Opinion
01-CV-6372(RR)
March 29, 2002
MEMORANDUM AND ORDER
By order dated November 15, 2001, petitioner Clarence Green was directed to show cause by affirmation, within 60 days, why his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 should not be dismissed as time-barred. The reasons set forth in petitioner's affirmation, received on February 5, 2002, are insufficient to avoid the applicable statute of limitations, and therefore, the petition must be dismissed as time-barred.
Since a § 2254 petition is deemed to have been filed on or about the date it is delivered to prison officials for transmittal to the court see Houston v. Lack, 487 U.S. 266 (1988), and since this court assumes that Green's petition was so delivered on the date he signed it, i.e., September 20, 2001, that date is considered the date of filing.
The following facts are taken from Green's affirmation and are sufficient, if accepted as true, to dispose of this case. Green states that he was convicted for homicide on May 5, 1992 in New York State Supreme Court, Kings County. See Petitioner's Affirmation at ¶ 3. His conviction was affirmed by the Appellate Division, Second Department, on February 14, 1995, and the New York Court of Appeals denied his appeal on June 2, 1995. See id. Green claims that he immediately filed Freedom of Information Act requests in August 1995, and that in August 1997 he received "police reports and other legal documents" including a statement by the victim's mother, a DD5 from an officer who recovered three .25 caliber shell casings at the crime scene, radio transmission reports describing the incident and the perpetrator, police ballistics reports, and crime scene photographs. See id. He asserts that he obtained his mother's mental health record on March 7, 1997 and an affidavit on September 17, 1997, each purporting to show that his mother did not have the legal capacity to consent to a warrantless entry of her home to arrest the petitioner. See id. at ¶ 5, Petitioner's Mem. of Law at 3. Green claims that on May 30, 1998 he obtained an affidavit from a person claiming that he had been approached by the real perpetrator who admitted that Green was being "forced to take the weight" for the crime.See Petitioner's Aff. at ¶ 8.
These discoveries led Green to file for collateral relief in state court pursuant to New York Crim. Proc. Law § 440.10 in July 1998. See id. at ¶ 10. The New York State Supreme Court denied his § 440 motion on March 3, 1999 and the Appellate Division, Second Department, affirmed that denial on August 20, 1999. See id. at ¶¶ 10-11. Green attempted to file for certiorari review of this denial by the United States Supreme Court several times during the period January 2000 until March or April 2000, but his filings were not accepted by the Court. See id. at ¶¶ 11-12. Since Green was on long term keeplock, Larry Mallory, a clerk in the prison law library, agreed to work on his case and file a federal habeas petition on his behalf. See id. at ¶ 12.
On May 1, 2000, Green was transferred from Southport Correctional Facility ("Southport") to Elmira Correctional Facility ("Elmira"), where in January 2001 he was allegedly assaulted by prison officers and confined to his cell in the Special Housing Unit ("SHU"). See id. at ¶ 13. He was transferred back to the Southport SHU in February, and since he did not hear anything about his case, he assumed that Mr. Mallory had successfully filed a habeas petition on his behalf. See id. at ¶ 14. On May 11, 2001, Green was transferred to Attica Correctional Facility ("Attica"), where upon his arrival he sustained injuries in an alleged assault by corrections officers who were members of the "Black Glove Gang," a group conspiring against prisoners having a record of assaulting prison guards. See id. at ¶¶ 15-18. Green claims that these injuries affected his mental faculties. See id. at ¶ 19. He further alleges that in July 2001 members of the Black Glove Gang poisoned his food and destroyed his personal legal materials. See id. at ¶¶ 19-22.
Green was released from the Attica SHU on August 31, 2001 and transferred back to Elmira. See id. at ¶ 23. He claims that it was not until that time that he learned that his legal materials had been discarded by the prison law library and that his habeas petition had not yet been filed. See id. at ¶¶ 13, 23. He filed this petition on September 20, 2001.[1]
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "Act"), signed into law on April 24, 1996, created a one-year statute of limitations for petitioners to file for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1) (2002). This one-year period is tolled, however, during the pendency of collateral proceedings:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment of claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2) (2002). In "rare and exceptional circumstances," the limitations period may be equitably tolled, but only if the petitioner can also show that he acted with "reasonable diligence" during the period he wishes to have tolled, but that dispite his efforts, extraordinary circumstances "beyond his control" prevented successful filing during that time. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
Green claims that his September 20, 2001 petition is still timely because (1) according to § 2244(d)(1)(D), his one-year limitations period should commence on "the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence," and (2) that this limitations period was subsequently sufficiently tolled (a) while he collaterally appealed his conviction, (b) while he was medically incapacitated, and (c) due to the loss of his legal documents.
Assuming, without deciding, that Green's limitations period should commence one year from his latest discovery of alleged new evidence (i.e., the May 30, 1998 receipt of an affidavit), his one-year limitations period pursuant to § 2244(d)(1)(D) would have expired on May 30, 1999. Green's July 1998 filing of a collateral challenge pursuant to New York Crim. Proc. Law § 440.10, however, tolled his limitations period until August 20, 1999, when the Second Department affirmed the denial of his § 440.10 motion. He did not file for certiorari review, however, until January 2000, after the expiration of the ninety-day period allotted for such filing by Supreme Court Rule 13. Since Green did not timely file for certiorari, and in any event, his certiorari filings were never accepted by the Supreme Court, his limitations period is not tolled during the ninety-day filing period. See Smalldone v. Senkowski, 273 F.3d 133, 137-38 (2d Cir. 2001) (holding that where no petition for certiorari was properly filed or pending during the ninety-day period, petitioner's limitations period was not tolled).
Green's affirmation provides no arguable grounds for equitable tolling until more than twenty months later, when he was transferred from Southport to Elmira on May 1, 2000. It was at Elmira that Green claims he sustained the mentally incapacitating injuries that warrant equitable tolling. Further, it was only after his transfer to Elmira that his legal papers were allegedly lost or damaged. By the time he was transferred to Elmira, however, Green's AEDPA limitations period had long since expired.
Green's claim that he had relied on a prison law library clerk to file his petition also does not satisfy the high standard for equitable tolling. A petitioner is not entitled to equitable tolling even when his attorney does not file within the AEDPA limitations period. See Smalldone v. Senkowski, 273 F.3d at 138 (citing Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (attorney's misunderstanding of the period for which a claim remained "pending" did not warrant equitable tolling); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) ("attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling"); Taliani v. Chrans, 189 F.3d 597, 598 ("a lawyer's mistake is not a valid basis for equitable tolling"); Sandvik v. United States, 177 F.3d 1269, 1270 (11th Cir. 1999) ("mere attorney negligence . . . is not a basis for equitable tolling")).
Green's petition is accordingly dismissed as time-barred. A certificate of appealability will not issue because petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107 (2d Cir. 2000); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).