Opinion
00 Civ. 7925 (LAP)(AJP)
March 14, 2001
REPORT AND RECOMMENDATION
Petitioner Noel Bonilla seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his November 9, 1994 conviction, after a jury trial in Supreme Court, Bronx County, of murder and related offenses, and sentence of twenty-five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-6.) See also People v. Bonilla, 233 A.D.2d 238, 238, 650 N.Y.S.2d 531, 531 (1st Dep't 1996), appeal denied, 89 N.Y.2d 1009, 658 N.Y.S.2d 247 (1997).
Bonilla's petition alleges that:
(1) the show-up identification was suggestive (Pet. ¶ 12(A)),
(2) ineffective assistance of trial counsel (Pet. ¶ 12(B)),
(3) he "was denied a fair trial, when trial counsel failed to show that the body was found the next day, after Bonilla was arrested" (Pet. ¶ 12(C)), and
(4) trial counsel failed to use contradictory statements of a police officer (Pet. ¶ 12(D)).
For the reasons set forth below, I recommend that Bonilla's petition be dismissed as barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").
PROCEDURAL BACKGROUND
The chronology of Bonilla's proceedings in State court and on this Petition are set forth in this Court's February 15, 2001 Order to Show Cause, as follows:
Petitioner Bonilla's conviction became final on June 2, 1997, 90 days after the New York Court of Appeals denied leave to appeal on March 3, 1997. From the papers he submitted along with his Petition, it appears that he filed a state collateral attack (pursuant to CPL § 440.10) on or about November 20, 1997. Thus, between June 2, 1997 and November 20, 1997, 171 days of the limitation period ran. The AEDPA limitations period then was tolled until the motion was decided and leave to appeal denied, on or about April 22, 1999.
Bonilla filed his second collateral attack in the First Department on or about October 6, 1999. Thus, between April 22, 1999 and October 6, 1999, an additional 167 days ran, for a total of 338 days.
The First Department denied the coram nobis petition on July 6, 2000, starting the AEDPA limitation period to run again.
Bonilla's petition is dated August 15, 2000 (although not received by the Court until September 1, 2000). Assuming that the Petition was mailed or delivered to prison authorities on August 15, 2000, an additional 40 days would have run between July 6 and August 15, 2000, for a total of 378 days, which exceeds one year.
(Dkt. No. 5:2/15/01 Order to Show Cause.)
Bonilla's response to my Order to Show Cause was received by the Court on March 7, 2001. (Dkt. No. 6: Bonilla Response to Order to Show Cause.) Bonilla did not take issue with the chronology or calculations in the Order to Show Cause, except to note that: (a) he did not receive the First Department's decision on his coram nobis petition until July 12, 2000, six days after the decision (Bonilla Response to O.S.C. at 1 Ex. 1), (2) it took seven days for him to receive forms to use to file a federal habeas corpus petition from this Court's Clerk's Office (id. at 3-4 Ex. 6), and (3) the one year limitation period should be tolled during the period he had a state Freedom of Information Law ("FOIL") action pending (id. at 2-3).
ANALYSIS BONILLA'S PETITION IS BARRED BY THE AEDPA'S STATUTE OF LIMITATIONS
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:
(d)(1) A 1-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;
. . . .
(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.28 U.S.C. § 2244(d)(1)-(2).
The AEDPA one-year limitations period started to run here on June 2, 1997, ninety days after the New York Court of Appeals denied Bonilla leave to appeal on March 3, 1997. Williams v. Artuz, 237 F.3d 147, 150-51 n. 1 (2d Cir. 2001); accord, e.g., Shaw v. Mazzuca, 00 Civ. 6941, 2001 WL 66404 at *2 (S.D.N.Y. Jan. 26, 2001) (Peck, M.J.); 28 U.S.C. § 2244(d)(1)(A).
The Second Circuit has held that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 121 S.Ct. 104 (200); Shaw v. Mazzuca. 2001 WL 66494 at *2. "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases).
See also, e.g., Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *9 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Stokes v. Miller, 00 Civ. 0806, 2000 WL 640697 at *2 (S.D.N.Y. May 18, 2000) (Peck, M.J.), report rec. adopted by 2000 WL 1121364 (S.D.N.Y. July 21, 2000) (Berman, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *6 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Mojica v. David, 99 Civ. 1990, 2000 WL 631385 at *2 (S.D.N.Y. May 16, 2000) (Peck, M.J.), report rec. adopted by 2000 WL 991391 (S.D.N.Y. July 19, 2000) (Cote, D.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *3 (S.D.N.Y. Mar. 9, 2000) (Sprizzo, D.J. Peck, M.J.); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Lucidore v. New York State Div. of Parole, 99 Div. 2936, 1999 WL 566362 at *4 (S.D.N.Y. Aug. 3, 1999) (Peck, M.J.), aff'd, 209 F.3d 107 (2d Cir.), cert. denied, 121 S.Ct. 175 (2000); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *3 (S.D.N.Y. July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. Apr. 29, 1999) (Peck, M.J.), report rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.).
Accord, e.g., Smith v. McGinnis, 208 F.3d at 17; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 2000 WL 1663437 at *9; Stokes v. Miller, 2000 WL 640697 at *2; Foreman v. Garvin, 2000 WL 631397 at *6; Mojica v. David, 2000 WL 631385 at *2; Lucidore v. New York State Div. of Parole, 99 Civ. 2936, 1999 WL 566362 at *4.
As set forth above, when the toll for the period when Bonilla's state criminal collateral attacks (i.e., his CPL § 440.10 motion and his coram nobis petition) were pending is taken into account, Bonilla's petition was filed 378 days after his conviction became final. Giving Bonilla credit for the six days that it took for him to receive the First Department's decision denying his coram nobis petition (Bonilla Response to O.S.C. at 1 Ex. 1), 372 days passed, still more than the 365 days allowed under the AEDPA.
Bonilla also seeks credit for the seven days that it took for him to receive federal habeas forms from this Court's Clerk's Office. (Bonilla Response to O.S.C. at 3-4 Ex. 6.) Bonilla is not entitled to a toll for that period. No such toll is provided in the AEDPA. The one year limitation period allows a potential habeas petitioner time to prepare the necessary habeas corpus petition, including obtaining the necessary forms. The one year period cannot be "tolled" further while a potential petitioner seeks forms from the court (at least absent unusual circumstances, not present here). Bonilla's argument is similar to that of petitioners who sought more time because of their lack of legal knowledge or delays in the prison law library, all of which have been rejected by the courts in this Circuit. See, e.g., Davis v. Artuz, 99 Civ. 9244, 2001 WL 199454 at *3 (S.D.N.Y. Feb. 28, 2001) ("[P]etitioner claims to have had limited access to the law library and other judicial resources. Such conclusory assertions are not sufficient to trigger equitable tolling."); Martinez v. United States, 00 Civ. 1214, 2000 WL 863121 at *2 (S.D.N.Y. June 28, 2000) (Petitioner's "allegations that he is not proficient in the English language, lacks necessary legal expertise and training, and that the Government did not take any steps to educate him as to his rights and the applicable procedural rules are insufficient to warrant equitable tolling."); Asencio v. Senkowski, 00 Civ. 6418, 2000 WL 1760908 at *1-2 (S.D.N.Y. Nov. 30, 2000) (rejecting petitioner's claim of limited access to law library as a ground for tolling because "hardships associated with prison conditions do not constitute the rare circumstances under which equitable tolling is granted"); Rhodes v. Senkowski, 82 F. Supp.2d 160, 170-71 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.) ( cases cited therein).
Finally, Bonilla asserts that the AEDPA limitations period should be tolled while his state Freedom of Information Law ("FOIL") proceeding was pending. (Bonilla Response to O.S.C. at 2-3.) This Court and other judges in this Circuit previously have held that a state FOIL proceeding, or a state Article 78 proceeding, is a civil proceeding and not a "properly filed application for state post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2). See DeVeaux v. Schriver, 1999 WL 1216298 at *5, report rec. adopted on this point, 1999 WL 1095580 at *4; see also, e.g., Coleman v. Miller, No. CV-99-3931, 2000 WL 1843288 at *5 (E.D.N.Y. Oct. 16, 2000); Castillo v. Artuz, No. 99 CV 5801, 2000 WL 307373 at *4 (E.D.N Y Feb. 15, 20000; Roman v. Artuz, 00 Civ. 1400, 2000 WL 1201392 at *1 (S.D.N.Y. Aug. 22, 2000); Sorce v. Artuz, 73 F. Supp.2d 292, 297-98 (E.D.N.Y. 1999).
Thus, Bonilla's FOIL proceeding does not toll the AEDPA limitations period.
CONCLUSION
For the reasons set forth above, the Court should dismiss Bonilla's Petition as barred by the AEDPA's one-year statute of limitations. Since Bonilla has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability should not issue. 28 U.S.C. § 2253.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).