Opinion
No. 05 Civ. 504 (PAC).
June 26, 2006
MEMORANDUM DECISION AND ORDER
INTRODUCTION
Thirteen years, one month, and nine days after his conviction and sentence in September, 1991 for murder in the second degree (two counts), kidnapping in the first degree, kidnapping in the second degree, and attempted murder in the second degree, Thomas Cross, a pro se petitioner ("Petitioner"), seeks a writ of habeas corpus under 28 U.S.C. § 2254. Cross originally filed the petition on October 26, 2004 in the Northern District of New York. Upon an order from Chief Judge Michael B. Mukasey, Cross filed an amended petition February 1, 2005. Chief Judge Mukasey assigned the case to District Judge Gerard E. Lynch and then it was reassigned to this Court on August 1, 2005. Respondent Michael P. McGinnis ("Respondent") has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the petition as barred by the applicable statute of limitations. The Court grants this motion for the reasons discussed below.
PROCEDURAL BACKGROUND
A. Conviction and Direct AppealCross was convicted, after a jury trial, of two counts of intentional murder in the second degree, attempted murder in the second degree, felony murder in the second degree, and kidnapping in the first and second degrees on September 17, 1991. People v. Cross, 602 N.Y.S.2d 864 (1st Dep't 1993). The trial judge sentenced him to consecutive indeterminate terms of from twenty-five years to life imprisonment for two of the second-degree murder convictions and eight and one-third to twenty-five years for the attempted murder conviction, to run concurrently with concurrent indeterminate terms of from twenty-five years to life for the felony murder conviction and first-degree kidnapping conviction and eight and one-third to twenty-five years for the second-degree kidnapping conviction.Id.
Cross, through assigned counsel, appealed and on October 28, 1993, the Appellate Division, First Department, unanimously affirmed petitioner's judgment of conviction. Id. On January 24, 1994, the New York Court of Appeals denied leave to appeal to that court. People v. Cross, 82 N.Y.2d 923 (1994).
B. Petitioner's Claims in Connection with Untimely Filing of Petition
Cross makes numerous claims in support of his opposition to Respondent's motion to dismiss, which are summarized below.
On January 31, 1997, Cross was placed in solitary confinement. (Amended Petition, filed Oct. 17, 2005 (Docket #11) ("Am. Pet."), at 3; id. (Ex. A at 1-2).) Correction officers took his property, including trial transcripts from his 1991 conviction, and placed it in storage pursuant to Attica facility policy. (Id. at 3.) During his five-month confinement, Cross was unsuccessful in his attempts to get his papers back or to get copies of the voir dire minutes. (Id.) On April 16, 1997, Cross was transferred from solitary confinement to a keep-lock facility. (Id.) He was released from keep-lock on May 30, 1997. (Id.)
Cross claims that from June 2, 1997 to July 25, 1997 he was denied access to the law library. (Id.) After a fighting incident with correction officers on July 25, 1997, Cross was returned to solitary confinement until August 26, 1997. (Id.;id. (Ex. A at 2).) He claims that he was seriously injured in this incident and sustained a broken nose, swollen eyes, blurred vision, and head trauma. (Id. at 3.) Cross was placed in administrative segregation confinement, following an investigation, on September 4, 1997. (Id. at 4; id. (Ex. A at 2).) Sometime later that month, a correction officer informed Cross that his property was lost. (Id. at 4.) On October 1, 1997, Cross's appellate lawyer responded to a letter from Cross that he did not have the voir dire minutes. (Id. at 4; id. (Ex. E).)
Cross was released from administrative segregation on May 6, 1998. (Id. at 5; id. (Ex. A at 2).) He then tried to get portions of his legal papers from the Bronx District Attorney's Office. (Id. at 5; id. (Ex. G).) On April 22, 1999 he petitioned the Bronx County Court to compel the District Attorney's Office to produce the papers and was denied. (Id. at 5; Amended Petition, filed Sept. 29, 2005 (Docket #10) ("Am. Pet. Sept. 29, 2006") (Ex. H)).)
Petitioner filed multiple submissions, including two filings denominated as "Motions to Amend Petition," which are substantially similar (Docket #10 #11).
Between December 26, 2001 and July 17, 2002, when Cross was returned to solitary confinement, he again claims that he was denied adequate access to law library materials and assistance. (Am. Pet. at 5.)
C. Collateral Review
According to Respondent's Affidavit in support of its motion to dismiss ("Respt.'s Aff."), Petitioner moved on December 27, 1999 in Supreme Court, Bronx County, to vacate the judgment against him pursuant to New York Criminal Procedure Law ("CPL") § 440.10. (Respt.'s Aff. Ex. 3; see also Am. Pet. at 5-6.) On May 11, 2000, the court denied Cross's motion, holding that there were no substantive issues raised that would require further consideration of the requested relief. (Respt.'s Aff. Ex. 4.) Cross appealed, but the Appellate Division (First Department) denied his application pursuant to New York Criminal Procedure Law § 460.15. (Respt.'s Aff. Ex. 5.)
In addition, petitioner filed motion papers dated July 23, 2003 with the Appellate Division for a writ of error coram nobis. (Petr.'s Am. Pet. at 6; Respt.'s Aff. at 6.) The Appellate Division, on June 24, 2004, denied the application for a writ of error coram nobis. People v. Cross, 780 N.Y.S.2d 105 (1st Dep't 2004). On September 24, 2004, the New York State Court of Appeals denied Cross's application for leave to appeal to that court. People v. Cross, 3 N.Y.3d 704 (2004).
D. Federal Habeas Petition
Cross filed for a writ of habeas corpus on October 26, 2004. He argues that: (a) he was denied his constitutional right to be present during a side-bar conference at the voir dire proceedings; (b) the prosecutor did not have a race-neutral reason for striking several black jurors; and, (c) he received ineffective assistance of counsel. On August 22, 2005, Respondent moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss this action.
DISCUSSION
A. Motion to Dismiss
This Court has the authority to grant Respondent's Rule 12(b)(6) motion. Federal Rule of Civil Procedure 81(a)(2) permits the application of the Federal Rules of Civil Procedure to habeas proceedings "to the extent that the practice in such proceedings is not set forth in . . . the Rules governing Section 2254 Cases." Courts in this District have found Rule 12(b)(6) motions to be permissible in proceedings commenced under 28 U.S.C. § 2254. Foster v. Phillips, No. 03 CIV 3629, 2005 WL 2978686, at *3 (S.D.N.Y. Nov. 7, 2005); see also Williams v. Breslin, 274 F. Supp. 2d 421, 424-25 (S.D.N.Y. 2003) ("Motions to dismiss habeas petitions on procedural grounds pursuant to Rule 12(b)(6) are not inconsistent with the Habeas Rules, given the wide discretion afforded district judges in the disposition of habeas petitions." (citation omitted)).
B. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-13, 110 Stat. 1214 ("AEDPA"), amended the federal habeas statute to require a petitioner seeking habeas corpus to file his application within a one-year limitations period and provides four alternative starting dates at which the statute of limitations begins to run:
(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. § 2244(d)(1).
One of the central purposes of AEDPA was to provide finality to state convictions. Walker v. Artuz, 208 F.3d 357, 361 (2d Cir. 2000), rev'd on other grounds, Duncan v. Walker, 533 U.S. 167, 182 (2001) ("[AEDPA] was Congress' primary vehicle for streamlining the habeas review process and lending finality to state convictions."). The Second Circuit inAcosta v. Artuz observed,
The AEDPA statute of limitations promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time. Like other procedural bars to habeas review of state courts judgments, the statute of limitation implicates the interests of both the federal and state courts, as well as the interests of society. . . .221 F.3d 117, 123 (2d Cir. 2000).
C. Timeliness of Petition
The Second Circuit held that prisoners whose convictions became final prior to the effective date of AEDPA should be "accorded a period of one year after the effective date of AEDPA in which to file a first § 2254 petition. . . ." Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Petitioner's conviction became final on April 24, 1994, ninety days after his appeal to the New York Court of Appeals was denied. Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000). Because Petitioner's conviction became final prior to the effective date of AEDPA, he had until April 24, 1997 to file his application for habeas corpus. Petitioner did not file his application for habeas corpus until October 26, 2004, more than seven-and-a-half years after his final conviction.
Petitioner makes several arguments why his petition is not time-barred. The Court construes liberally pro se petitioners' submissions. See, e.g., Chang v. United States, 250 F.3d 79, 86 n. 2 (2d Cir. 2001) (applying "a liberal standard of interpretation to pro se pleadings"); Williams v. Breslin, 274 F. Supp. 2d at 425 ("Because [petitioner] is proceeding pro se, his Petition must be . . . interpreted to raise the strongest arguments that it suggest[s]." (citation and internal quotation marks omitted)). Thus, the Court gives broad and liberal reading to Petitioner's arguments. Cross contends that this Court should apply equitable tolling because Respondent prevented him from filing his petition and that he was required to exhaust all state remedies before this Court had jurisdiction.
1. Equitable Tolling
A court may equitably toll the AEDPA grace period when the petitioner shows that "extraordinary circumstances prevented him from filing his petition on time." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citation omitted). Furthermore, "the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id. (citation omitted). The petitioner must show a causal relationship between the extraordinary circumstances and the lateness of his filing. Valverde, 224 F.3d at 134 ("The word `prevent' requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." (citations omitted)). Given the seven-and-a-half years which Cross seeks to toll, his burden to show that the circumstances were indeed extraordinary and that he acted with reasonable diligence throughout this period is extremely high. Mateos v. West, 357 F. Supp. 2d 572, 577 (E.D.N.Y. 2005) ("As the petitioner seeks to equitably toll 1318 days of the limitations period, the petitioner's burden to demonstrate he acted with reasonable diligence throughout this entire period is particularly high.").
Cross advances three arguments for equitable tolling: first, that he was placed in solitary confinement with a condition of restricted access to his legal papers and, subsequently, that his papers were lost; second, that he was denied access to and assistance at the law library; and, third, that he sustained injuries in an altercation with prison correction officers.
Solitary Confinement and Resulting Confiscation of Legal Papers. Cross's argument that his time in solitary confinement, from January 31, 1997 until June 2, 1997, should be tolled is without merit. Solitary confinement and the restrictions associated with it are not an extraordinary circumstance. See, e.g., Warren v. Kelly, 207 F. Supp. 2d 6, 10 (E.D.N.Y. 2002) ("Transfers between prison facilities, solitary confinement, [and] lockdowns . . . do not qualify as extraordinary circumstances." (citations omitted)); Hizbullahankhamon v. Walker, 105 F. Supp. 2d 339, 344 (S.D.N.Y. 2000), aff'd, 255 F.3d 65 (2d Cir. 2001) ("While solitary confinement does present an obstacle to filing a timely habeas petition, it does not qualify as an extraordinary circumstance."); Asencio v. Senkowski, No. 00 Civ. 6418, 2000 WL 1760908, at *2 n. 4 (S.D.N.Y. Nov. 30, 2000) (holding that solitary confinement does not qualify as extraordinary circumstance). Cross's confinement is not an extraordinary circumstance, and his restricted access to legal papers during that period does not warrant tolling since "[h]ardships associated with prison conditions do not constitute the rare circumstances under which equitable tolling is granted."Asencio, 2000 WL 1760908, at *2; see also Warren v. Kelly, 207 F. Supp. at 10 ("[A]n inability to secure court documents do[es] not qualify as extraordinary circumstances."). Moreover, as is discussed in greater detail below, Cross did not act with reasonable diligence in filing his habeas corpus petition and tolling in such a circumstance would reward an exceedingly dilatory approach to the federal habeas filing requirements. Loss of Legal Papers. Cross claims that his papers were taken again on July 25, 1997, when he was returned to solitary confinement, and then lost. The negligent loss of legal papers by prison officials also does not constitute an extraordinary circumstance. Paul v. Conway, No. 04 Civ. 9493, 2005 WL 914384, at *6 (S.D.N.Y. Apr. 19, 2005) (ruling that negligent loss of legal papers does not entitle petitioner to equitable tolling) (citing Cox v. Edwards, No. 02 Civ. 7067, 2003 WL 22221059, at *3 (S.D.N.Y. Sept. 26, 2003) and Agramonte v. Walsh, No. 00 Civ. 892, 2002 WL 1364086, at *1 (E.D.N.Y. June 20, 2002)).
Even if the Court were to toll the eighty-three days that Cross was in solitary confinement without his legal papers, his additional arguments for tolling are less convincing and would not come close to explaining the additional 855 days that passed before he filed his CPL § 440.10 motion on December 27, 1999 or the additional 2,620 days that passed before he filed this habeas corpus petition on October 26, 2004. Additionally, Cross's argument that he required his legal papers to file his habeas corpus petition is even less helpful to him the second time around because he had fifty-three days to review these documents between his release from keep-lock and return to solitary confinement.
This case is distinguishable from that of Valverde v. Stinson, where the Second Circuit held that the intentional confiscation of a petitioner's habeas application constituted an extraordinary circumstance warranting tolling of the statute of limitations. 224 F.3d at 133-35. There are different facts here. Cross does not allege an intentional confiscation and the legal papers at issue do not involve a habeas petition itself. Prison officials took Cross's papers because it was a condition of his solitary confinement; confiscated papers included trial transcripts and voir dire minutes. The relevance of a confiscated petition speaks for itself; but Cross cannot show how the missing voir dire minutes prevented him from timely filing his petition. The Court notes that the petitioner in Valverde prepared his confiscated hand-written habeas corpus petition no more than a month prior to the filing deadline and submitted the second petition only twelve days after the deadline had passed. 224 F.3d at 135. Cross, by contrast, waited years before filing his habeas petition.
Failure to Obtain Copies of Lost Papers After Claimed Efforts. Cross contends that he made numerous written requests to have the voir dire minutes returned to him during his time in solitary confinement and to obtain copies after their loss. He fails to show, however, how not having the voir dire minutes from his trial prevented him from filing his petition on time. Unsuccessful attempts to "obtain legal documents from one's state trial do not equitably toll the statutory period." Lewis v. Walsh, No. 03 Civ. 1932, 2003 WL 21729840, at *2 (S.D.N.Y. July 25, 2003) (citations omitted). As stated by Judge Haight in Padilla v. United States,
Even if [Petitioner] did not have all the necessary materials or experienced a delay in obtaining them, those are not extraordinary circumstances warranting equitable tolling. Moreover, even if the delays in receiving whatever documents he believed necessary could be considered extraordinary, [Petitioner] has not shown that he made any effort to file his petition without them. . . . In short, [Petitioner] has failed to demonstrate that he was reasonably diligent in attempting to file his petition despite the purported delays in obtaining the materials.
No. 02 Civ. 1142, 2002 WL 31571733, at *4 (S.D.N.Y. Nov. 19, 2002).
Restricted Access to the Prison Law Library and Law Library Personnel. Cross's limited access to the library from June 2, 1997 to July 25, 1997 does not constitute an extraordinary circumstance. A petitioner's restricted access to library facilities does not merit equitable tolling. Townsend v. Superintendent, No. 05-CV-4979, 2006 WL 721517, at *2 (E.D.N.Y. Mar. 2, 2006) ("The petitioner is . . . not entitled to a tolling of the statute of limitations because he . . . has had limited access to a law library — routine restrictions on prison life do not constitute extraordinary circumstances."); Corrigan v. Barbery, 371 F. Supp. 2d 325, 330 (W.D.N.Y. 2005) ("In general, the difficulties attendant on prison life, such as . . . restricted access to the law library . . . do not by themselves qualify as extraordinary circumstances."); Warren v. Kelly, 207 F. Supp. 2d at 10 (same).
Further, it is not an extraordinary circumstance when a prisoner does not receive legal assistance from prison law library clerks. Francis v. Miller, 198 F. Supp. 2d 232, 235 (E.D.N.Y. 2002) (noting that limited access to legal assistance is not so extraordinary as to merit equitable tolling);Agramonte, 2002 WL 1364086, at *2 ("[P]etitioner's alleged . . . lack of legal assistance do[es] not justify equitable tolling; [this] limitation, under which numerous inmate petitioners suffer, do[es] not amount to extraordinary circumstances."). Cross's claim that the period from January 1997 to July 2003 should be tolled because he was not given assistance by the law library clerks is, thus, without merit.
Medical Condition. Cross's mention of physical injuries sustained on July 25, 1997 also does not warrant equitable tolling. Courts rarely find medical problems or injuries to be a sufficient extraordinary circumstance to warrant equitable tolling. See, e.g., Nash v. McGinnis, No. 04 Civ. 9496, 2005 WL 1719871, at *3 (S.D.N.Y. July 22, 2005) ("[S]ummary references to his mental illness and alleged incompetence are not sufficient to warrant equitable tolling."); Mendez v. Artuz, No. 99 Civ. 2472, 2000 WL 991336, at *1 (S.D.N.Y. July 19, 2000) (finding insufficient petitioner's statements that he takes eleven different pills a day for diabetes and high blood pressure and that he is "constantly going in and out of the hospital");Rhodes v. Senkowski, 82 F. Supp. 2d 160, 169-70 (S.D.N.Y. 2000) (finding insufficient allegations of extreme headaches, depression, hypertension, weight loss, fungal infection, and a chest disorder brought on by AIDS that required three hospitalizations in a year). Cross's claimed injuries appear to have been far less debilitating than injuries that other courts have considered insufficient to toll the AEDPA statute of limitations. Further, Cross does not show any causal connection between his injuries and his failure to file his habeas corpus petition nor does he make clear how long he was incapacitated by his injuries.
In conclusion, none of Cross's grounds for tolling constitutes an extraordinary circumstance warranting tolling of AEDPA's statute of limitations — not Cross's confinement, nor the attendant loss of his legal papers and his failure to secure copies of them, nor his claimed injuries. Moreover, Cross did not act with reasonable diligence to file his habeas corpus petition as Cross eventually filed a CPL § 440.10 motion, a writ of error coram nobis, and a habeas corpus petition all without ever obtaining copies of legal papers.
2. Exhaustion of State Remedies
Cross correctly asserts that one of the prerequisites for entering federal court on a habeas corpus petition is the exhaustion of state remedies. In drafting AEDPA, Congress considered the exhaustion requirement of 28 U.S.C. § 2254(c) by including a complementary tolling provision in 28 U.S.C. § 2244(d)(2). Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999),aff'd, 531 U.S. 4 (2000). This Circuit has held that collateral state actions toll but do not restart an expired AEDPA statute of limitations. Smith, 208 F.3d at 17 ("We therefore 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."). To allow a petitioner a renewed statute of limitations would defeat the goal of finality sought by the enactment of AEDPA. Id. (finding that, if one-year period reset when state court denied collateral relief, state prisoners could manipulate deadline for federal habeas corpus review).
Cross filed his first collateral state action 977 days after the April 27, 1997 AEDPA grace period deadline. Cross then waited another 1,112 days after his CPL § 440.10 appeal was denied before filing a writ of error coram nobis. Clearly, the statute of limitations for filing a federal habeas corpus petition expired prior to the pendency of Cross's collateral state actions. Because the statute of limitations expired, there is nothing left to toll and Cross's habeas corpus petition is untimely.
D. Motion for Discovery
Subsequent to Respondent moving for dismissal under Rule 12(b)(6), Cross filed a motion for discovery on November 3, 2005. "A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of the Rules Governing Section 2254 Cases provides that:
A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.
In this instance, the Court concludes that Cross has not shown good cause to engage in discovery because his petition is, in all events, time-barred.
CONCLUSION
For the foregoing reasons, the Court grants Respondent's motion and dismisses Cross's habeas corpus petition pursuant to 28 U.S.C. § 2254 as time-barred. Pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Accordingly, the Court does not issue a certificate