Opinion
03 Civ. 4692 (LTS)(FM)
March 30, 2004
REPORT AND RECOMMENDATION TO THE HONORABLE LAURA T. SWAIN
I. Introduction Pro se petitioner Jorge Cabrera brings this petition for a writ of habeas corpus to challenge his conviction in Supreme Court, New York County, following his plea of guilty to a one-count indictment charging him with Attempted Criminal Sale of a Controlled Substance in the Third Degree. The state respondent has filed a pre-answer motion to dismiss the petition on the ground that it is untimely. For the reasons that follow, I recommend that the state respondent's motion be granted and the petition dismissed as against both respondents. I further recommend that Cabrera be denied a certificate of appealability because he has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).
II. Factual Background
Cabrera's conviction arose out of a transaction in which he served as a "steerer" during an undercover narcotics purchase. (See Affirm. of Jennifer K Danburg, Esq., dated Dec. 8, 2003 ("Danburg Affirm."), Ex. A at 5-6). On June 8, 2000, as a result of his role in that transaction, Cabrera pled guilty before Justice Michael Obus in Supreme Court, New York County, to Attempted Criminal Sale of a Controlled Substance in the Third Degree, (See Pet. ¶¶ 1, 3, 5, 6), receiving a sentence of ninety days that he already had served, to be followed by five years' probation. (See Danburg Affirm. Ex. A at 2-4, 9). Before his plea was accepted, Cabrera expressed his understanding that a conviction after a guilty plea was the same as a conviction after a trial, and that by pleading guilty he was giving up his rights to a trial. (Id. at 5). Cabrera also acknowledged that no threats or promises apart from the length of his sentence had been made to induce him to plead guilty. (Id. at 4-5).
On September 11, 2000, the Immigration and Naturalization Service charged Cabrera "with deportability" on the basis of his guilty plea. (Danburg Affirm. Ex. B (Cabrera Aff. at ¶ 5)). Subsequently, on October 16, 2000, an Immigration Judge entered an order of deportation against Cabrera. (Id. ¶ 6).
On or about June 1, 2001, Cabrera moved pursuant to Section 440.10 of the New York Criminal Procedure Law, for an order vacating his conviction on the ground that his plea was "not knowing and voluntary" because his trial lawyer had misinformed him about its "deportation consequences." (See id. (Notice of Motion)). More specifically, Cabrera alleged that his lawyer had told him that his conviction would not lead to his deportation because it resulted in a sentence of less than one year. (See id. (Cabrera Aff. at ¶ 2)). Cabrera also contended that his attorney had provided ineffective assistance for the same reason. (Id. (Notice of Motion at 1)).
The state respondent contends on the basis of a "phone conversation with the New York County Supreme Court Clerk's Office," that the actual filing date of the motion was June 11, 2001. (See Resp't's Mem. of L. at 3 n. 2).
Earlier, on May 4, 2001, Cabrera mailed to the New York County District Attorney's Office an unsigned motion to vacate which raised the same issues as his Section 440.10 motion. (See Danburg Affirm. Ex. C). Cabrera's petition impliedly acknowledges that the first motion never was filed. (See Pet. ¶¶ 11-12).
On December 19, 2002, Justice Obus denied Cabrera's Section 440.10 motion. (Id. Ex. G). Thereafter, on January 17, 2002, Cabrera sought leave from the Appellate Division, First Department, to appeal from the denial of his Section 440.10 motion. (Id. Ex. H). On March 11, 2003, the Appellate Division summarily denied that application. People v. Cabrera, 2003 N.Y. App. Div. LEXIS 2603 (1st Dep't Mar. 11, 2003).
Cabrera's habeas petition is dated June 4, was received by this Court'sPro Se Office on June 9, and was filed on June 25, 2003. (Docket No. 1). In his petition, Cabrera alleges that his plea "was unlawfully induced or not made voluntarily" because of defense counsel's "affirmative misadvice of the plea agreement[']s consequences." (Pet. ¶ 13) (block capitalization omitted).
Because he is currently being held at the Federal Detention Center in Oakdale, Eouisiana, on a Bureau of Immigration and Customs Enforcement detainer, Cabrera has styled his petition as being brought under both Sections 2241 and 2254. (Pet. at 1). Additionally, on December 17, 2003, Your Honor entered an order that Cabrera's removal or deportation be stayed "until further order of the Court." (Docket No. 10). It is clear from the face of the petition, however, that Cabrera is challenging his state court conviction, one consequence of which is his continued federal detention. Accordingly, the petition is properly treated as arising under 28 U.S.C. § 2254. See Cook v. N.Y.S. Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (quoting James v. Walsh, 308 F.3d 162, 166 (2d Cir. 2002) ("the substance of the petition, rather than its form" should control)).
On December 8, 2003, the state respondent moved for the dismissal of Cabrera's petition as untimely. (Docket No. 7). Although Cabrera has not submitted any opposition papers, on or about January 22, 2004, Cabrera notified the Court that he had been transferred to Pointe Coupee Parish Detention Center. (See Docket Nos. 11, 12).
The INS subsequently has advised my Chambers that this transfer did not take place until more than one month after the date that the motion to dismiss was mailed to Cabrera at the Oakdale Detention Center. Cabrera therefore apparently had ample time to respond.
The only communication that the Court has received from Cabrera following the filing of the state respondent's motion is his change of address notification. Cabrera nevertheless anticipated the state respondent's motion in his petition, observing that his "petition is not barred by the one year statute of limitations, in that during the time preceding this petition [he] was exhausting [his] state remedies up [until] March 11, 2003." (Pet. ¶ 14) (block capitalization omitted).
III. Discussion
A. Limitations Period
Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a defendant generally must file a federal habeas corpus petition within one year after the date that his conviction becomes final or the facts giving rise to his claim could have been discovered. 28 U.S.C. § 2244(d)(1). The one-year limitations period is subject, however, to the following tolling provision:
Section 2244(d)(1) provides, in full, as follows:
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;
(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 application was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially 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.
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)(2).
Following his June 8, 2000, guilty plea and sentencing, Cabrera had thirty days to appeal from the judgment of conviction. See N.Y. Crim. Proc. Law § 460.10(1)(a) (McKinney 1994). Having failed to file a notice of appeal, Cabrera's conviction therefore became final on July 8, 2000.See Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) ("one-year limitations period began running . . . when [petitioner's] time for filing a notice of appeal from his judgment of conviction expired); Jean-Louis v. Greiner, No. 02 Civ. 6326 (SAS), 2003 WL 1807144, at *2 (S.D.N.Y. Apr. 4, 2003) (same); Rodriguez v. New York, No. 01 Civ. 9374 (KMW) (AJP), 2003 WL 289598, at *11 (S.D.N.Y. Feb. 11, 2003) ("Under 28 U.S.C. § 2244(d)(1)(A), [petitioner's] state court judgment . . . became 'final' . . . when the 30-day period for filing a state notice of appeal from his judgment of conviction expired."). Consequently, absent tolling, Cabrera had one year after his conviction became final on July 8, 2000, in which to file his habeas petition. See 28 U.S.C. § 2244(d)(2).
For the one-year limitations period to be tolled by a "properly filed application for state . . . collateral review," a petitioner must seek review either before or during the one-year limitations period. See 28 U.S.C. § 2244(d)(2): Acosta v. Artuz, 221 F.3d 117, 119 (2d Cir. 2000); Montalvo v. Strack, No. 99 Civ. 5087 (JGK), 2000 WL 718439, at *2-*3 (S.D.N.Y. June 5, 2000). The state and federal courts differ as to when a prisoner's motion should be deemed filed. Under New York law, a motion is deemed filed upon its actual receipt by the state court. See Grant v. Senkowski. 95 N.Y.2d 605, 609 (2001). Under federal law, courts apply the "prisoner mailbox rule" to motions and proceedings filed by inmates. See Nobel v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). Perhaps not surprisingly, district courts have reached divergent conclusions as to whether the state commencement-by-filing rule or the federal mailbox rule should apply when a federal court is considering the timeliness of a Section 2254 petition. See Rosario v. Bennett, No. 01 Civ. 7142 (RMB), 2003 WL 151988, at *2 n. 3 (S.D.N.Y. Jan. 21, 2003) (collecting cases). There is no need to resolve this issue here because Cabrera's petition is untimely even under the more liberal federal rule.
Under the federal mailbox rule, Cabrera's Section 440.10 motion would be deemed filed on June 1, 2001. Accordingly, 328 days of the one-year limitations period would have expired by the filing date, leaving Cabrera only 37 days to file his petition. Cabrera's Section 440.10 motion was finally decided on March 11, 2003, at which point the limitations clock again began to run. Cabrera therefore only had until April 10, 2003, to file his petition. Nevertheless, Cabrera did not "file" his petition until June 4, 2003, some 85 days after his motion was decided. His petition consequently was filed beyond the limitations period, even if the Court applies the more forgiving federal mailbox rule.
Indeed, Cabrera's petition would be untimely even if this Court were to assume that the tolling period began on May 4, 2001, the date that appears on the face of the unsigned motion that Cabrera sent to the District Attorney, but failed to file with the Court. (See n. 2, supra).
B. Equitable Tolling
Equitable tolling permits a court to "extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996):accord Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). For equitable tolling to be applicable, a petitioner must show that "rare" or "extraordinary" circumstances made it "impossible to file [the] petition on time." Armand v. Strack, No. Cv. 98-6650 (RJD), 1999 WL 167720, at *3 (E.D.N.Y. Feb. 19, 1999) (citing Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998)). In addition, the petitioner "must have acted with reasonable diligence throughout the period he seeks to toll." Smith. 208 F.3d at 17 (citation omitted). Thus, the petitioner must show that extraordinary circumstances "prevented" him from filing on time. Anderson v. O'Gara, 01 Civ. 5712 (WHP), 2002 WL 1633917, at *4 (S.D.N.Y. July 23, 2002) (citing Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000)). In keeping with these requirements, equitable tolling should be invoked sparingly and not in cases involving "garden variety claims of excusable neglect." Irwin v. Dep't of Veterans Affairs. 498 U.S. 89, 96 (1990).
Cabrera has not set forth any reason why the doctrine of equitable tolling is applicable here. Instead, Cabrera simply asserts that his petition is timely because he "was exhausting his state remedies up [until] March 11, 2003." (Pet. ¶ 14). The key question, however, is whether Cabrera took steps to file his petition or was prevented from doing so after that date. Here, Cabrera has shown neither that extraordinary circumstances prevented the timely filing of his petition, nor that he acted with reasonable diligence. There consequently is no basis to apply equitable tolling in this case.
IV. Conclusion
For the foregoing reasons, the respondent's motion to dismiss the petition as untimely should be granted. Additionally, a certificate of appealability should not be issued because Cabrera has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).
VII. Notice of Procedure for Filing Of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the clerk of the Court, and send copies to the chambers of the Honorable Laura T. Swain, United States District Judge, United States Courthouse, 40 Centre Street, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Am. 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).