Opinion
No. 03 Civ. 8313 (AJP).
December 21, 2004
OPINION AND ORDER
Pro se petitioner Ulysses Jones seeks a writ of habeas corpus from his April 4, 1999 conviction of first and third degree robbery and sentence of fifteen years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) The parties have consented to decision of the petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, Jones' petition is DENIED as time-barred.
FACTS
The First Department affirmed Jones' conviction on March 6, 2001, and the New York Court of Appeals denied leave to appeal on May 23, 2001. People v. Jones, 281 A.D.2d 185, 721 N.Y.S.2d 522 (1st Dep't), appeal denied, 96 N.Y.2d 831, 729 N.Y.S.2d 451 (2001).
Accordingly, Jones' conviction became final, and the AEDPA limitations period started to run, ninety days later, on August 21, 2001. E.g., Williams v. Artuz, 237 F.3d 147, 150-51 n. 1 (2d Cir.), cert. denied, 574 U.S. 924, 122 S. Ct. 279 (2001); Rodriguez v. Senkowski, 03 Civ. 3314, 2003 WL 21659369 at *1 (S.D.N.Y. July 15, 2003) (Peck, M.J.); Martin v. Walker, 02 Civ. 5880, 2002 WL 31509876 at *1 n. 1 (S.D.N.Y. Nov. 12, 2002) (Peck, M.J.) ( cases cited therein). Since Jones did not bring a C.P.L. § 440 or any other state collateral attack on his conviction (see Pet. ¶¶ 10-11), Jones had until August 21, 2002 to file his habeas petition. 28 U.S.C. § 2244(d)(1). His petition, however, is dated September 3, 2003 and was received by the Pro Se Office on September 15, 2003. (Pet., 1st last pages.)
Jones has stated that in May 2001 he hired an attorney to evaluate post-conviction relief via a C.P.L. § 440 motion and possible habeas corpus petition. (Dkt. No. 5: Jones Aff. ¶ 1.) After that attorney missed several meetings with him and failed to respond to his letters, on May 20, 2002, Jones submitted a formal complaint against counsel with the state disciplinary committee. (Jones Aff. ¶¶ 2-5.)
ANALYSIS
The AEDPA provides for a one-year limitation period:
(d)(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.28 U.S.C. § 2244(d)(1)-(2).
The Second Circuit has held, however, that the AEDPA limitations period is subject to equitable tolling in "extraordinary circumstances." See, e.g., Baldayaque v.United States, 338 F.3d 145, 150 (2d Cir. 2003). The Second Circuit has explained:
"To equitably toll the one-year limitations period, a petitioner must show that extraordinary circumstances prevented him from filing his petition on time, and he must have acted with reasonable diligence throughout the period he seeks to toll. To show that extraordinary circumstances prevented him from filing his petition on time, petitioner must 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. Hence, if the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing."Baldayaque v. United States, 338 F.3d at 150 (quotingHizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001),cert. denied, 536 U.S. 925, 122 S. Ct. 2593 (2002)); see also, e.g., Doe v. Menifee, No. 03-2432, ___ F.3d ___, 2004 WL 2633317 at *10, *25-28 (2d Cir. Nov. 19, 2004);Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000);Marengo v. Conway, 342 F. Supp. 2d 222, 230 (S.D.N.Y. 2004);Williams v. Breslin, 03 Civ. 1848, 2004 WL 2368011 at *5 (S.D.N.Y. Oct. 20, 2004) (Sweet, D.J.).
The Court accepts, for purposes of this Opinion, Jones' allegation that he hired an attorney who promised to file a habeas petition but then did not. Jones discovered the attorney's abandonment of him by at least May 20, 2002, when Jones filed a state disciplinary complaint against the attorney. (Jones Aff. ¶ 5 Ex. C.) At that point, Jones still had three months to timely file his habeas petition, but did not do so. Jones did not file his habeas petition until September 3, 2003 — some fifteen months after he learned that his attorney was not filing a habeas petition for him. This Court need not decide how much time it should have taken Jones, in the exercise of "reasonable diligence," to file a pro se habeas petition after he learned in May 2002 of his attorney's abandonment. Suffice it to say that a period of fifteen months — longer than the one year in which to file a habeas petition — is too long. See, e.g., Staton v. Berbary, 01-CV-4352, 2004 WL 1730336 at *7 n. 9 (E.D.N.Y. Feb. 23, 2004) ("Even if I were to exclude all the time during which Staton's federal habeas petition was pending . . ., his petition would still have been untimely. Indeed, he delayed two months (59 days) from the expiration of the one year period in the pre-Duncan world (on August 1, 2000) to file his collateral attack in state court, which is clearly well in excess of the 30 day interval touted in Zarvela."); Sanchez-Butriago v. United States, 00 Civ. 8820, 2003 WL 354977 at *3 (S.D.N.Y. Feb. 14, 2003) ("Assuming arguendo that Sanchez-Butriago's conviction was not final until the Second Circuit denied his motion to reinstate his appeal, and that he was unable to file his [§ 2255] habeas corpus petition until the Second Circuit had rendered its decision; Sanchez-Butriago's petition is still untimely. The Second Circuit denied the motion to reinstate on December 18, 1998. Sanchez-Butriago did not file the instant petition until November 2, 2000. From the day the Second Circuit ruled to the filing of this petition, 684 days passed. Well in excess of the 365 day limit for filing."); Jiminez v. United States, 02 Civ. 1187, 2002 WL 1870060 at *3 (S.D.N.Y. Aug. 14, 2002) ("Jimenez claims that he could not have discovered the discrepancy until some time shortly after March 4, 1999, when he arrived at the . . . Correctional Facility, but this is 1,059 days before his January 2002 motion — far more than a year. Jiminez's motion was delayed while he waited for decisions regarding his petitions to the court and B.O.P., but even if those delays qualified as the `rare and exceptional circumstance[s]' required for equitable tolling, excluding those 483 days from the 1,059 days between March 4, 1999 and January 25, 2002, still leaves 576 days."); Ramos v. United States, 99 Civ. 5736, 2001 WL 716938 at *2 (S.D.N.Y. June 25, 2001) ("Tolling makes no difference in this case, however, because Ramos failed to complete his § 2255 petition before his new, tolled deadline of May 15, 1999. This Court can only toll Ramos' AEDPA deadline for those three months in which he was instructed not to submit papers. . . . The memorandum in support of Ramos' § 2255 petition was dated July 28, 1999, more than two months after his new, tolled deadline. His petition must therefore be dismissed as untimely under the AEDPA."); Raynor v. Dufrain, 28 F. Supp. 2d 896, 900 n. 7 (S.D.N.Y. 1998) ("Even if there was some impediment to filing during the statutory period, if the petitioner still has many months remaining in which to file after removal of this impediment, this Court would have little reason to exercise its equitable powers."). Jones' petition, therefore is untimely.
Indeed, in an April 4, 2003 letter to the Departmental Disciplinary Committee, Jones recognized that: "Based on [the attorney's] negligence I am procedurally barred to petition a writ of habeas corpus to the federal court." (Jones Aff. ¶ 9 Ex. G: 4/2/03 Jones Letter.)
CONCLUSION
Jones' petition is DENIED as time barred. A certificate of appealability shall not issue.SO ORDERED.