Opinion
No. 99 CV 8640 (RR)
February 11, 2002
CAMILLO INFANTE, Green Haven Correctional Facility, Stormville, New York; Petitioner Pro Se
ELIOT SPITZER, New York, New York; attorney for Respondent; By: Tiffany M. Foo, Assistant Attorney General
MEMORANDUM AND ORDER
Camillo Infante, proceeding pro Se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 23, 1991, Infante was convicted after a jury trial in Queens County on charges arising out of the robbery of a neighborhood grocery store and an ensuing shoot-out with police, specifically: two counts of robbery in the first degree, see N.Y. Penal Law § 160.15 (McKinney 1999), three counts of criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03 (McKinney 2000), three counts of criminal possession of a weapon in the third degree see N.Y. Penal Law § 265.02 (McKinney 2000 Supp. 2001), and two counts of resisting arrest, see N Y Penal Law § 205.30 (McKinney 1999). Infante is presently incarcerated, having been sentenced as a second felony offender to consecutive prison terms often to twenty years on each of the two robbery counts, seven and one-half to fifteen years on two counts of second degree weapon possession, six to twelve years on the third count of second degree weapon possession, as well as concurrent terms of three-to six years for third degree weapon possession, and one year for resisting arrest.
Infante challenged his conviction both on direct appeal and through a motion to vacate judgment pursuant to N.Y. Crim. Proc. Law § 440.10. The latter motion, based in part on a claim of ineffective assistance of counsel, was denied on the merits on January 8, 1993. See People v. Infante, Ind. No. 1445/90 (Sup.Ct. Queens Co., Jan. 8, 1993). Meanwhile, on direct appeal, the Appellate Division, Second Department, considered myriad arguments made both by Infante's new counsel and by petitioner himself in a pro se supplemental brief. On October 31, 1994, that court affirmed Infante's conviction. See People v. Infante, 208 A.D.2d 952, 618 N.Y.S.2d 572 (2d Dep't 1994). Petitioner's counsel moved for leave to appeal certain claims to the New York Court of Appeals, which application was denied on February 22, 1995. See People v. Infante, 85 N.Y.2d 863, 624 N.Y.S.2d 382 (1995) (Levine, J.).
Approximately four years later, on October 26, 1998, Infante again challenged his conviction before the Second Department, moving for a writ of error coram nobis on the ground that he had been denied effective assistance of appellate counsel. The motion was denied on the merits on June 3, 1999. See People v. Infante, No. 91-04897 (2d Dep't June 3, 1999).
On December 14, 1999, Infante filed his petition with this court. He contends that appellate counsel was constitutionally ineffective in failing to argue the ineffectiveness of trial counsel who, Infante alleges, failed to (1) pursue his claim of actual innocence, (2) move for a mistrial based on the prejudicial argument of counsel for a co-defendant, (3) object to erroneous jury instructions, and (4) move for dismissal on one of the two counts of resisting arrest.
Since § 2254 petitions are deemed to have been filed on or about the date they are delivered to prison officials for transmittal to the court, see Houston v. Lack, 487 U.S. 266 (1988), and since this court assumes that Infante's petition was so delivered on the date he signed it, i.e., December 14, 1999, that date is considered the date of filing.
Respondent opposes the petition on the grounds that it is time-barred, that certain claims are procedurally barred, and, in any event, all claims are without merit. Having carefully reviewed the submissions of the parties, the court agrees that the petition is untimely and, therefore, dismisses on that ground.
Discussion
I. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which took effect on April 24, 1996, establishes a one-year limitations period for the filing of § 2254 petitions. That period runs 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, 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) (2002). Infante does not suggest, and nothing before this court indicates, that subparagraphs (B), (C), or (D) apply to his case. Accordingly, this court considers the issue of timeliness with reference only to § 2244(d)(1)(A).
A conviction is final for purposes of § 2244(d)(1)(A) when certiorari proceedings are completed in the United States Supreme Court or, in the case of prisoners such as Infante who elect not to file petitions with the Supreme Court, when "the time to seek direct review via certiorari has expired." Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001). Infante's time to petition for certiorari expired, and thus his conviction became final, on May 23, 1995, ninety days after the New York Court of Appeals unanimously denied his motion for leave to appeal. See Supreme Court Rule 13.
AEDPA does not specifically state how its limitations provisions apply to cases such as this one, in which a prisoner's conviction became final before the statute's effective date. In Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998), however, the Second Circuit ruled that such a prisoner must be afforded a one-year grace period from the statute's effective date in which to file for federal habeas relief. Thus, Infante had until April 24, 1997 to file his § 2254 petition. His December 14, 1999 filing, almost two and a half years beyond the grace period, is plainly untimely.
Infante submits that he was not required to file his federal petition until one year after the Second Department's June 3, 1999 denial of his coram nobis motion. Thus, he insists, his December 14, 1999 filing was timely. This argument is based on a misunderstanding of 28 U.S.C. § 2244 (d)(2), AEDPA's provision for tolling the one-year filing period. That section states that "[t]he 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." As applied to the Ross grace period, § 2244(d)(2) will toll the one-year filing period if a prisoner has any collateral challenges pending during the time between April 24, 1996 and April 24, 1997. See Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000) (applying tolling provision to Ross grace period). That, however, is not Infante's case. His first collateral challenge to his conviction, his § 440.10 motion, was denied on January 8, 1993, more than three years before the grace period even commenced. Thus, it had no effect on the grace period. As for his coram nobis petition, it was not filed until October 26, 1998, eighteen months after the Ross grace period had expired. A collateral challenge cannot, of course, "toll" a limitations period that has already run its course. To hold otherwise would allow prisoners impermissibly to "extend or manipulate the deadline for federal habeas review by filing additional petitions in state court."Id. at 17. For this very reason, the Second Circuit in Smith expressly rejected the argument now advanced by Infante: that a collateral challenge not only tolls AEDPA's one-year filing period, but actually resets the date from which it runs to the point when the state court denies relief. Id.
Because Infante had no collateral proceedings pending during the period from April 24, 1996 to April 24, 1997 that would have tolled the one-year grace period in which he could have filed for federal habeas relief, his December 14, 1999 petition must be dismissed as untimely.
II. Constitutional Challenge to AEDPA
In an effort to avoid dismissal, Infante argues that AEDPA's one-year statute of limitations and, by extension, the Ross one-year grace period, violate the Constitution's Suspension and Ex Post Facto Clauses, as well as the First, Ninth, and Fourteenth Amendments.
Article 1, Section 9, Clause 2 of the Constitution, commonly referred to as the Suspension Clause, states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Second Circuit has already ruled that AEDPA's limitations period does not violate this clause. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2000); Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam), aff'd on opinion below, 990 F. Supp. 275 (S.D.N.Y. 1998) (Sotomayor, J.). As the Court explained in Lucidore:
because AEDPA's one year statute of limitations leaves habeas petitions with some reasonable opportunity to have their claims heard on the merits, the limitations period does not render the habeas remedy inadequate or ineffective to test the legality of detention, and therefore does not per se constitute an unconstitutional suspension of the writ of habeas corpus.Id. at 113 (citations omitted).
Article I, Section 9, Clause 3 of the Constitution prohibits the enactment of ex post facto laws. Neither AEDPA's limitations period nor the grace period derived from it by the Second Circuit in Ross v. Artuz violate this Clause. As then — District Judge Sotomayor explained in rejecting an ex post facto challenge to AEDPA, the Clause "applies only to penal statutes, i.e., `legislative action that retroactively "punishes as a crime an act previously committed, which was innocent when done," "makes more burdensome the punishment for a crime, after its commission," or "deprives one charged with crime of any defense available according to law at the time when the act was committed.'"" Rashid v. Kuhlmann, 991 F. Supp. 254, 260 (S.D.N.Y. 1998) (quoting Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir. 1997) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)). AEDPA's statute of limitations does not fall into any of these three categories. Id. Indeed, procedural changes, even those that work to the disadvantage of a petitioner, are not subject to ex post facto analysis. See Dobbert v. Florida, 432 U.S. 282, 293 (1977). In fact, as Judge Sotomayor observed, AEDPA's statute of limitations does not even disadvantage a petitioner since it provides "a reasonable time in which to file his petition." Rashid v. Kuhlmann, 991 F. Supp. at 260. The Ross grace period ensures that same reasonable time for prisoners like Infante whose convictions became final before AEDPA took effect.
Ross also disposes of Infante's remaining constitutional challenges, for as the Second Circuit ruled in that case, a statute of limitations shortening the time in which to file an existing cause of action violates neither due process nor the right of access to the courts provided a reasonable grace period is afforded for the commencement of an action before any new bar takes effect. See Ross v. Artuz, 150 F.3d at 96. Since Infante had the benefit of a reasonable grace period in which to file his § 2254 petition, his First, Ninth, and Fourteenth Amendment challenges to AEDPA must also be rejected.
The Second Circuit has not yet found it necessary to rule on whether the Constitution mandates an "actual innocence" exception to any limitations period for filing federal habeas claims. See Lucidore v. New York State Div. of Parole, 209 F.3d at 113. In Lucidore, however, the Circuit made plain that such an argument could only be pursued by a petitioner who could demonstrate "that he is actually innocent of the charges" on which he was convicted. Id. at 114.
To demonstrate actual innocence, a habeas petitioner must present "`new reliable evidence that was not presented at trial' and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Id. (quoting Schlup v. Deo, 513 U.S. 298, 299 (1995)). Infante cannot satisfy this standard. His only "new evidence" is a March 25, 1997 letter from a sergeant at the Green Haven Correctional Facility responding to petitioner's inquiry about a bullet that was presumably removed from him after arrest and that was now included in his personal property. The sergeant writes that the hospital staff that removed the bullet reported it to be a 9 mm round. Infante now argues that this finding confirms his claim that he was not at the scene of the robbery, since the police officer who testified to firing at him was using a .38 caliber revolver. Infante insists that he was shot on the same day at another location by two unidentified men, and he faults his trial counsel for not presenting this defense.
Plainly, Infante did not act with reasonable promptness on this "new evidence." He waited over nineteen months, until October 26, 1998, to challenge the effectiveness of his appellate counsel in state court and, after receiving an adverse ruling on June 3, 1999, waited another six months before filing his December 14, 1999 petition with this court.
In any event, Infante's "new evidence" hardly warrants the conclusion that "no reasonable juror" would have been likely to find him guilty of participating in the charged robbery and attempted murders. Preliminarily, the court notes that Infante was specifically identified at trial by two police officers who had close contact with him during the shoot-out. Indeed, at one point, Infante had his gun pointed at the head of one of the officers. The jury had the opportunity to hear directly from these officers and to assess their credibility in light of vigorous cross-examination. Although Infante insists that the jury erred in accepting the officers' account of the shoot-out, the Supreme Court has emphasized that § 2254 does not give federal habeas courts the "license to redetermine the credibility of witnesses whose demeanor has been observed" by the jury, but not by them. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). The prison letter does not support a different conclusion. Assuming arguendo that Infante was not shot by a police officer firing a .38 caliber revolver, that hardly indicates that he was not at the scene. He might well have been wounded by a bullet fired by one of the other participants in the shoot-out. For example, one of Infante's confederates was armed with a .357 magnum, a weapon that fires a projectile similar in size to a 9 mm bullet. This is significant because the proffered opinion of "hospital staff" is hardly conclusive on the issue of bullet size. Such an opinion requires training in ballistics, particularly when a bullet has been fired and the possibility of deformity exists. The court further notes that the officer's account of his encounter with Infante was corroborated on an important point. Specifically, the officer testified that on one occasion when Infante tried to fire his gun at him, there was a click and an explosion, but no flash from the barrel and no bullet expelled. When Infante was arrested, the gun seized from him in fact had a bullet wedged in its barrel.
In sum, Infante has failed to establish actual innocence. Thus, this court need not consider a constitutional exception to the limitations period for filing § 2254 claims.
Conclusion
For the reasons stated, this court finds (1) that Camillo Infante's December 14, 1999 petition for a writ of habeas corpus was not timely filed under 28 U.S.C. § 2244 (b)(1)(A) as interpreted by the Second Circuit in Ross v. Artuz, and (2) that the application of a limitations period to petitioner's case does not violate the United States Constitution. Infante's petition for a writ of habeas corpus is denied as is a certificate of appealability.