Opinion
02 Civ. 6123 (HB)
September 10, 2003
OPINION ORDER
Derrick Caldwell ("petitioner") brings this habeas petition pursuant to 28 U.S.C. § 2254 to challenge the lawfulness of his conviction from 1988. Petitioner alleges that he is actually innocent and that he was denied due process of law because the prosecutor failed to disclose Rosario and Brady material; denied effective assistance of trial counsel; not properly advised of the charges against him; and adjudicated a second felony offender without regard to the lawfulness of his prior conviction. Magistrate Judge Theodore Katz recommended in his Report and Recommendation ("R R") that the Court deny the petition for a writ of habeas corpus because it is time-barred. Caldwell timely filed his objections to Magistrate Judge Katz's R R. For the following reasons, the petition is dismissed and the R R affirmed.
I. BACKGROUND
On May 1, 1988, a police officer observed petitioner distract a pedestrian when he stopped walking momentarily, which allowed his alleged accomplice, Tyrone Fredericks, to remove a wallet from the pedestrian's handbag. The wallet was later found in Frederick's pants pocket. Petitioner was convicted on a charge of grand larceny in the fourth degree, N.Y. Penal Law § 155.30, in New York Supreme Court, New York County. On November 17, 1988, petitioner was sentenced to a term of imprisonment of 2 to 4 years as a second felony offender. Petitioner's counsel unfortunately filed the notice of appeal to the conviction late. After petitioner was released and on parole, he committed another crime. A jury convicted him of criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, which resulted in a sentence of fifteen to thirty years imprisonment People v. Caldwell, 215 A.D.2d 681 (2d Dep't 1995).
In 2001, petitioner sought information in regard to the status of his initial appeal, which his counsel had filed out of time over twelve years before. The Deputy Clerk of the Appellate Division informed petitioner of the problem and instructed him to bring a motion pursuant to New York Criminal Procedure Law § 460.30, for leave to file a late notice of appeal. On May 15, 2001, petitioner filed a motion to vacate his conviction from 1988, pursuant to New York Criminal Procedure Law § 440.10. In his § 440.10 motion, petitioner asserted the same claims as in the habeas petition before me. On September 26, 2001, the motion was denied on the merits and on the ground that it was untimely. On October 15, 2001, petitioner filed an application for leave to file a late notice of appeal from the 1988 conviction. The New York Court of Appeals denied his application on February 1, 2002. Petitioner then appealed the denial of his § 440.10 motion, and leave to appeal was denied on March 19, 2002. People v. Caldwell, 2002 N.Y. App. Div. LEXIS 3121 (1st Dep't Mar. 19, 2002). On May 30, 2002, petitioner filed his § 2254 habeas petition in this Court. Petitioner does not deny that his petition is untimely. He contends extenuating circumstances warrant equitable tolling.
II. DISCUSSION
A. Standard of Review
Under 28 U.S.C. § 2254, federal courts have limited power to review criminal convictions from state courts. Section 2254(d) provides,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254. Further, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting a habeas review, federal courts are limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Pursuant to the Federal Rules of Civil Procedure, a district court reviews de novo the portion of the magistrate judge's R R to which specific written objection has been made. Fed.R.Civ.P. 72(b).
B. Petitioner's Objections
The Antiterrorism and Effective Death Penalty Act ("AEDPA") requires that habeas corpus petitions challenging a state court judgments be filed within one year of the date that the judgment became final. Prisoners whose convictions became final before the effective date of the AEDPA, April 24, 1996, were given a 1 year grace period from the statute's effective date in which to file their petitions — i.e., until April 24, 1997. See Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000).
Section 2244(d)(1) provides:
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 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. § 2254(d)(1).
Here, the sentence for the challenged conviction was imposed on November 17, 1988, which gave petitioner 30 days from that date, pursuant to N.Y. Crim. Pro. Law § 460.10(1)(a), to file a notice of appeal. Petitioner's counsel failed to do so within the prescribed time and petitioner's conviction therefore became final well before the enactment of the AEDPA. He therefore had until April 24, 1997 to file his § 2254 habeas petition. The AEDPA's one-year limitations period is not jurisdictional and is subject to equitable tolling in "rare and exceptional circumstances." Smith, 208 F.3d at 17. To show that equitable tolling is proper, petitioner ordinarily must demonstrate that: (1) "extraordinary circumstances prevented him from filing his petition on time"; and (2) he "acted with reasonable diligence throughout the period he seeks to toll." Id. Extraordinary circumstances cannot be demonstrated if the petitioner, acting with reasonable diligence, could have timely filed his petition despite the alleged "extraordinary circumstance." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
Section 460.10(1)(a) states in relevant part:
A party seeking to appeal from a judgment or a sentence . . . must, within thirty days after imposition of the sentence . . . file with the clerk of the criminal court in which such sentence was imposed . . ., stating that such party appeals therefrom to a designated appellate court.
In petitioner's habeas,, he argues that he was actually innocent of the criminal conviction from 1988, and thus constitutional considerations dictate that this Court equitably toll the limitations period. It remains an open question whether the AEDPA's statute of limitation may bar collateral review of a prisoner's habeas petition when he claims actual innocence. Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). In addressing this issue, the Second Circuit advised that district courts should consider the following questions sequentially:
(1) Did petitioner pursue his actual innocence claim with reasonable diligence?
(2) If petitioner did not pursue his claim with reasonable diligence, must an actual innocence claim be pursued with reasonable diligence in order to raise the issue of whether Constitution requires an "actual innocence" exception to the AEDPA statute of limitations?
(3) If petitioner did pursue the claim with reasonable diligence or if reasonable diligence is unnecessary, does petitioner make a credible claim of actual innocence?
(4) If petitioner does make a credible claim of actual innocence, does the United States Constitution require an "actual innocence" exception to the AEDPA statute of limitations?Id. at 225-26. In view of the twelve years that elapsed before petitioner began to try and show his actual innocence, the R R concluded that petitioner failed to pursue his claim with reasonable diligence. In petitioner's objection to the Court, petitioner contends that neither his trial counsel from 1988 nor the State notified him that his appeal was untimely, and he implies that he would have timely filed his petition had he been informed. Petitioner submits no evidence to show that he diligently pursued his actual innocence claim in the period between the time the appeal was filed and his inquiry into the appeal status in 2001. While I might understand petitioner's initial delay in pursuing his claim of innocence because of a belief there was a pending appeal, it is beyond peradventure that a truly innocent person would wait over a decade before inquiring into the status of his appeal. Although it appears petitioner began diligently attempting to pursue his claim of innocence in 2001, he fails to adequately explain what interfered with his diligence in the intervening twelve years. Petitioner professes that he is uneducated and does not understand the law, has a psychiatric disorder, and suffered a head injury during an arrest in 1991. Obj. at 4. Petitioner further notes that he underwent psychiatric counseling three years ago. Id. Even under the most lenient view of these alleged facts, I cannot agree with petitioner that he has diligently pursued his actual innocence claim. Accordingly, petitioner cannot meet the first prong of the test in Whitley to demonstrate that this Court should consider his actual innocence claim despite its untimeliness. Whitley, 317 F.3d at 225-26.
Even if I indulged petitioner and assumed that he diligently pursued his actual innocence claim to the best of his ability, I would agree with Judge Katz that petitioner has not made a credible claim of actual innocence. Petitioner posits that his defense counsel was ineffective. I have no dispute with his claim that his defense counsel plainly ineffectively represented him on appeal. But that claim, without more, does nothing to bolster his actual innocence claim. Schlup v. Delo, 513 U.S. 298, 316 (1995) ("Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim."); Baity v. Mazzuca, 2002 WL 31082954, at *4 (S.D.N.Y. Sept. 17, 2002).
Petitioner further contends that the prosecutor withheld from him the felony complaint, which he characterizes as "newly discovered information, because it was never disclosed." Obj. at 5. Petitioner asserts that the felony complaint contains information that could have been used to cross-examine the arresting officer and attack his credibility. The R R correctly notes, however, that the state court found, in response to petitioner's § 440.10 motion, that the People had provided a copy of the felony complaint to him. See Sept. 26, 2001 Decision. To the extent that a habeas petition challenges factual findings, § 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Petitioner fails to show clear and convincing evidence, and indeed he has shown no evidence, to demonstrate that the state court erroneously determined that he had, in fact, received a copy of the felony complaint. Accordingly, on the basis of the state court finding, I could conclude that petitioner has presented no "new reliable evidence" on which petitioner could rely to support his actual innocence claim. Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) ("To demonstrate actual innocence in a so-called collateral proceeding, a petitioner must present new reliable evidence that was not presented at trial and show that it was more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.").
In any event, assuming I further indulged the petitioner and treated the felony complaint as "new reliable evidence," I would still conclude that petitioner has not made a credible claim of actual innocence. In support of his contention, petitioner writes:
The Felony Complaint states that the Petitioner brushed or physically obstructed the victim[']s path. Aside from physically touching the victim, it states that the petitioner caused the victim to stop momentarily, allowing a second person to take the victim[']s property.
Obj. at 6. According to petitioner, the police officer, who observed petitioner at the scene of the crime, testified that he saw petitioner walking in front of the victim, setting the pace for the people behind him. Pet. Suppl. Mem. at 13; Obj. at 6-7. Petitioner contends that he was merely "walking with other pedestrians, who were also setting the pace," which he deems is consistent with innocent conduct, particularly given that he was in a "crowded shopping district and busy walkway." Id. In his supplemental memorandum, petition further contends that the felony complaint "could have been used as a potent source for cross-examination" to show an inconsistency with the proffered testimony. In the felony complaint, the officer affirmed that:
[D]efendant Caldwell brushed his left shoulder against [the victim's] right shoulder and partially blocked [the victim's] path, thereby distracting and causing [the victim] to stop walking momentarily and enabling defendant Fredericks to steal the wallet.
Pet. Exh. C. At the outset, both the testimony and the felony complaint establish that petitioner momentarily stopped walking while in front of the victim, which allowed his purported accomplice to snatch the wallet from the victim's handbag. To make a "credible" claim of actual innocence, petitioner "must show `it is more likely than not that no reasonable juror would have convicted him in light of the new evidence' presented in his habeas petition." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). I agree with the Judge Katz that any discrepancy in the description of the theft does not come close to the showing required to demonstrate petitioner has made a credible claim of actual innocence. Accordingly, since petitioner cannot show a miscarriage of justice that would warrant reaching the merits of his time-barred claims, I may not and do not reach his constitutional claims, such as the ineffective assistance of counsel and withholding of evidence by the prosecution. Schlup, 513 U.S. at 316 (showing of innocence by petitioner must be so strong as to undermine confidence in the result of the trial and require review of the merits of the constitutional claims).
III. CONCLUSION
For the foregoing reasons, petitioner has failed to make a sufficient showing of actual innocence, and his petition is time-barred. Accordingly, the petition is dismissed. I also agree with the R R that petitioner has not made a substantial showing of the denial of a constitutional right, and hence no certificate of appealability will issue. This Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal taken from this Order would not be taken in good faith. The R R is adopted in its entirety. The Clerk of the Court is instructed to close this case and remove it from my docket.
SO ORDERED.