On November 23, 2000, three weeks before petitioner filed his habeas application, he wrote to the lawyer who represented him in his second state motion to vacate judgment stating the following:
I am in the process of proceeding into the federal courts on a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I need to ask you a couple of questions before I proceed.
If your memory serves you correctly, back in the month of May of 1998, you filed the F.O.I.L. request for me. The response to said F.O.I.L. took over six months to come to some conclusion. My question to you is, "would the filing of a state or federal Freedom of Information Act [F.O.I.L.] request toll the time limitation under 2244(d)(2)."
I have ask[ed] some of the law clerks here, in which they are not sure.
Nov. 23, 2000 Letter from Richard Bond to Howard Levine, at 1.
Nothing in this letter suggests that petitioner's lawyer misled petitioner about the tolling effect of a FOIL request. To the contrary, the tenor petitioner's letter to counsel is that the tolling effect was a question that had not previous occurred to petitioner and that might effect the timeliness of his habeas application.
After filing his habeas application, petitioner wrote again to his lawyer, this time arguably attempting to coax a particular response:
In relation to the A.E.D.P.A.'s statute of limitation, I need an affidavit crediting the time of (7) months you was retained to assist me in a post conviction motion to your misunderstanding of the new A.E.D.P.A.'s statute of limitation.
[During] the time of May, 1998, to December, 1998, all you filed was a [F.O.I.L.], requesting the District attorney of Queens County to disclose the police dispatch tapes of the night I was arrested. When I asked you if the F.O.I.L. request would toll the A.E.D.P.A.'s statute of limitation you stated yes to me twice, once on the phone with me and my mother on a three way call, and once when I called you at your office.
I need you affirmation of the above facts, so I may show cause and prejudice for the (7) months of untoll[ed] time, because of your misunderstanding of the new federal law.
Mar. 9, 2001 Letter from Richard Bond to Howard Levine, at 1.
Petitioner does not indicate what response, if any, he received from Mr. Levine. At any rate, no affidavit from the attorney was forthcoming. Petitioner's mother subsequently filed a complaint against Mr. Levine before the Westchester Bar Association. In responding to the complaint, which petitioner did not put into the record before this court, Mr. Levine detailed the work he performed for petitioner and stated:
I have no idea what Ms. Williams is talking about when she says I stated to her and Mr. Bond that "I had put a F.O.I.A. request into the courts and that will tolled the A.E.D.P.A.'s Statute of Limitation." (Ms. Williams claims this is a Federal Statute.)
I never talked about any Federal Statutes nor did I ever agree to handle the appeal or review on the Federal Level.
Apr. 26, 2001 Letter from Howard N. Levine to Robert P. Dohn, at 2.
The accumulated correspondence is convincing evidence that petitioner never inquired of his retained counsel what effect a Freedom of Information Law request would have on the AEDPA limitations period; that counsel did not offer petitioner any opinion, right or wrong, on the tolling effect; and that petitioner did not rely on a misstatement of the tolling effect from counsel. This court does not credit petitioner's claims to the contrary. Equitable tolling is not warranted on this ground.
To the extent petitioner seeks equitable tolling on the ground that he himself was mistaken about the tolling effects of a Freedom of Information Law request, the claim is without merit. Ignorance of the law does not provide a basis for equitable tolling. See Zorilla v. Artuz, No. 99 Civ. 9249, 2000 U.S. Dist. LEXIS 3934, at *3 (S.D.N.Y. 2000).
All other claims raised by petitioner were adequately addressed in the February 11, 2002 order, which is incorporated herein by reference.
III. Conclusion
The petition for a writ of habeas corpus is dismissed as time-barred.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.