Opinion
9:98-CV-0882 (GLS).
February 17, 2004
SAMUEL ED DAVIS, Petitioner, Pro Se, Attica, NY, for the Petitioner.
MARIA MORAN, ESQ., Ass't Attorney General, HON. ELIOT SPITZER, Office of Attorney General, Syracuse, NY, for the Respondent.
DECISION and ORDER
Petitioner, pro se Samuel Ed Davis, a New York State prison inmate, filed a writ of habeas corpus asserting four separate grounds in support of his claim that his convictions of first and second degree assault, and promoting prison contraband should be set aside ( Dkt. No. 1). In responding to the petition, the Office of the Attorney General for the State of New York ("Attorney General"), acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition in which he claims, inter alia, that the petition is untimely in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996) ( Dkt. Nos. 9-10). Davis has filed a traverse in further support of his petition ( Dkt. No. 11). For the following reasons, the court dismisses Davis' petition as time-barred.
I. Background
On October 30, 1992, Davis was charged by a Washington County grand jury with first and second degree assault, and first degree promoting prison contraband See Indictment No. I-79-92 (reproduced at Resp. Ex. 1). These charges are the result of an incident that occurred on June 11, 1992, in the mess hall at the Great Meadow Correctional Facility. See Transcript of Trial of Samuel Davis (7/21/93) (" Tr.") at PP. 335-36. The testimony adduced at trial revealed that Douglas Martelle, a CO at Great Meadow, observed William Nealy, an inmate at that facility, hit Davis on the head with the wooden handle of a squeegee ( Tr. at P. 339). As the two inmates began running toward CO Martelle, he allowed Davis to pass, however, Nealy was forced to stop when CO Martelle stepped out in front of him ( Tr. at PP. 339-40). CO Martelle then noticed that Nealy had numerous cuts all over his body ( Tr. at P. 340). Davis, who had proceeded toward the kitchen, was detained by CO William Gosline, who observed a razor blade near Davis next to a food warmer at the facility ( Tr. at PP. 442-43).
The razor blade was then retrieved and secured as evidence ( Tr. at PP. 450-51).
On July 21, 1993, a jury trial commenced with Washington County Court Judge Gordon M. Hemmett, Jr., presiding. At the conclusion, Davis was found guilty of all three counts ( Tr. at PP. 578-79). He was thereafter sentenced as a persistent felony offender to concurrent terms of 15 years to life imprisonment on each conviction, consecutive to the sentence he was then serving for previous crimes. People v. Davis, 208 A.D.2d 1062 (3d Dept. 1994).
Davis appealed his conviction to the New York State Supreme Court Appellate Division, Third Department. The Appellate Division affirmed, Davis, 208 A.D.2d at 1064, and the Court of Appeals denied Davis leave to appeal. People v. Davis, 84 N.Y.2d 1010 (1994).
The only state court challenge Davis filed regarding his convictions following his direct appeal was an application for a writ of error coram nobis ( Pet. at ¶¶ 10-11). That application was denied by the Third Department by order dated April 24, 1998. See People v. Davis, No. 10454, slip op. (3d Dept. Apr. 24, 1998) (reproduced at Resp. Ex. 12).
II. Procedural History
Davis commenced this proceeding in the Western District of New York on May 7, 1998 ( Pet. at P. 7). Following the transfer of the action to this District by United States District Judge John T. Curtin ( Dkt. No. 3), this court issued an order directing a response to the petition ( Dkt. No. 5). The Attorney General subsequently filed an answer and memorandum in opposition to the petition, and has provided the court with various records associated with the relevant state court proceedings ( Dkt. Nos. 9-10). On December 24, 1998, Davis filed a traverse in further support of his petition ( Dkt. No. 11).
Davis' petition was stamped by the Clerk's Office in the Western District as having been filed on May 15, 1998 ( Pet. at P. 1). The Second Circuit has held, however, that due to the unique difficulties faced by incarcerated pro se litigants, a prisoner's pleading is deemed to be properly filed at the time he or she hands the papers to the prison authorities for transmittal to the court. Dory v. Ryan, 999 F.2d 679, 681-82 (2d Cir), modified on reh'g, 25 F.3d 81 (2d Cir. 1994); Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.), cert. denied, 534 U.S. 886 (2001) (extending "prison mailbox rule" to petitions seeking writ of habeas corpus pursuant to 28 U.S.C. § 2254). Therefore, the court will assume, arguendo, that this action was commenced on May 7, 1998.
III. Discussion
The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996. 28 U.S.C. § 2244(d).
28 U.S.C. § 2244(d) provides that:
(1) 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;
* * *
(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.
Davis was denied leave to appeal his conviction to the New York State Court of Appeals on December 13, 1994. Davis, 84 N.Y.2d at 1010. Since his conviction became final prior to April 24, 1996 (the effective date of the AEDPA), Davis was afforded one year, or until April 24, 1997, in which to timely file his federal habeas corpus petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998); Rhodes v. Senkowski, 82 F. Supp.2d 160, 173-74 (S.D.N.Y. 2000) (citing Ross).
The only challenge Davis brought in state court concerning his conviction following his direct appeal was his application for a writ of error coram nobis, which was filed no earlier than February 18, 1998, the date on which Davis signed his affidavit in support of that application. See Aff. in Support of Coram Nobis Application at (unnumbered) P. 2 (reproduced at Resp. Ex. 10). However, that application was filed 300 days after the statute of limitations applicable to Davis' federal habeas petition had already expired. Moreover, the filing of that coram nobis application did not cause the one-year statute of limitations to run anew; as the Second Circuit has explained, such an interpretation would allow prisoners to "extend or manipulate the deadline for federal habeas review by filing additional petitions in state court." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (AEDPA's tolling provision excludes time during which properly filed state applications for post-conviction relief are pending but does not reset date from which the one-year limitation period begins to run); Evans v. Senkowski, 105 F. Supp.2d 97, 99 (E.D.N.Y. 2000) (the filing of a post-conviction motion in state court "cannot revive a time period that has already expired" under the AEDPA).
However, the filing of the coram nobis application on February 18, 1998, tolled the statute of limitations ( see 28 U.S.C. § 2244(d)(2)), and that statute continued to be tolled until the Third Department denied that application on April 24, 1998. E.g., Gomez v. Duncan, 02CIV0846, 2002 WL 1424584, at *3 (S.D.N.Y. July 1, 2002). Thus, on April 24, 1998, the statute of limitations began to run anew, and continued to run for fourteen additional days, until May 7, 1998, the date that Davis signed his federal habeas petition.
Based upon this chronology, when the time during which the statute of limitations was tolled is excluded, a total of 679 days passed between April 24, 1996, the effective date of the AEDPA, and the filing of this proceeding. Therefore, Davis has exceeded the statute of limitations by 314 days. However, the Second Circuit has indicated that a habeas petition that has been untimely filed may nevertheless be considered by a district court if either: a) the statute of limitations should be equitably tolled ( Smith, 208 F.3d at 17-18); or, b) the petitioner has made a credible claim of actual innocence in his petition. See Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). a. Equitable Tolling
In his traverse, Davis notes that the Second Circuit's decision in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997) in which a panel had held that habeas petitioners should only be given a "reasonable time" after the effective date of the AEDPA in which to file a petition under 28 U.S.C. § 2254, was subsequently refined by the Second Circuit in Ross. Traverse at P. 1. However, Davis' petition is untimely even after affording Davis the benefit of the full one-year grace period discussed in Ross.
Equitable tolling applies "only in the 'rare and exceptional circumstance.'" Smith, 208 F.3d at 17 (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)) (alteration in original). However, equitable tolling is only available when "'extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren, 219 F.3d at 113 (quoting Smith, 208 F.3d at 17); Agramonte v. Walsh, 00CV892, 2002 WL 1364086, at *1 (E.D.N.Y. June 20, 2002). "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 (2d Cir. 2001) (internal quotation and citation omitted), cert. denied, 535 U.S. 1017 (2002); see also, Warren, 219 F.3d at 113 (citing Smith, 208 F.3d at 17).
The record establishes that Davis did not act with reasonable diligence between the time the AEDPA was enacted and the date on which he filed this action. Davis waited more than twenty-one months after the enactment of the AEDPA before filing his application for a writ of error coram nobis. Moreover, between April 24, 1996, and the date that he filed his coram nobis application, Davis brought and actively litigated a civil rights action in this District. See Davis vs. Cox et al., 6:96-CV-1149 (NAM)(RWS). Therefore, this court finds no basis to invoke equitable tolling in order to consider Davis' untimely petition.
b. Actual Innocence
None of the four grounds asserted in the petition claim that Davis is actually innocent of the crimes for which he was convicted. See Pet. at Grounds One through Four. Moreover, in preparing this Decision and Order, this court has reviewed the transcript generated as a result of Davis' trial. That review establishes that Davis cannot properly assert a credible claim that he is actually innocent of any of the crimes of which he was convicted. Accordingly, dismissal of the petition cannot be avoided on this basis. E.g., Whitley, 317 F.3d at 225-26; Catala v. Bennett, ___ F. Supp.2d ___, 02CIV. 2857, 2003 WL 21709522, at *5 (S.D.N.Y. July 21, 2003).
IV. Conclusion
Davis filed his petition 679 days after the enactment of the AEDPA, well after the one year period within which his petition should have been timely filed. Moreover, the relevant facts do not demonstrate that extraordinary circumstances prevented Davis from timely filing his federal habeas petition and that the statute of limitations should therefore be equitably tolled. Additionally, Davis cannot properly assert a credible claim that he is actually innocent of any of the crimes of which he was convicted. Therefore, the court dismisses the petition as time-barred.
WHEREFORE, it is hereby
ORDERED, that Davis' petition be DENIED and DISMISSED in its entirety; and it is further
ORDERED, that the clerk of court serve a copy of this Order on the parties.
IT IS SO ORDERED.