Opinion
01 CIV. 6961 (DLC)
May 31, 2002
David Segal, New York, NY, for Petitioner.
Patricia Curran, Assistant District Attorney for the County of New York, New York, NY, for Respondent.
OPINION AND ORDER
On July 30, 2001, Dario Pena ("Pena"), through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254"). Pena's petition was referred to Magistrate Judge Dolinger for a Report and Recommendation ("Report"). On March 11, 2002, Judge Dolinger recommended that Pena's petition be denied as untimely. For the reasons that follow, Judge Dolinger's recommendation is adopted and Pena's petition is denied.
BACKGROUND
On June 24, 1996, Pena was convicted after a jury trial of one count of felony murder in the second degree for the shooting death of Gary Rawls ("Rawls"). At trial, the State presented, inter alia, the testimony of an eyewitness to the shooting who identified Pena as present when Rawls was shot, as well as Pena's statement after his arrest that his companion had indicated an intent to rob Rawls. Pena was sentenced principally to twenty-five years to life in prison.
On appeal, Pena challenged (1) the state's loss of Rosario material; (2) the sufficiency of the evidence to support a felony murder conviction; (3) the introduction of evidence of consciousness of guilt; (4) the prosecution's failure to meet its burden of proof; and (5) the length of his sentence. The First Department affirmed his conviction on March 16, 1999. People v. Pena, 688 N.Y.S.2d 123 (1st Dep't 1999). The Court of Appeals denied Pena leave to appeal on July 5, 1999. People v. Pena, 93 N.Y.2d 1005 (1999).
Pena brought a petition for writ of error coram nobis in New York state court. Pena's petition was dated June 5, 2000, and was received by the District Attorney for the County of New York on June 15, 2000. In this collateral attack, Pena alleged that his appellate counsel was ineffective because he did not challenge on appeal (1) the trial court's failure to give a limiting instruction; (2) the prosecutor's reference to evidence not admitted at trial; and (3) the denial of Pena's motion to admit the grand jury testimony of an unavailable witness. The First Department denied his petition on February 22, 2001. People v. Pena, 721 N.Y.S.2d 855 (1st Dep't 2001). There is no indication that Pena sought Supreme Court review of this decision.
Pena filed his Section 2254 petition in federal court on July 30, 2001. In this petition, Pena challenges the state's loss of Rosario material, the sufficiency of the evidence, certain evidentiary rulings, and the effectiveness of his appellate counsel. This Court referred Pena's petition to Magistrate Judge Dolinger for a recommendation. By letter of October 29, 2001, the respondent moved to dismiss Pena's petition as untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Petitioner filed a response to the letter motion on November 30, 2001, in which he argued that (1) AEDPA's limitations period should be tolled for ninety days after the Appellate Division denied his petition for a writ of error coram nobis, and (2) the limitations period should be equitably tolled because he was actually innocent. On December 10, 2001, Judge Dolinger ordered the petitioner to submit any additional evidence to support his contention that he was actually innocent.
Because Pena is represented by counsel, the prison mailbox rule does not apply. Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 122 S.Ct. 197 (2001).
In his March 11, 2002 Report, Judge Dolinger found that even after tolling the time during which Pena's petition for a writ of error coram nobis was pending in state court, Pena's Section 2254 petition exceeded AEDPA's one-year limitations period by more than one month. First, relying on Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001), cert. denied, 122 S.Ct. 1606 (2002), Judge Dolinger held that the time during which a petitioner could have, but did not, seek Supreme Court review of a denial of a post-conviction collateral attack is not tolled under Section 2244(d). Second, Judge Dolinger stated that Pena had not presented a factual basis for invoking the doctrine of equitable tolling. Finally, Judge Dolinger concluded that although actual innocence could present a constitutionally-mandated exception to the one-year bar, a petitioner must first establish a claim of actual innocence by presenting new evidence and showing "that it is more likely than not" that no reasonable jury could have found him guilty beyond a reasonable doubt. Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 114 (2d Cir.), cert. denied, 531 U.S. 873 (2000) (citation omitted). After considering the record of Pena's state court proceedings, Judge Dolinger concluded that Pena had offered no new evidence that would reliably demonstrate his innocence. He concluded, in fact, that the evidence of Pena's guilt — including eyewitness identification testimony and Pena's own statements — was substantial.
At most, Judge Dolinger noted, Pena had speculated that law enforcement authorities may have lost Rosario material that could have been helpful to his case.
As indicated by Judge Dolinger in his Report and pursuant to Rule 72, Fed.R.Civ.P., the petitioner and respondent had ten days in which to file objections to the Report. No objections by either party have been filed.
DISCUSSION
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
Having reviewed the Report, I find no facial error. Under AEDPA, which was effective on April 24, 1996, a prisoner in state custody has one year after the date his conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1). AEDPA's limitations period is tolled during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." Id. § 2244(d)(2). Pena's state court conviction became final on October 3, 1999, ninety days after the Court of Appeals denied leave to appeal. When Pena filed his petition for a writ of error coram nobis on June 5, 2000, approximately 246 days of his one-year limitations period had expired. Pena's petition was dismissed on February 22, 2001, and his federal petition was filed on July 30, 2001, approximately 158 days later. The one-year grace period was not reset after Pena sought state post-conviction collateral review. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). Approximately 404 days of Pena's one year limitations period are not tolled and his petition is untimely.
Because it is unclear whether Pena was represented by counsel when he filed his petition for a writ of error coram nobis, it is appropriate to use the date he signed the petition as the filing date of his coram nobis petition. Noble, 246 F.3d at 97-98.
Judge Dolinger correctly concluded that the time during which a petitioner could have, but did not, petition the Supreme Court for a writ of certiorari from a denial of a collateral attack is not tolled under 28 U.S.C. § 2244(d). Smaldone, 273 F.3d at 138. Although Smaldone was decided after Pena filed his petition for a writ of error coram nobis, it does not announce a new rule of law and thus applies to Pena's case. See Walsche v. First Inv. Corp., 981 F.2d 649, 653 (2d Cir. 1992).
Since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," courts may equitably toll the period. Smith, 208 F.3d at 17. Equitable tolling of the one-year limitations period for Section 2254 petitions is available "when extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.), cert. denied, 531 U.S. 968 (2000) (citation omitted).
In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll." Id. (citation omitted). As Judge Dolinger concluded, Pena has alleged no facts that would warrant equitable tolling of AEDPA's limitations period.
Judge Dolinger also correctly concluded that even if a claim of actual innocence created an exception to AEDPA's limitations period, such relief would not be warranted unless the petitioner could establish a claim of actual innocence. Lucidore, 209 F.3d at 114. To show actual innocence, "a petitioner must present new reliable evidence 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. (citation omitted) (alteration in original). As Judge Dolinger determined, Pena has neither alleged the existence of new evidence, nor shown that it is more likely than not that no reasonable jury could have found him guilty beyond a reasonable doubt. Because Pena has not demonstrated "actual innocence," it is unnecessary to address whether such a showing would provide an exception to the limitations period.
CONCLUSION
For the reasons stated, the petition is dismissed. I further find that the petitioner having made no objections to the Report, and the Report having advised petitioner that failure to object will preclude appellate review of this Order, the petitioner has waived his right to appeal. United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997); Small v. Sec'y of Health Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). The Clerk of Court shall dismiss this petition and close the case.
SO ORDERED: