Opinion
01-CV-1252 (JBW) and 03-MISC-0066 (JBW)
August 12, 2003
JUDGMENT AND ORDER
For the reasons discussed in this memorandum, the petition for a writ of habeas corpus is dismissed as time-barred.
Petitioner was convicted of a series of cocaine sales over a period of six months, the last for over two pounds. Sales were made to undercover agents. He claimed entrapment, but had a long history of involvement in the drug trade.
He makes various claims about the charge, the summation, admission of evidence of prior criminal conduct, and admissibility of wiretap evidence. None have any merit on constitutional grounds or are barred. There is no issue of innocence and evidence of guilt was overwhelming.
I. Law
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
In calculating the one-year limitation period, 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." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
In addition, the term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Id. at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
The AEDPA statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . ., is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
II. Application
Petitioner was convicted by a jury of various narcotics charges and was sentenced on July 7, 1992. His conviction was affirmed by the Appellate Division on February 13, 1996. Leave to appeal was denied by the New York Court of Appeals on July 16, 1996. Because he did not seek a writ of certiorari in the Supreme Court, his conviction became final 90 days later, on October 14, 1996. His habeas application was due one year later, on October 14, 1997. The instant habeas application was filed on February 5, 2001. Absent statutory or equitable tolling, the petition is out of time by 1210 days.
Petitioner filed his initial habeas application on July 3, 1997, which was 262 days after his conviction became final. During that period the AEDPA limitations period was running. On December 30, 1997, the application was dismissed without prejudice at petitioner's request to allow him to exhaust his state remedies. The federal habeas application was pending for a total of 180 days.
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith, 208 F.3d at 17. As Justice Stevens noted in his concurring opinion in Duncan,
[N]either the Court's narrow holding, nor anything in the text or legislative history of AEDPA, precludes a federal court from deeming the limitations period tolled for [a first habeas] petition as a matter of equity. The Court's opinion does not address a federal court's ability to toll the limitations period apart from § 2244(d)(2). Furthermore, a federal court might very well conclude that tolling is appropriate based on the reasonable belief that Congress could not have intended to bar federal habeas review for petitioners who invoke the court's jurisdiction within the 1-year interval prescribed by AEDPA.533 U.S. at 183 (Stevens, J., concurring in part and in the judgment) (citation omitted). Heeding Justice Stevens' advice, the Second Circuit has indicated that tolling would be manifestly appropriate for an out-of-time petition where the petitioner has with diligence brought his federal habeas petition, moved to have the petition dismissed without prejudice in order to fully exhaust state remedies, proceeded to exhaust his claims in state court, and thereupon renewed his habeas petition. Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir. 2002).
Pursuant to Rodriguez, this court will equitably toll the entire 180-day period during which petitioner's initial habeas application was pending in federal court. Once the application was dismissed, petitioner had 103 days remaining in the AEDPA limitations period.
Petitioner then waited until October 18, 2000, which was 1023 days, to initiate coram nobis proceedings before the Appellate Division. None of that time was tolled by statute. Petitioner's coram nobis application was denied by the Appellate Division on February 5, 2001. The AEDPA limitations period was tolled by statute during the 110 days that the coram nobis application was pending.
The instant application for a writ of habeas corpus, as noted earlier, was filed on February 5, 2000.
Absent further equitable tolling, the application is out of time by 920 days.
Petitioner urges that his petition be deemed timely because "no explicit conditions were given as to how long [he] had to go to state court" after his motion to hold the case in abeyance was granted. Petitioner's Reply to Respondent's Opposition for a Writ of Habeas Corpus at 11. Petitioner contends, in sum, that his "current pleading relates back" to his initial filing. Id. The Court of Appeals for the Second Circuit has rejected this argument, explaining clearly that a state prisoner cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine and seeking to treat a new petition as having been filed on the same day as a first petition:
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.
Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999)). The situation in the instant case is precisely that discussed in Warren.
Petitioner was not prevented from filing his petition by any State action in violation of the Constitution, he asserts no constitutional right newly recognized by the Supreme Court, and none of his claims rely on facts that could not have been discovered in a timely manner through the exercise of due diligence. See 28 U.S.C. § 2254(d)(1)(B)-(D).
Petitioner does not make a colorable claim that he is actually innocent of the crime and that the time bar should therefore be waived. In addition, there appears to be no merit to his claims, all of which have been previously denied by the state courts. Evidence that petitioner repeatedly sold tens of thousands of dollars worth of narcotics to undercover police officers was overwhelming.
III. Conclusion
The petition for a writ of habeas corpus is dismissed as time-barred. It lacks merit and is frivolous as to any possible unexhausted claims. It is dismissed on the merits as well as on timebar.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.