Opinion
6:22-CV-06416 EAW
2023-08-28
Thomas S. CLAYTON, Petitioner, v. Michael S. CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.
John Eliot Gutbezahl, John E. Gutbezahl LLC, Lake Oswego, OR, for Petitioner. Daniel Paul Hughes, Office of the New York Attorney General, New York, NY, Arlene Roces and Laura Lampert, for Respondent.
John Eliot Gutbezahl, John E. Gutbezahl LLC, Lake Oswego, OR, for Petitioner. Daniel Paul Hughes, Office of the New York Attorney General, New York, NY, Arlene Roces and Laura Lampert, for Respondent.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Petitioner Thomas S. Clayton ("Petitioner"), represented by attorney John E. Gutbezahl ("Mr. Gutbezahl"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in the custody of respondent Michael S. Capra, Superintendent of Sing Sing Correctional Facility ("Respondent"). Petitioner is incarcerated pursuant to a judgment entered against him on April 24, 2017, in the county court of Steuben County, New York (the "trial court"), for murder in the first degree. (Dkt. 1 at 14). Petitioner was sentenced to life in prison without parole. (Id.).
Petitioner was originally convicted of both murder in the first degree and murder in the second degree. On August 22, 2019, the Appellate Division, Fourth Department (the "Fourth Department") affirmed Petitioner's conviction for first degree murder, but it vacated his conviction for murder in the second degree, as it was a lesser included count on the indictment. People v. Clayton, 175 A.D.3d 963, 108 N.Y.S.3d 94 (4th Dep't 2019).
Presently pending before the Court is Respondent's motion to dismiss the Petition on timeliness grounds (Dkt. 16), as well as Petitioner's motion to amend the Petition (Dkt. 25). For the reasons discussed below, Mr. Gutbezahl is directed to arrange for another conflict-free attorney to respond to the portion of the motion to dismiss addressing equitable tolling based on attorney negligence. Mr. Gutbezahl is further directed to file a status update with the Court on or before October 2, 2023. In the interim, the case is hereby stayed.
BACKGROUND
Petitioner was convicted for his involvement in the murder of his wife, Kelley Clayton, on the evening of September 29, 2015. Clayton, 175 A.D.3d at 963-64, 108 N.Y.S.3d 94. Petitioner returned home from a poker game to find Ms. Clayton dead on the kitchen floor, and subsequent investigation led to the arrest of Petitioner's former tenant and employee, Michael Beard, who bludgeoned Ms. Clayton to death with a maul handle. Id.
Petitioner was charged with murder in the first degree on the ground that he "procured commission of the killing pursuant to an agreement" with Beard, to commit the killing "for the receipt, or in expectation of the receipt, of" a thing of "pecuniary value." Id. at 963, 108 N.Y.S.3d 94. Petitioner was convicted at trial, and the Fourth Department affirmed that conviction. Id.
PROCEDURAL HISTORY
Petitioner filed his Petition seeking a writ of habeas corpus on September 29, 2022. (Dkt. 1). Thereafter, on February 8, 2023, and after receiving extensions of time, Respondent filed a motion to dismiss the Petition on timeliness grounds. (Dkt. 16). Petitioner responded to the motion to dismiss on March 10, 2023 (Dkt. 19), and he also filed two supplemental responses to the motion to dismiss, including on April 14, 2023, and on May 30, 2023 (Dkt. 24; Dkt. 31). Petitioner also filed a motion to amend on April 14, 2023, seeking to amend the Petition to add newly discovered evidence to his actual innocence claim. (Dkt. 25). Respondent filed his response to Petitioner's motion to amend and in further support of his motion to dismiss on June 30, 2023. (Dkt. 34).
DISCUSSION
I. Timeliness of the Petition
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a § 2254 petition must be filed within one year of the date that the petitioner's state judgment became final. 28 U.S.C. § 2244(d)(1). However, certain state court collateral attacks on a judgment toll the one-year limitations period. Id. at (d)(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."). The state judgment becomes final "after the denial of certiorari [by the Supreme Court] or the expiration of time for seeking certiorari." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). In other words, a New York state judgment becomes final if no petition for writ of certiorari is filed within 90 days of the New York Court of Appeals' disposition.
Petitioner pursued a direct appeal to the Fourth Department, which affirmed his conviction for murder in the first degree on August 22, 2019. Clayton, 175 A.D.3d at 963, 108 N.Y.S.3d 94. Petitioner applied for leave to appeal to the New York State Court of Appeals, which was denied by the Fourth Department on November 7, 2019. (Dkt. 1-2 at 156). Petitioner did not seek a writ of certiorari from the United States Supreme Court. However, on November 2, 2020, Petitioner filed a counseled motion pursuant to New York Criminal Procedure Law ("NY CPL") § 440.10, to vacate his conviction. (Id. at 157-212). The trial court denied Petitioner's motion on March 29, 2021 (id. at 213), and on October 5, 2021, the Fourth Department denied Petitioner's application for leave to appeal (id. at 232).
Accordingly, the state court judgment became final 90 days after Petitioner's application for leave to appeal to the Court of Appeals was denied—on February 5, 2020—and his federal habeas petition was due one year later—on February 5, 2021. However, the AEDPA limitations period was tolled from November 2, 2020, when Petitioner filed his application pursuant to NY CPL § 440.10, until October 5, 2021, when the Fourth Department denied leave to appeal the trial court's denial of his NY CPL § 440.10 motion.
Petitioner's NY CPL § 440.10 motion did not "reset the date from which the one-year statute of limitations b[egan] to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ("We . . . hold that proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run."); see also Davis v. Lempke, 767 F. App'x 151, 152-53 (2d Cir. 2019). Rather, the limitations period simply ceased running while the motion was pending.
So the limitations period ran for 271 days from February 5, 2020, the date on which Petitioner's state conviction became final, through November 2, 2020, the date he filed his NY CPL § 440.10 motion. The limitations period was then tolled from November 2, 2020, through October 5, 2021, when the Fourth Department denied leave to appeal from the NY CPL § 440.10 order. At that point, 94 days remained to commence the habeas proceeding. However, another 359 days elapsed—from October 5, 2021, until September 29, 2022—before Petitioner filed the instant Petition. Accordingly, the habeas proceeding was filed 265 days late.
"For a post-conviction motion pursuant to CPL § 440 initially presented to the state court, the tolling ends when the Appellate Division denies leave to appeal." Yusuf v. Colvin, No. 18-CV-3360 (MKB), 2022 WL 4291784, at *6 (E.D.N.Y. Sept. 16, 2022) (citing Belot v. Burge, 490 F.3d 201, 204 (2d Cir. 2007)).
II. Petitioner's Arguments in Response to the Motion to Dismiss
Petitioner does not dispute Respondent's calculations with respect to the timeliness of the Petition. In fact, Mr. Gutbezahl admits that he did not properly calculate the statute of limitations. (See Dkt. 19 at 7; see also Dkt. 19-1). However, Petitioner advances several arguments as to why the Petition should not be dismissed as time barred.
First, Petitioner argues that he is "actually innocent" of the crime of conviction which, if proved, would allow him to overcome the procedural bar of the statute of limitations. (Dkt. 19 at 2-3). Specifically, Petitioner points to certain "newly discovered evidence," which he contends supports his claim of actual innocence, including findings regarding the reliability of the cellular location data evidence presented at trial, as well as a 20/20 interview given by Beard which aired in January 2023, denying Beard's involvement in the murder. (Id. at 3-6; see also Dkt. 24).
Further, Petitioner argues that he is entitled to equitable tolling of the AEDPA limitations period, including because Mr. Gutbezahl "failed [to] competently pursue this Petition by failing to apply the appropriate time limitation although counsel had that prior knowledge," i.e., that counsel erred when calculating the AEDPA limitations period. (Dkt. 19 at 6-7; see also Dkt. 19-1 at ¶¶ 15-20 (declaration of Mr. Gutbezahl, explaining that he miscalculated AEDPA statute of limitations)).
Finally, Petitioner contends that his ineffective assistance of trial counsel claim tolled the statute of limitations period. (Dkt. 19 at 7). Petitioner argues that his claim of ineffective assistance of his trial and appellate counsel is an integral part of his claim of actual innocence, that he could not raise these claims on his direct appeal, and the first time he could have raised these claims was in connection with his NY CPL § 440.10 motion. (Id.). Accordingly, Petitioner argues that the statute of limitations on his federal habeas petition did not begin to run until October 5, 2021, when the Fourth Department denied his application for leave to appeal. (Id. at 7-8).
The Court turns first to Petitioner's argument that he is entitled to equitable tolling based on Mr. Gutbezahl's mistake in calculating the AEDPA statute of limitations period. "In 'rare and exceptional' circumstances, AEDPA's one-year statute of limitations can be equitably tolled to permit the filing of an otherwise time-barred petition." Davis v. Lempke, 767 F. App'x 151, 153 (2d Cir. 2019) ("Davis II") (quoting Smith, 208 F.3d at 17); see also Harper v. Ercole, 648 F.3d 132, 136 (2d Cir. 2011) ("equitable tolling is warranted only in 'rare and exceptional circumstances' "). The doctrine of equitable tolling requires a petitioner to demonstrate: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quotations and citation omitted). "Courts must decide whether equitable tolling is applicable on a 'case-by-case basis,' while still being 'governed by rules and precedents' and 'draw[ing] upon decisions made in other similar cases for guidance.' " Davis II, 767 F. App'x at 153 (quoting Holland, 560 U.S. at 649-50, 130 S.Ct. 2549).
To demonstrate that "extraordinary circumstances" exist, a petitioner "must show something more than a 'garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline.' " Id. (quoting Holland, 560 U.S. at 651-52, 130 S.Ct. 2549). "Sufficiently 'severe' obstacles have included extraordinary attorney misconduct, the petitioner's mental illness or hospitalization, prolonged delay by a state court in sending notice of a ruling, and intentional obstruction by prison officials of an inmate's ability to file his petition." Smith v. Bell, No. 21-CV-03570 (DG), 2022 WL 2704508, at *4 (E.D.N.Y. July 12, 2022) (citation omitted).
"Attorney error generally does not rise to the level of an 'extraordinary circumstance.' " Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015). "Circumstances based on attorney negligence 'must be so egregious as to amount to an effective abandonment of the attorney-client relationship.' " Davis II, 767 F. App'x at 153 (quoting Rivas v. Fischer, 687 F.3d 514, 538 (2d Cir. 2012)); see also Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir. 2003) (attorney's failure to file federal habeas petition, as directed by client, constituted "extraordinary circumstances"); Vasquez v. United States, 733 F. Supp. 2d 452, 456 (S.D.N.Y. 2010) ("A lack of responsiveness by counsel to Petitioner's communications can, in certain circumstances, be considered an extraordinary circumstance."). The Second Circuit has concluded that an attorney's mistake in calculating the filing deadline for the petitioner's habeas petition, which was based on counsel's belief that the one-year limitation period restarted (as opposed to being tolled) after the petitioner's coram nobis petition was resolved, did not satisfy the requisite "extraordinary circumstances" required to obtain equitable tolling. Davis II, 767 F. App'x at 153.
Mr. Gutbezahl states that he was contacted by Petitioner's family in April 2020, after Petitioner's direct appeals were concluded, and he was "officially retained" in June 2020. (Dkt. 19-1 at ¶ 2). Mr. Gutbezahl remains Petitioner's attorney at this juncture, including with respect to responding to the motion to dismiss filed by Respondent, which raises Mr. Gutbezahl's own negligence in failing to timely file the Petition.
Although neither party has raised the issue of any conflict of interest with respect to Mr. Gutbezhal's continued representation of Petitioner, the Court has " 'an independent interest' in ensuring compliance with professional ethical standards and the appearance of fairness." Davis v. Lempke, 642 F. App'x 31, 32 (2d Cir. 2016) ("Davis I") (citation omitted). For the reasons explained below, the Court finds that Mr. Gutbezahl—in having to argue that his conduct was so egregious as to amount to an effective abandonment of the attorney-client relationship—has a conflict of interest in opposing Respondent's motion to dismiss on this basis, and his involvement "necessarily calls into question the integrity of these proceedings." Id. at 34 & n.1 (vacating the order of the district court dismissing a petition on timeliness grounds, and remanding the case for a hearing on whether a conflict of interest may have tainted the habeas corpus proceedings). In Davis I, the petitioner's attorney conceded that the petition was not timely, but argued that he was entitled to equitable tolling because he miscalculated the filing date. Id. at 32. The Second Circuit found that the attorney was disqualified from representing Petitioner on appeal. Id. at 34. See also Nassiri v. Mackie, 967 F.3d 544, 545, 547 (6th Cir. 2020) (vacating judgment of district court and remanding to allow the petitioner "an opportunity to develop and present his equitable tolling argument anew, while represented by unconflicted counsel," and noting that "[t]he Supreme Court has repeatedly expressed concern about attorneys presenting arguments regarding their own misconduct").
In fact, in Davis I, the petitioner's original attorney, recognizing his conflict of interest, arranged for another attorney to present the equitable tolling argument before the district court, see Davis I, 642 F. App'x at 33—a step which Mr. Gutbezahl has not taken in this case. The Second Circuit remanded the case for a hearing because, at some point after the petition was filed, the original attorney became "of counsel" to the other attorney's law firm, and there arose the possibility that the original attorney's conflict was imputed to others in the law firm. Id.
Similarly, in this case, Mr. Gutbezahl—although advancing other arguments of an equitable nature as to why Petitioner should be permitted to pursue the petition at this juncture—also concedes that he made an error in calculating the filing deadline. In opposing the motion to dismiss on timeliness grounds, Mr. Gutbezahl acknowledges that equitable tolling can be based on extraordinary negligence by an attorney. (Dkt. 19-1 at ¶ 15). He admits that, in this case, he is "guilty of such extraordinary negligence," and with respect to the time calculation, that he "abandoned Mr. Clayton's cause." (Id. at ¶¶ 15, 17). Mr. Gutbezahl does not offer any specific explanation as to why he failed to timely file the Petition; rather, he notes that he has properly calculated filing deadlines for habeas corpus cases in the past, and that he "do[es] not know how [he] made a time calculation mistake" in this case. (Id. at ¶¶ 15-16). Mr. Gutbezahl offers "not as an excuse but as circumstance," that the case is extremely complex, that between 2019 and October 2021, he was dealing with the mental and physical decline of his parents which required him to travel to New York, and also that he was recently diagnosed with sleep apnea, which has affected his focus and time management. (Id. at ¶ 18). The lack of specificity as to how or why Mr. Gutbezahl missed the filing deadline also supports that another attorney should assist Petitioner in making an argument in support of equitable tolling.
Mr. Gutbezahl states in his declaration that he has discussed his error with Petitioner, who has "expressed confidence and has requested that [Mr. Gutbezahl] remain on his case." (Id. at ¶ 19). However, as explained above, the Court has an independent interest in ensuring compliance with ethical standards and maintaining the appearance of fairness, and "courts and state ethics committees have suggested that conflicts like [counsel's] are unwaivable." Davis I, 642 F. App'x at 33 n.1 (citing N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 973 (2013)) and United States v. Fulton, 5 F.3d 605, 613 (2d Cir. 1993) (suggesting that an attorney's desire to avoid reputational damage may create an unwaivable conflict in some circumstances)).
The time and effort that Mr. Gutbezahl has spent both investigating new leads and preparing the Petition in this case is apparent to the Court—in other words, "nothing about [his] performance suggests that his advocacy before [the court] has been anything but zealous," Davis I, 642 F. App'x at 32, and Mr. Gutbezahl states that he believes the Petition has merit (Dkt. 19-1 at ¶ 20). However, " '[a] lawyer's good faith' in his ability to represent a client is 'an inadequate safeguard when standing alone.' " Davis I, 642 F. App'x at 33 (quoting Ernie Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973)).
CONCLUSION
For the foregoing reasons, the Court concludes that Mr. Gutbezahl cannot represent Petitioner in pursuing any argument based on equitable tolling, and Petitioner should be afforded an adequate opportunity to develop and present this argument. Mr. Gutbezahl is directed to arrange for a conflict-free attorney to address this argument, and he shall file a written status update on the status of counsel on or before October 2, 2023. In the interim, while the attorney conflict issue is being resolved, the case is hereby stayed until further order of the Court.
SO ORDERED.