Opinion
99 Civ. 2473 (SWK)
February 20, 2002.
OPINION AND ORDER
Petitioner Miguel Mercedes ("Mercedes") petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred this matter to Magistrate Judge Ronald L. Ellis, who issued a Report and Recommendation recommending the dismissal of the petition as time-barred. Mercedes, through counsel, has submitted objections to the Magistrate's Report, and the Court will consider de novo those matters to which objections have been made. See Fed.R.Civ.Proc. 72(b). For the reasons set forth below, the Report and Recommendation of Magistrate Judge Ellis is adopted and the petition is dismissed.
I. BACKGROUND
Magistrate Judge Ellis has clearly set forth the relevant background facts and the Court need not repeat them here in detail. See Report and Recommendation of Magistrate Judge Ronald L. Ellis (hereinafter the "Report"), dated August 31, 2001, at 3-5. On October 11, 1983, Mercedes was convicted by a jury of two counts of murder in the second degree, two counts of felony murder, and one count of robbery in the first degree for the robbery and murders of Jose Felice ("Felice") and Nery Armando Pereya ("Pereya") Felice's girlfriend, Altagracia Elizabeth Montilla ("Montilla"), was present at the time of the murders, and allegedly began an intimate relationship with Mercedes just prior to the murders while Felice was incarcerated. See Report at 3. Montilla allegedly helped Mercedes clean up any trace of the murders and began living with him shortly after the killings. See Report at 4.
Mercedes originally filed a pro. se habeas corpus petition in this Court on August 12, 1991. He subsequently moved for voluntary dismissal of that petition on May 11, 1992, and the Court granted his request to dismiss without prejudice on September 9, 1992. Mercedes then filed several petitions and motions for postconviction relief in state court, including an appeal of his conviction and, finally, a writ of error coram nobis on February 3, 1998. Mercedes then filed the instant petition for a writ of habeas corpus on January 4, 1999, and it was referred by the Court to Magistrate Judge Ellis on April 28, 2000. On June 21, 2000, defendant Walter Kelly ("Kelly") requested leave to make a motion to dismiss the instant petition as time-barred. On August 31, 2001, Magistrate Judge Ellis recommended that the Court grant Kelly's motion.
II. ANALYSIS
A. STANDARD OF REVIEW
Rule 72 of the Federal Rules of Civil Procedure, as well as the Federal Magistrate's Act, 28 U.S.C. § 631-639, designate the standard of review a district court should apply when reviewing a magistrate judge's order. Where, as here, objections have been made to the magistrate judge's determination, the district court's review is de novo the district court may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." 28 U.S.C. § 636(b)(1).
B. PETITIONER'S OBJECTIONS
Mercedes objects to the Report's finding that his petition is time-barred, and argues that his circumstances warrant equitable tolling of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") limitation period and the one-year grace period. 28 U.S.C. § 2244(d). Mercedes also asserts that he has satisfied the criteria for equitable tolling established in Schlup v. Delo, 573 U.S. 298 (1993).
1. STATUTE OF LIMITATIONS
Magistrate Judge Ellis found that Mercedes' petition is timebarred because of the one-year statute of limitations for the filing of a habeas petition under the AEDPA. 28 U.S.C. § 2244(d); see Report at 6. Pursuant to the AEDPA, the one-year limitation 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 discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)
Petitioners whose convictions became final prior to the enactment of the AEDPA are allowed a period of one year after the enactment date to file their petitions. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). However, 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. . . ." 28 U.S.C. § 2244(d)(2).
Magistrate Judge Ellis found that Mercedes' petition is timebarred because it was filed after the applicable statute of limitations had expired. See Report at 6. Because Mercedes' conviction was final before the enactment of the AEDPA, the statute of limitations for Mercedes' writ of habeas corpus began to run on April 24, 1996, and ended on April 24, 1997. See Ross v. Artuz, 150 F.3d at 103. Mercedes' motion for a writ of error coram nobis was filed nearly one year after the statute of limitations had expired, and therefore does not serve to toll the applicable limitation period. See 28 U.S.C. § 2244(d)(2). The instant petition was not filed until January 4, 1999. Accordingly, unless the one-year limitation period is subject to equitable tolling, Mercedes' petition is untimely and therefore, must be dismissed.
2. EQUITABLE TOLLING
Magistrate Judge Ellis also addressed the issue of whether Mercedes' petition is entitled to the equitable tolling provisions of the AEDPA. The Magistrate found that Mercedes is not entitled to equitable tolling for his attorney's alleged misrepresentation that the AEDPA's time-bar would not apply to him because he had previously filed, and then withdrawn, an earlier habeas corpus petition. See Report at 6-7. The Magistrate also found that Mercedes is not entitled to equitable tolling based upon Mercedes assertion that he was attempting to locate Montilla throughout his period of incarceration. See Report at 7. Mercedes' only apparent objection to the Report is that his and his counsel's efforts to locate Montilla throughout the period 1994 through 2000 trigger the equitable tolling provision. See Petitioner's Response to Report and Recommendation ("Pet.'s Response"), dated October 15, 2001, 1.
When a petition for a writ of habeas corpus is time-barred, a petitioner may be able to extend his time to file under the doctrine of equitable tolling. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000),cert. denied, 531 U.S. 840 (2000). Equitable tolling applies when "the petitioner is able to show that "extraordinary circumstances prevented him from filing his petition on time.'" Davis v. Artuz, No. 99 Civ. 9244, 2001 WL 199454, *2 (S.D.N.Y. Feb. 28, 2001) (quoting Smith v. McGinnis, 208 F.3d at 17). Equitable tolling is a "rare and exceptional" remedy.Davis v. Artuz, 2001 WL 199454 at *2 (quoting Turner v. Johnson, 177 F.3d 390 (5th Cir. 1999), cert. denied, 528 U.S. 1007 (1999)). As noted by Magistrate Judge Ellis, in order to meet the equitable tolling standard, Mercedes must show that he acted "with reasonable diligence throughout the period he seeks to toll." Report at 6 (quoting Smith v. McGinnis, 208 F.3d at 17).
Mercedes argues that equitable tolling should apply because he was unable to locate Montilla to testify at his trial and there was a continued search to locate her. See Pet.'s Response at 1. In his objections to the Report, Mercedes provides exhibits that allegedly detail his ongoing attempt to locate Montilla throughout the period 1994 through 2000. See, e.g., Pet.'s Response, Exs. A D. In order to bolster his claim that an ongoing search for Montilla was conducted throughout the relevant period, Mercedes attaches a March 29, 1994 report from an investigator hired by his counsel that details a two-day effort by the investigator to locate Montilla. See Pet.'s Response at Ex. B. Mercedes also attaches an affidavit from Montilla in which she states that she was not contacted by the prosecution to testify at Mercedes' trial, and that she is now willing to testify in order to "exonerate Miguel Mercedes and expose the illegal and unconstitutional conduct of the New York District Attorney's Office." Pet.'s Response, Ex. D, Affidavit of Altagracia Montilla, dated April 28, 2000, at ¶ 6. However, as Montilla was paying the legal fees for Mercedes' trial counsel, and was therefore aware of the prosecution of Mercedes, it can be inferred that if she wanted to testify at Mercedes' trial in order to exonerate him, she was aware of where to contact Mercedes' counsel. See Report at 9. Additionally, a two-day effort by an investigator does not constitute a "continued search," and therefore, the Court finds that Mercedes did not act with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d at 17. Accordingly, the Court finds that Mercedes has not demonstrated that he is entitled to equitable tolling of the AEDPA statute of limitations, and the findings contained in the Magistrate's Report on this issue are hereby adopted.
Mercedes also asserts that he has met the criteria of Schlup v. Delo, 573 U.S. 298 (1993). However, according to the Supreme Court's holding inSchlup, a petitioner's procedural default may be overlooked only if a habeas petition presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial. Schlup v. Delo, 573 U.S. at 316. To be credible, "such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial." Schlup v. Delo, 573 U.S. at 324. The petitioner must show that given the new evidence, it "is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 573 U.S. at 327. The court "may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." Schlup v. Delo, 573 U.S. at 332.
However, Mercedes has not demonstrated that this "new" evidence he presents would have caused a reasonable juror to find him not guilty. Mercedes argues that Montilla's testimony at trial would have demonstrated his innocence. See Pet.'s Response at 1. However, Magistrate Judge Ellis found that Montilla's statements to the prosecution were equivocal and do not exonerate Mercedes. See Report at 7. Montilla was interviewed by the police prior to Mercedes' trial, and a transcript of the videotaped interview was disclosed to Mercedes at trial. See Report at 4-5. After viewing the tape, the trial judge ruled that the videotaped interview of Montilla had no exculpatory value and declined to disclose it. However, the transcript of the interview was made an exhibit at trial. See Report at 4-5, 7. As a result, Montilla's testimony was known to Mercedes at the time of trial and therefore cannot be considered "new evidence." Schlup v. Delo, 513 U.S. at 316. Additionally, Montilla's statements, coming 17 years after Mercedes' conviction, and on the eve of her own deportation are not sufficiently reliable. See Schlup v. Delo, 513 U.S. at 332. Therefore, Mercedes has not provided sufficient evidence to meet the standard set forth in Schlup, and his petition cannot be equitably tolled.
III. CONCLUSION
For the foregoing reasons, Mercedes is not entitled to equitable tolling of the statute of limitations for the filing of his habeas corpus petition. Accordingly, Kelly's pre-answer motion to dismiss Mercedes' habeas corpus petition as time-barred is granted.
It is hereby
ORDERED that the Report and Recommendation issued by Magistrate Judge Ronald L. Ellis on August 31, 2001, is accepted in accordance with 28 U.S.C. § 636(b). Accordingly, it is further
ORDERED that in accordance with the Report and Recommendation of the Magistrate, the petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254 is denied. The petitioner may not appeal this order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c)(1). A certificate will be granted "only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court finds that the petitioner will not be able to sustain his burden. Thus, the Court declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Should the petitioner seek to appeal in forma pauperis, 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 (1962).
SO ORDERED.