Opinion
99 Civ. 9244 (HB)
February 27, 2001
OPINION ORDER
Samuel Ed Davis, ("petitioner"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition"). This matter was referred to Magistrate Judge Maas, who issued a Report and Recommendation ("Report") that recommended the petition be dismissed. The petitioner filed objections to the Report. For the reasons set forth below, the Report is adopted in its entirety and the petition is DISMISSED.
I. BACKGROUND
On February 19, 1991, petitioner was convicted of two counts of murder in the second degree, one count of robbery in the first degree, and one count of criminal possession of a weapon in the second degree. The Appellate Division unanimously affirmed his conviction on December 22, 1992, People v. Davis, 591 N.Y.S.2d 1009 (N.Y.App.Div. 1992), and on March 16, 1993, the New York Court of Appeals denied petitioner's request for leave to appeal from the order of affirmance. People v. Davis, 597 N.Y.S.2d 945 (N.Y. 1993). As petitioner did not thereafter seek a writ of certiorari in the United States Supreme Court within the allowable 90-day period, his conviction became final on June 14, 1993.
While his direct appeal was pending, petitioner brought a pro se motion in state court, under Section 440.10 of the CPL, to vacate his conviction on the basis of newly discovered evidence. On May 27, 1993, Justice Berkman denied that motion on both procedural and substantive grounds. On August 5, 1993, the Appellate Division denied Davis's application for leave to appeal from this decision. Petitioner's motion to vacate has no impact on the timeliness of his petition because it was not pending during the one year Ross grace period. See Ross v. Artuz, 150 F.3d 97, 103 (2nd Cir. 1996).
Four years later, petitioner filed a pro se petition for a writ of error coram nobis. That petition, dated November 26, 1997, was denied on September 22, 1998. Petitioner then filed the present habeas petition. His petition is dated March 13, 1999, and file-stamped as having been received by the Court's Pro Se Office on April 29, 1999. After he commenced this proceeding, petitioner also filed a petition for a writ of habeas corpus in Supreme Court, Duchess County, on August 25, 1999. His state habeas petition was denied on April 27, 2000.
By order dated August 27, 1999, former Chief Judge Thomas P. Griesa directed petitioner to file an affirmation detailing why his petition should not be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). In response, petitioner submitted an affirmation, dated September 7, 1999, in which he indicated that various state court proceedings filed by him have been continually pending since the effective date of the AEDPA. Following the receipt of that affirmation, this case was reassigned to Judge Jones, and later to me. I, in turn, referred it to Magistrate Judge Maas for a report and recommendation.
On May 31, 2000, the respondent moved to dismiss the petition in this proceeding as untimely under the one-year statute of limitations set forth in 28 U.S.C. § 2244 (d)(1). In opposition, petitioner served a "Traverse" in which he argued that the statute of limitations has been tolled by the pendency of various proceedings, including his direct appeal, his application for a writ of error coram nobis, and his state habeas petition.
II. DISCUSSION
Standard of Review
In reviewing a Report and Recommendation, the district court reviews de novo those parts of the report to which there has been an objection. The Court may accept, reject, or modify the report in whole or in part. Fed.R.Civ.P.72(b) (1983); 28 U.S.C. § 636 (b)(1)(B) (C) (1988). However, the court is not required to conduct a de novo hearing. See Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
Petitioner's Objections
Petitioner objected to the Report's finding that the petition was time barred arguing that:
(1) he filed the petition within the one year grace period applicable to all convictions that became final prior to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and (2) the petitioner's circumstances warrant equitable tolling of the AEDPA's limitation period and the one year grace period (together, the "objections").
1. Statute of Limitations
Under 28 U.S.C. § 2244, as amended by the AEDPA, an inmate generally must file a Section 2254 habeas petition within one year of 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 AEDPA limitations period for those petitioners whose convictions became final prior to AEDPA's April 24, 1996 effective date was April 24, 1997.Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000); Ross v. Artuz, 150 F.3d 97, 103 (2nd Cir. 1996). The limitations period is subject to the following tolling provision:
Section 2244(d)(1) provides 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 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 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); see Graham v. Senkowski, No. 99 Civ. 1907, 2000 WL 777891, at *2 (S.D.N.Y. 2000).
In order for the one-year period to be tolled as a consequence of a "properly filed application for State" collateral review, the petitioner must seek such review either before or during the one-year limitations period. Montalvo v. Strack, No. 99 Civ. 5087, 2000 WL 718439, at *23 (S.D.N.Y. 2000); see 28 U.S.C. § 2244 (d)(2).
In this case, petitioner's conviction became final 90 days after the New York Court of Appeals denied him leave to appeal. See Williams v. Artuz, No. 99-2195, 2001 WL 6708, at *3 (2nd Cir. 2001) ("the AEDPA limitations period . . . does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired"). Since his conviction became final before the AEDPA effective date, petitioner was required to file his habeas petition by April 24, 1997. By his own admission, petitioner did not file the present petition until at least March 13, 1999. And, as he conceded in his objections, petitioner's other submissions, a writ of error coram nobis and a state habeas petition, also postdated the April 24, 1997 cutoff. Accordingly, unless the one year limitations period was subject to equitable tolling, Davis's petition is untimely.
Petitioner's argument relies on the mistaken assumption that the AEDPA effective date was April 24, 1997, and that, therefore, his limitations period ran until April 24, 1998.
2. Equitable Tolling
Where a petitioner is able to show that "extraordinary circumstances prevented him from filing his petition on time," the one-year limitations period may also be equitably tolled. Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000). Such situations are "rare and exceptional." Id. (quotingTurner v. Johnson, 177 F.3d 390 (5th Cir. 1999)). Moreover, the petitioner "must have acted `with reasonable diligence throughout the period he seeks to toll." Id.
In his objections, petitioner raises several arguments in support of equitable tolling: a) that he spent considerable time in administrative segregation and therefore was unable to pursue his claims; b) that he was unaware of his substantive claims; and c) that his pro se status excuses him from the harsh consequences of filing outside the limitations period. None of petitioner's arguments have merit.
a. administrative segregation
As I stated in Jackson v. Kelly, 2000 WL 325690 (S.D.N.Y. 2000) (J. Baer), when a petitioner rests a claim for equitable tolling upon his administrative segregation, "the petitioner must show that circumstances actually impeded the ability to file a timely petition." See id. at *4.see Mendez v. Senkowski, 2000 U.S. Dist. LEXIS 11210, at *9-10 (S.D.N.Y. 2000) ("[n]umerous courts have reasonably concluded that being held in administrative segregation is not an "unseeable event" and therefore, not an "extraordinary circumstance" triggering equitable tolling without further proof that the circumstances actually impeded the ability to file a timely petition").
According to his objections, petitioner was in administrative segregation from 1992 until 1995, and from April 13, 1996 until 1998. During this time, petitioner claims to have had limited access to the law library and other judicial resources. Such conclusory assertions are not sufficient to trigger equitable tolling. In Jackson, I dismissed petitioner's equitable tolling argument because, inter alia, petitioner "failed to show that he exercised diligence in preparing his petition in the seven weeks from the time he left administrative segregation . . . [until] the last days to timely submit his petition." Jackson, 2000 WL 325690, at *3. According to his objections, petitioner was in the general prison population from 1995 until April 13, 1996, time enough to prepare the petition.
Moreover, petitioner's claim that his access to "law library, courts, personal legal work" was "limited" during administrative segregation does not constitute a viable argument that petitioner was "actually impeded" in his ability to timely file the petition. See e.g., Posada v. Schomig, 64 F. Supp.2d 790, 794 (C.D. Ill. 1999) (concluding that Petitioner's fairly "run-of-the-mill" claims that he was misled by his appellate counsel, that the prison was sometimes on lock-down and that prison law clerk did not provide adequate assistance do not establish "extraordinary circumstances" justifying equitable tolling of the AEDPA's one-year period of limitations); Ego-Aguirre v. White, 1999 WL 155694 (N.D. Cal. 1999) (finding that 180 days of lockdown and limited library access do not support equitable tolling). It goes without saying that the petitioner's catalogue of concerns likely caused some difficulty. The problem is that under present law no matter how "limiting" administrative segregation may have been, without a showing of diligence while subject to segregation, it is not a sufficient excuse. Here petitioner delayed four years from the date his conviction became final before filing the instant petition. See Montalvo v. Strack, 2000 WL 718439, at *3 (S.D.N.Y. 2000) (delay in excess of three years after conclusion of direct review does not constitute reasonable diligence). Nothing in the record excuses petitioner's delay.
b. unaware of substantive claims
Petitioner argues that he "was unaware of his substantive claims. . . ." However, as I said in Jackson, "courts have not articulated any basis to provide extensions when a Petitioner's claim is one of simple ignorance." Jackson, 2000 WL 325690, at *4.
c. pro se status
Petitioner is not entitled to a more lenient standard because of his status as a pro se litigant. See id.; McGinnis, 208 F.3d at 18; Posada, 64 F. Supp.2d at 794 ("[p]etitioner's status as a pro se litigant did not exempt him from compliance with the relevant rules of procedural and substantive law, such as the requirement of timely filing"). The touchstone of equitable tolling is whether petitioner was unable despite diligent efforts to timely file his habeas petition. Petitioner has not convincingly shown that he was unable to do so. For the same reason, petitioner's cryptic statement that "extraordinary situations and officials prevented petitioner from seeking relief in timely fashion from last minute actions" falls well short of the mark.
III. CONCLUSION
After conducting a de novo review of those parts of the Report to which petitioner objects, and finding no clear error with any part of the Report, I adopt Magistrate Judge Maas' Report in its entirety. The petition for habeas corpus is DENIED and the Clerk of the Court is directed to close this case. Finally, and following from the foregoing, petitioner's request for appointment of counsel is DENIED.