Opinion
9:98-CV-0349 (TJM)(GLS).
October 3, 2000
TYRONE PRITCHARD, Petitioner, pro se, Oneida Correctional Facility, Rome, NY.
HON. ELIOT SPITZER, Office of the Attorney General, State of New York, OF COUNSEL, MARISA LONGO, Esq., CHRISTOPHER A. QUARANTA, Esq., Ass't Attorneys General, New York, NY, FOR THE RESPONDENT.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner Tyrone Pritchard ("petitioner" or "Pritchard") filed a petition pursuant to 28 U.S.C. § 2254 in this District on February 26, 1998. The undersigned issued an order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, that directed the Office of the Attorney General for the State of New York ("Attorney General") to file a response to the petition. Docket no. 4. Such response was filed by the Attorney General, Docket Nos. 9-10, who also provided the Court with various state-court records relating to petitioner.
II. Discussion
A. Factual Background
On November 24, 1992, petitioner and other individuals planned the robbery of a dwelling on Merriam Avenue in Syracuse, New York. Trial transcript of criminal trial of Tyrone D. Pritchard (10/12/93) ("Tr.") at 196-97. At approximately 11:00 p.m. that same evening, there was a knock on the door of 411 Merriam Avenue. Id. at 127-29. When the door was answered, three men came in and a man wearing a trench coat pulled out a sawed-off shotgun and told the occupants to "get the f*** down" on the floor. Id. at 129-31. Anthony Chesna, who was in the apartment at the time, saw petitioner's face before he pulled a mask over it. Id. at 168-69. Chesna saw petitioner shoot another individual who was in the apartment at the time, a man nicknamed "William." Id. at 167-69.
"William" was the nickname for an individual named Julian Martinez. Tr. at 127-28.
Petitioner was thereafter indicted by a Grand Jury for the crimes of burglary in the first degree (two counts); attempted robbery in the first degree (two counts); assault in the first degree; and criminal possession of a weapon in the second degree. Tr. at 4. Petitioner was convicted by a jury of burglary in the first degree (two counts), one count of attempted robbery in the first degree, and criminal possession of a weapon in the second degree. Affidavit in opposition to petition (Docket No. 9) ("Respondent's Aff.") at ¶ 2. On October 28, 1993, Judge J. Kevin Mulroy sentenced petitioner to an indeterminate term of seven to twenty one years and ten and one-half to twenty one years imprisonment on the burglary convictions, five to fifteen years on the attempted robbery conviction, and five to fifteen years on the criminal possession of a weapon conviction, with the sentences to run concurrently. Sentencing transcript (10/28/93) at 10-12.
Petitioner appealed his conviction to the Appellate Division, Fourth Department ("Appellate Division"). That Court unanimously affirmed the conviction. People v. Pritchard, 210 A.D.2d 937 (4th Dep't 1994). Petitioner was denied leave to appeal by the Court of Appeals on April 11, 1995. Respondent's Aff. at Ex. D. On September 12, 1996, petitioner's counsel moved for reconsideration in both the Appellate Division and the Court of Appeals in light of the Court of Appeal's then-recent holding in People v. Feliciano, 88 N.Y.2d 18 (1996). Respondent's Aff. at Ex. E. The Appellate Division denied such motion as untimely by Order dated November 8, 1996, Id. at Ex. F, and the Court of Appeals denied the application by Order dated December 19, 1996. Id.
On December 9, 1997, petitioner filed a writ of error coram nobis with the Appellate Division. Id. at Ex. G. That court denied petitioner's application by Order entered February 4, 1998. Id. at Ex. I; People v. Pritchard, 247 A.D.2d 942 (4th Dep't 1998).
Petitioner commenced the present action on February 8, 1998. See Docket No. 1 at 7. Several grounds are asserted by petitioner in support of his application. Petitioner first claims that he received "invidious treatment on post conviction review." Petition at p. 5a. Specifically, petitioner claims that the criminal defendant in Feliciano obtained a reversal of his conviction on facts that were, for legal purposes, identical to those found in Pritchard's case, but for reasons that are contrary to petitioner's rights under the Constitution, petitioner's conviction has been allowed to stand. Petitioner next argues that his Sixth Amendment right to confront his accuser and cross-examine witnesses "was denied when the court refused to admit Anthony Chesna's prior inconsistent statement." Id. Finally, petitioner contends that the trial judge wrongfully denied petitioner the "right to be present during portions of the voir dire that were material stages of the trial." Id. at 6a.
This is the date on which petitioner apparently signed his petition. The Second Circuit has held that, due to the unique difficulties faced by incarcerated pro se litigants, a prisoner's pleading is deemed to be properly filed at the time he hands the papers to the prison authorities for transmittal to the court. Dory v. Ryan, 999 F.2d 679, 681-82 (2d Cir), modified on reh'g, 25 F.3d 81 (2d Cir. 1994); Covington v. City of New York, 916 F. Supp. 282, 286 (S.D.N.Y. 1996). See Houston v. Lack, 487 U.S. 266, 270-76 (1988) (inmate's notice of appeal is deemed filed at the time of delivery to prison authorities).
B. Timeliness of Action
Respondent initially argues that this matter is time-barred due to the one year statute of limitations imposed on habeas petitions in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Docket No. 10 at 6-11. In his reply, petitioner contends that his action was timely commenced under the AEDPA. Docket No. 13 at 3-9.
28 U.S.C. § 2244(d) provides as follows:
(1) A one 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;
(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.
(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.
In the present action, petitioner was denied leave to appeal the affirmance of his conviction by the Court of Appeals on April 11, 1995. A judgment of conviction becomes final under the AEDPA at the conclusion of the ninety days during which the party could have sought certiorari in the United States Supreme Court. Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of Rules of the Supreme Court of the United States); Allen v. Hardy, 478 U.S. 255, 258 n. 1 (1986) (decision becomes final "where the availability of appeal [is] exhausted, and the time for petition for certiorari ha[s] elapsed"). Because petitioner's conviction was final prior to April 24, 1996, the effective date of the AEDPA, petitioner was afforded the benefit of a one-year grace period — until April 24, 1997 — in which to file his habeas corpus petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Petitioner apparently signed his petition on February 8, 1998. Thus, this matter is time-barred unless the statute of limitations was tolled for approximately nine and one-half months, or if petitioner can otherwise demonstrate that the statute of limitations should not have begun to run on April 24, 1996.
Petitioner filed two collateral actions in state court prior to commencing the present action: (a) motions for reconsideration filed, apparently simultaneously, in both the Appellate Division and the Court of Appeals; and, (b) a writ of error coram nobis filed with the Appellate Division. The undersigned will briefly review each of these applications to determine whether and to what extent they tolled the statute of limitations.
Pritchard refers to the motions for reconsideration filed with the Appellate Division and Court of Appeals as "contemporaneous." Respondent's Aff. at Ex. G, ¶¶ 15-16.
As noted above, petitioner's motions for reconsideration were directed at both the Appellate Division — which denied petitioner's direct appeal — and the Court of Appeals — which denied Pritchard's application for leave to appeal the Appellate Division's decision. See Respondent's Aff. at Ex. E.
Respondent contends that the motions were not "properly filed" so as to invoke the tolling period authorized by the AEDPA because the Appellate Division denied the application as untimely. Docket No. 10 at 9-10.
Although the AEDPA does not define what constitutes a "properly filed" motion for purposes of § 2244(d)(2), the Second Circuit has interpreted this phrase to mean "an application for state post-conviction relief recognized as such under governing state procedures." Bennett v. Artuz, 199 F.3d 116, 123 (2d Cir. 1999), cert. granted, ___ U.S. ___, 120 S.Ct. 1669 (2000). The Bennett court also noted that "'[t]he majority of courts that have considered this issue have concluded that "a properly filed application" is one submitted according to the state's procedural requirements, such as the rules governing notice and the time and place of filing.'" Id., 199 F.3d at 121 (quoting Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999)) (internal quotation marks omitted).
By Order dated November 6, 1996, Pritchard's motion for reconsideration was "dismissed as untimely" by the Appellate Division. Id. at Ex. F. However, the Court of Appeals — to which petitioner also submitted a motion for reconsideration — simply denied Pritchard's request for reconsideration — no reference was made to the timeliness (or lack thereof) of such application. In light of the fact that the Court of Appeals did not find that the request for reconsideration was untimely, the Court finds that same was "properly filed" for tolling purposes.
The fact that Pritchard was ultimately unsuccessful in his request does not bear on the issue of whether such application can toll the AEDPA's statute of limitations. Bennett, 199 F.3d at 121 (noting how Circuit will not "engraft a merit requirement into § 2244(d)(2) without some indication of congressional intent to do so").
Thus, from April 24, 1996, until September 12, 1996, or 141 days, the statute of limitations on petitioner's habeas petition ran. This period was tolled from September 12, 1996, until December 19, 1996. Therefore, petitioner was required to file his petition by July 31, 1997, for this matter to be timely commenced, unless during this time the statute of limitations was tolled for some other reason.
Petitioner appears to argue that the statute of limitations was tolled between December 19, 1996, and December 7, 1997, because according to Pritchard, during this time he "exercised due diligence in developing the facts supporting Ground 1" of his federal habeas petition. Docket No. 13 at 7. However, during this period of time, petitioner was preparing a petition for a writ of error coram nobis based upon Feliciano, which had been decided on April 2, 1996. Petitioner was aware of this decision in September 1996 — he referenced it throughout his motion for reconsideration filed September 12, 1996. Respondent's Aff. at Ex. E. The fact that petitioner chose to pursue a state-court remedy, rather than file a federal habeas petition, does not provide the Court with a legal basis to toll the applicable statute of limitations.
However, Pritchard has also articulated a more persuasive argument concerning the timeliness of his assertion of this ground for relief. Petitioner claims that "until petitioner's motions for reconsideration and coram nobis relief had all been denied, there was no factual basis for his due process and equal protection claims." Docket No. 13 at 6.
Ground One of Pritchard's petition alleges that he was denied due process and equal protection of the law, and received "invidious treatment on post conviction review" by the conduct of the state courts in affirming his conviction and denying his collateral challenges to same. Petition at 5a.
The statute of limitations under the AEDPA begins to run from the date the petitioner is "on notice of the facts which would support a claim." Ludicore v. New York State Div. of Parole, 1999 WL 566362, at *5 (S.D.N.Y. Aug. 3, 1999) (internal quotations omitted), aff'd, 209 F.3d 107 (2d Cir. 2000); Hector v. Greiner, 2000 WL 1240010, at *1 (E.D.N.Y. Aug. 29, 2000); see 28 U.S.C. § 2244(d)(1)(D). Since the factual basis for Ground One of petitioner's claim could not have been complete until the Appellate Division issued its decision on Pritchard's application for a writ of error coram nobis, and petitioner filed this action the same month that such application was denied, the Court cannot find that this particular ground in Pritchard's habeas petition is time-barred.
However, the undersigned finds that the other two grounds asserted by Pritchard, i.e., that (a) the trial court improperly refused to allow into evidence a prior inconsistent statement of Chesna, thereby violating petitioner's right to confront his accuser and cross-examine such witness (Pet. at 5a, Ground Two) and (b) petitioner was denied the right "to be present during portions of the voir dire that were material stages of the trial" (Pet. at 6a, Ground Three) are time-barred. Pritchard has not claimed — and could not reasonably argue — that the "factual predicate" concerning these claims could not have been discovered until after his application for a writ of error coram nobis was denied by the Appellate Division. Indeed, both of these grounds were argued by Pritchard in his brief to the Appellate Division. See Resp't Aff. at Ex. A. Because petitioner was required to file his federal habeas petition as to these grounds no later than July 31, 1997, and Pritchard has not demonstrated any "rare and exceptional circumstance" that would warrant the equitable tolling of this statute of limitations, Smith v. McGinnis, 208 F.3d 13, 17 (2nd Cir. 2000), these grounds must be dismissed as untimely, as petitioner did not assert them until, at the earliest, February 8, 1998.
C. Denial of Due Process and Equal Protection
Viewing this claim liberally, petitioner appears to be contending that his Equal Protection and Due Process rights were violated by the state courts below by their failure to reverse Pritchard's conviction as was done in the Feliciano case.
Considering first petitioner's Equal Protection claim, the undersigned notes that the Equal Protection clause of the Fourteenth Amendment directs state actors to treat similarly situated people alike. Moreover, to establish an Equal Protection violation, a petitioner must prove purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995); Quinn v. Nassau County Police Dept., 53 F. Supp.2d 347, 355 (E.D.N.Y. 1999). Petitioner's claim fails to meet either of these criteria.
In Feliciano, the Appellate Division found that "under the particular facts of this case," the absence of that defendant during portions of the jury voir dire violated his fundamental right to be present at all material stages of trial. People v. Feliciano, 209 A.D.2d 634, 635 (2nd Dep't 1994). The court held that "[a]n examination of the minutes of the jury selection . . . shows that prospective jurors (some of whom were later excused on consent) were improperly questioned outside of the defendant's presence. . . ." Id. at 634. In affirming Pritchard's conviction, the Appellate Division did not find that the trial transcript revealed improper questioning of jurors. Additionally, that court specifically considered petitioner's claim that he had the right to be present at the side bar conferences, but found that "reversal on that ground is not required." Pritchard, 210 A.D.2d at 938. Simply put, the undersigned finds that factual differences exist between these two cases, and therefore Pritchard is not "similarly situated" to the defendant in Feliciano.
The Appellate Division did note that "the better practice" is to allow the defendant to be present at the side bar conference." Pritchard, 210 A.D.2d at 938.
Even if the court were to find that Pritchard was "similarly situated" to the defendant in Feliciano, the Court notes that Pritchard does not belong to any identifiable or suspect class such as race. Consequently, even if petitioner's claim was amenable to equal protection analysis, the Court need only find a rational basis for any allegedly erroneous ruling on the part of the courts below. Tarbe v. Berkel, Inc., 196 F.3d 136, 137 (2nd Cir. 1999). Because, as noted above, Pritchard's case is readily distinguishable from Feliciano, a rational basis for the different rulings between these two cases is apparent. Thus, petitioner's equal protection claim must fail.
Additionally, it is well settled that the Equal Protection Clause does not compel uniform decisions by state courts. Davis v. Behagen, 321 F. Supp. 1216, 1219 (S.D.N.Y.) (citations omitted), aff'd U.S. ex rel. Davis v. Behagen, 436 F.2d 596 (2nd Cir. 1970).
Viewing this ground for relief as one alleging a Due Process violation, the undersigned notes that to prevail on his due process claims, Pritchard must establish that (1) he possessed a liberty or property interest protected by the Constitution or a federal or state statute; and, (2) he was not provided with the requisite process before being deprived of that interest. Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). Clearly, petitioner had a liberty interest in avoiding his wrongful incarceration. However, it is equally clear that petitioner was afforded ample process — a trial, direct appeal and collateral challenges to his conviction — before he was, in fact, deprived of his liberty. The fact that Pritchard was ultimately unsuccessful in challenging his conviction does not indicate, in any way, that he was not afforded the requisite process. Because petitioner has not established either an equal protection or due process violation regarding the state court decisions that affirmed his conviction, the undersigned recommends that Ground one of Pritchard's petition be denied.
The undersigned notes that Pritchard's petition does not allege any substantive due process violation on the part of the state courts, i.e., that such courts intentionally obstructed a fundamental right of Pritchard. Franco v. Kelly, 854 F.2d 584, 589 (2nd Cir. 1988).
Moreover, as noted above, the fact that the defendant in Feliciano was successful in his appeal, and Pritchard was not, affords petitioner no basis for any constitutional claim, as the two cases are distinguishable.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Pritchard's habeas petition be denied and dismissed, and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail, and it is further
ORDERED, that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.
IT IS SO ORDERED.