Opinion
No. 01 Civ. 4530 (LTS)(MHD)
January 11, 2002
MEMORANDUM ORDER
In his petition for a writ of habeas corpus, filed by counsel on his behalf on May 29, 2001, petitioner Zhen Di Li ("Petitioner") argues that his federal constitutional rights were violated by juror misconduct in connection with state court criminal proceedings that led to his state court conviction of kidnapping and promoting prostitution. Respondent has moved to dismiss the petition as untimely. The Court has jurisdiction of the proceeding pursuant to 28 U.S.C.A. section 2254 (West 1994 Supp. 2001). Having considered carefully the parties' submissions, the petition is dismissed as untimely for the following reasons.
The following relevant facts are undisputed. Petitioner was convicted on June 29, 1994, in the Supreme Court, New York County, of Kidnapping in the First Degree (two counts) and Promoting Prostitution in the Second Degree (three counts). He was sentenced to two concurrent terms of fifteen years to life, to run consecutively to three concurrent five-to-fifteen year terms. See People v. Yuen Pang, 254 A.D.2d 101 (1st Dep't 1998). In the course of the trial the judge received a note from a juror, complaining that another juror had made a racist remark and suggesting a mistrial. After receiving a note from the foreman requesting permission to continue deliberations and after inquiry, the deliberations were permitted to continue, and the foregoing convictions were returned.
Petitioner timely filed a notice of appeal from the judgment of conviction. Prior to perfecting the appeal, Petitioner filed through counsel a N.Y. Crim. Proc. Law section 440.10 motion, arguing for vacatur of the sentence on the ground of juror misconduct. The motion was denied and leave to appeal granted. The conviction was affirmed by a unanimous panel of the Appellate Division, First Department, on October 13, 1998. People v. Yuen Pang, 254 A.D.2d 101 (1st Dep't 1998). Petitioner's application for leave to appeal to the Court of Appeals was denied on March 10, 1999. People v. Yuen Pan, 93 N.Y.2d 881 (1999).
By notice of motion dated January 14, 2000, Petitioner sought a writ of error coram nobis from the Appellate Division, First Department. That application was denied on September 21, 2000. People v. Li, 275 A.D.2d 1045 (2000). Petitioner thereafter sought leave to appeal that decision to the Court of Appeals, which application was dismissed on November 27, 2000. People v. Zhen Di Li, 95 N.Y.2d 940 (2000).
The instant petition was filed on May 29, 2001.
Discussion
The 1996 federal Antiterrorism and Effective Death Penalty Act ("AEDPA") established a one-year statute of limitations for applications by state prisoners for writs of habeas corpus challenging their state confinement. 28 U.S.C.A. § 2244(d)(1) (West Supp. 2001). The one-year period begins to 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, 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.
Id.
Respondent argues that the petition is untimely because a total of 483 days elapsed between May 26, 1999, the date on which the period in which Petitioner could have petitioned the Supreme Court of the United States for a writ of certiorari with respect to the affirmance of his conviction expired, and May 29, 2001, the date on which this petition was filed. Respondent's calculations take into account tolling of the limitations period during the pendency (from January 14, 2000 through September 21, 2000) of Petitioner's application for a writ of error coram nobis.
See Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001).
Exclusion of the period of time during which his application to the New York Court of Appeals for leave to appeal the denial of the coram nobis petition is precluded by the Second Circuit's decision in Hizbullahhankamon v. Walker, 255 F.3d 65 (2d Cir. 2001). Even if the additional 67-day period were excluded, however, the petition would still clearly be untimely.
Petitioner, acknowledging that his petition was untimely filed, attributes to his counsel the failure to file timely and argues, citing Bounds v. Smith, 430 U.S. 817 (1971), that application of the AEDPA limitations period to bar his petition would violate his First Amendment right of access to the courts. In Bounds v. Smith, the Supreme Court recognized prisoners' rights to "adequate, effective and meaningful" access to the courts. Id., 430 U.S. at 822. Nothing in the Bounds decision or in Petitioner's factual assertions in opposition to the instant motion to dismiss his petition, however, precludes the application in this case of the one-year statute of limitation set by Congress in AEDPA. Petitioner simply claims that his petition was untimely because his lawyer, whose services he acknowledges were not constitutionally guaranteed to him in connection with this habeas corpus proceeding, did not file the petition on time. That assertion is plainly insufficient to demonstrate that application of the limitations period would deny Petitioner adequate, effective and meaningful opportunity for access to the courts. Cf. Armuchee Alliance v. King, 922 F. Supp. 1541, 1549-50 (N.D.Ga. 1996) (15-day limitation period in connection with salvage timber sale program does not violate First Amendment right to petition courts).
Nor is Petitioner's argument of attorney misconduct availing as a basis for equitable tolling of the limitations period. Petitioner asserts simply that his attorney "did not submit his petition to this Court in the proper time" and that in so doing she "failed to provide petitioner with effective assistance of counsel." (Pet.'s Memo. of Law in Supp. of Mot. to Deny Resp.'s Dismissal of a Writ of Habeas Corpus, at 6, 3.) Although the doctrine of equitable tolling applies to the AEDPA limitations period, "[t]o 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, 138 (2d Cir. 2001). Attorney error is "inadequate to create the `extraordinary' circumstances equitable tolling requires." Id. Accordingly, even taking into account petitioner's unsworn statement in his memorandum of law, attributing to his attorney the failure to comply with the AEDPA limitations period, and reading that assertion in the light most favorable to Petitioner, he has presented no facts supporting equitable tolling of the one-year limitations period and his petition is therefore untimely.
The petition for a writ of habeas corpus is dismissed.
SO ORDERED.