Opinion
02 CIV. 3900 (DLC)
July 18, 2002
MEMORANDUM OPINION AND ORDER
Petitioner Thomas Butti ("Butti") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Butti was denied leave to appeal his September 5, 1997 conviction by the New York Court of Appeals on September 28, 1998. Butti's state court conviction became final ninety days thereafter on December 28, 1998. Pursuant to 28 U.S.C. § 2244(d)(1), Butti had one year, or until December 28, 1999, to file a habeas petition in federal court.
On May 31, 2000, Butti filed a motion to vacate his September 5, 1997 conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 in Westchester County Court. On September 13, 2001, the Westchester County Court denied Butti's motion. On October 9, 2001, Butti filed an application for a certificate for leave to appeal the denial of his CPL § 440.10 motion in the New York State Supreme Court Appellate Division, Second Department. On March 11, 2002, Butti's application was denied.
Butti's habeas petition was filed on April 15, 2002, see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 122 S.Ct. 197 (2001) (prison mailbox rule), approximately 839 days after the expiration of his one-year limitations period.
Discussion
AEDPA provides that "[t]he 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" the one-year limitation period established by subsection 2244(d). 28 U.S.C. § 2244(d)(2). Thus, if Butti's limitations period was still running when he filed his Section 440.10 motion, the period would be tolled at least for the period of time during which Butti's Section 440.10 motion was pending before the Westchester County Court and then before the Appellate Division, if not for the entire period of time from Butti's initial filing of the Section 440.10 motion in the Westchester County Court until denial by the Appellate Division of leave to appeal from the trial court's denial of reconsideration. See Hodge v. Greiner, 269 F.3d 104, 107 n. 1 (2d Cir. 2001) (declining to consider whether the actual pendency of the Section 440.10 motion or the period from filing to denial of leave to appeal is tolled).
Butti's limitations period expired on December 28, 1999, approximately 155 days before he filed his Section 440.10 motion. However, since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," courts may equitably toll the period. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). Equitable tolling of the one-year limitations period for Section 2254 petitions is available "when extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.), cert. denied, 531 U.S. 968 (2000) (citation omitted). In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll." Id. (citation omitted). The causal link between the extraordinary circumstance and the lateness of a petitioner's filing cannot be demonstrated "if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000); see also Hizbullahankhamon, 255 F.3d at 75.
Based on the record before it, the Court has insufficient information to determine whether equitable tolling is appropriate here. Accordingly, it is hereby
ORDERED that Butti is ordered to show cause by affirmation by September 20, 2002 why the one year statute of limitations should not bar the instant petition. No answer shall be required at this time and all further proceedings shall be stayed for 60 days from the date of this Order. If the petitioner fails to comply with this Order by September 20, 2002, the instant petition will be dismissed as time-barred.