Rodriguez v. People of the State of New York

Full title: CARLOS RODRIGUEZ aka ALBERTO CARRION, Petitioner, v. THE PEOPLE OF THE…

Court: United States District Court, S.D. New York

Date published: Feb 11, 2003

01 Civ. 9374 (KMW)(AJP) (S.D.N.Y. Feb. 11, 2003)

Opinion

01 Civ. 9374 (KMW)(AJP)

February 11, 2003

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge

Pro se petitioner Carlos Rodriguez, also known as Alberto Carrion, seeks a writ of habeas corpus from his July 15, 1996 conviction in Supreme Court, New York County, of criminal weapons possession and sentence as a violent predicate felon to three to six years imprisonment. (Pet. ¶¶ 1-4.) Rodriguez's habeas petition alleges that: (1) his conviction was obtained by use of evidence gained through an unconstitutional search and seizure (Pet. ¶ 12(A)), (2) he was denied effective assistance of appellate counsel because his assigned trial counsel failed to file notice of appeal (Pet. ¶ 12(B)), (3) he was denied his right to appeal as a result of trial counsel's failure to file notice of appeal (Pet. ¶ 12(C)), and (4) he was denied his constitutional right to a speedy trial (Pet. ¶ 12(D)).

At Rodriguez's sentencing, his trial counsel noted on the record that Rodriguez would be appealing. Defense counsel, however, did not file a notice of appeal for Rodriguez as required by First Department rules. The State has candidly conceded that Rodriguez's trial "counsel was ineffective in failing to file a notice of appeal." Rodriguez, however, did not take any steps to determine the status of his appeal for more than two years, until October 1998. The State argues, and this Court is constrained to agree, that Rodriguez's habeas petition is barred by the AEDPA's one year statute of limitations. Accordingly, for the reasons more fully set forth below, Rodriguez's petition should be DENIED as time barred.

PROCEDURAL BACKGROUND

Rodriguez's Conviction and Post-Trial Motions in State Court

Rodriguez was convicted of third degree criminal possession of a weapon, and on July 15, 1996 was sentenced as a violent predicate felon to three to six years imprisonment. (Dkt. No. 7: Answer Ex. E: 7/15/96 Sentencing Transcript at 2-3, 11.) During sentencing, Rodriguez's trial counsel, Richard Landes, stated on the record that "Mr. Rodriguez has asked me to place on the record that he is going to appeal this conviction." (Id. at 10.) Defense counsel Landes concluded the sentencing by stating on the record that he had "given the defendant notice of his right to appeal and have advised him of his appellate rights." (Id. at 12.) At the conclusion of the sentencing hearing, Landes handed Rodriguez a copy of the First Department's one-page form entitled "NOTICE OF RIGHT TO APPEAL," which provides:

NOTICE OF RIGHT TO APPEAL (Supreme Court)

Immediately after the pronouncement of sentence, where there has been a conviction by plea, or after trial, this form is to be given to the defense attorney. The defense attorney should then give it to his client and state on the record that the defendant has been given written notice of his right to appeal.

. . . .

TO THE DEFENDANT:

You have a right to appeal a conviction and/or sentence. . . .

In order to exercise this right, you must file a NOTICE OF APPEAL within thirty (30) days. This form can be obtained from the Clerk of the Court.

If you desire your present attorney to file this notice, you must fill out and give or mail to him the bottom part of this page.

. . . .

If you are without funds, after the notice of appeal has been filed, you must write to the Appellate Division requesting that counsel be assigned to you for the purpose of appeal. Send this letter to the Appellate Division, First Department, 27 Madison Avenue, New York, New York 10010.

You should request that you be granted permission to appeal upon the original record. You should mention that you are without funds with which to retain counsel or to purchase a transcript of the proceedings. State fully your financial circumstances, explaining why you cannot afford to hire an attorney for an appeal or purchase a transcript of the proceedings. You must write this letter yourself.

. . . .

TO MY ATTORNEY/OR THE COURT CLERK:

I wish to appeal my conviction and/or sentence; or the denial of my writ of Habeas Corpus. Please file a timely notice of appeal on my behalf.

Your Name ______________________________________________

Your Indictment Number or Docket Number ________ Date ________________

(Dkt. No. 12: State Reply Br. Ex. A: 1st Dep't "Notice of Right to Appeal" Form, emphasis added.) Rodriguez admits that he received a copy of the Notice of Right to Appeal from attorney Landes at the end of his sentencing hearing, he retained that Notice form when he left the sentencing courtroom, and he understood the form. (Dkt. No. 22:2/6/03 Hearing Tr. at 20, 31-32, 40-41.)

Under New York law, a convicted defendant has a right to appeal the conviction within thirty days after the imposition of sentence, C.P.L. § 460.10(1)(a), and a "defendant who fails to appeal within that time defaults his right to appeal." Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Neither Rodriguez nor his counsel filed a notice of appeal within that thirty-day period.

More than two years after his conviction, on October 9, 1998, Rodriguez mailed a motion to the First Department for assignment of counsel on appeal and for leave to appeal in forma pauperis. (00 Civ. 1399, Dkt. No. 5: Gioffre Aff. Ex. A: Rodriguez 10/9/98 Motions for Assignment of Counsel to Proceed In Forma Pauperis.) The State opposed the motion solely on the ground that it was untimely under C.P.L. § 460.30(1), which provides that a motion for an extension of the time to appeal "must be made with due diligence after the time for the taking of such appeal has expired, and in any case not more than one year thereafter." (Gioffre Aff. Ex. B: State Aff. in Response to Rodriguez Motion at ¶ 2, quoting C.P.L. § 460.30(1).) On May 20, 1999, the First Department, construing Rodriguez's motion as requesting an extension of time to file a notice of appeal, denied Rodriguez's motion, citing C.P.L. § 460.30(1). (Gioffre Aff. Ex. C: 5/20/99 1st Dep't Order.) The New York Court of Appeals denied leave to appeal on June 28, 1999 on the ground that the order was not appealable. (Gioffre Aff. Ex. D: 6/28/99 N.Y. Ct. App. Order.) See People v. Rodriguez, 93 N.Y.2d 978, 695 N.Y.S.2d 64 (1999).

On July 12, 1999, Rodriguez moved in the First Department for reargument and renewal of his motion. (Gioffre Aff. Ex. E: 7/12/99 Rodriguez Motion to Reargue Papers.) Rodriguez's reargument motion sought leave to file a late notice of appeal because his assigned counsel failed to comply with his request to file a notice of appeal, and asserted that Rodriguez was unaware of this failure until his motion for assignment of counsel and poor person relief was denied. (Gioffre Aff. Ex. E: Rodriguez 7/7/99 Aff. at 1-2.) Rodriguez's reargument motion relied in part on the Second Circuit's decision in Restrepo v. Kelly, 178 F.3d 634 (2d Cir. 1999). (Gioffre Aff. Ex. E: Rodriguez 7/12/99 Motion at 1 Rodriguez 7/7/99 Aff. at 2.) Rodriguez's supporting affidavit stated:

That at the time of Petitioner's sentence Petitioner advised the sentencing court that he wished to appeal his conviction.

That at the time of Petitioner's sentence his attorney, Richard Landes, Esq., who defended him at his trial, said that Mr. Rodriguez wished to appeal his conviction.

. . . .

That at all times after his sentencing Petitioner thought that his instructions to his attorney and to the sentencing court, in the presence of the District Attorney, pertaining to his request for an appeal to be filed in his behalf, had been complied with.

That he was advised in October, 1998, while lodged at the Westchester County Jail, and while working in the law library, that his appeal should have been decided and that he should request that counsel be assigned to perfect his appeal if necessary.

. . . .

That Petitioner did not know that a Notice of Appeal had never been filed, but assumed that an appeal just took a couple of years to be heard.

. . . .

That it was always Petitioner's understanding that this court requires trial counsel to file a Notice of Appeal and Request for Assignment of Counsel at the request of a client who has been convicted.

(Gioffre Aff. Ex. E: Rodriguez 7/7/99 Aff. at 1-2.) In response, the State pointed out that the sentencing transcript (quoted at page 2 above) reflected only Rodriguez's intention to appeal, not any instruction to his trial counsel to file the notice of appeal. (See Gioffre Aff. Ex. F: State Aff. in Response ¶ 5.)

The First Department denied Rodriguez's reargument motion on October 5, 1999 without opinion or explanation. (Gioffre Aff. Ex. G: 10/5/99 1st Dep't Order.) The New York Court of Appeals denied leave to appeal on December 30, 1999 on the ground that the order was not appealable. (Gioffre Aff. Ex. H: 12/30/99 N.Y. Ct. App. Order.) See People v. Rodriguez, 94 N.Y.2d 866, 704 N.Y.S.2d 542 (1999).

Rodriguez's Prior Federal Habeas Petition and First Department Coram Nobis Application

Rodriguez's prior federal habeas corpus petition, dated January 10, 2000 and received by the Court's pro se office on January 13, 2000 (00 Civ. 1399, Dkt. No. 1: Pet. at 2, 7), alleged the same four claims as his current petition, including that he was denied effective assistance of appellate counsel because assigned trial counsel failed to file a notice of appeal (id. ¶ 12(B)), and that he was denied his right to appeal as a result of trial counsel's failure to file a notice of appeal (id. ¶ 12(C)).

On July 11, 2000, this Court issued a Report and Recommendation to deny Rodriguez's original habeas petition without prejudice for failure to exhaust the ineffective assistance of appellate counsel claim, and advised Rodriguez to exhaust that claim by applying to the First Department for a writ of error coram nobis. Rodriguez v. People of the State of New York, 00 Civ. 1399, 2000 WL 962748 at *2 n. 3 (S.D.N.Y. July 11, 2000) (Peck, M.J.).¹ Judge Wood adopted my Report and Recommendation in its entirety (00 Civ. 1399, Dkt. No. 7:9/26/00 Order), and Judgment was entered on October 2, 2000 dismissing the petition "without prejudice to petitioner exhausting his claim of ineffective assistance of counsel in state court" (00 Civ. 1399, Dkt. No. 8: 9/29/00 Judgment).

1 See Dumas v. Kelly, 105 F. Supp.2d 66, 73-74 (E.D.N.Y. 2000) (claim that trial counsel was ineffective for failing to file notice of appeal should be raised in a writ of error coram nobis for ineffective appellate counsel, not in a C.P.L. § 440.10 motion for ineffective trial counsel).

As a result of the Court's Report and Recommendation (and even before Judge Wood adopted it), Rodriguez applied to the First Department on or about August 11, 2000 for a writ of error coram nobis on grounds of ineffective assistance of appellate counsel, and requested "an Order permitting Petitioner to perfect his appeal, or that Petitioner be given time to file a formal Notice of Appeal." (Dkt. No. 7: Answer Ex. B: Rodriguez 8/11/00 Coram Nobis Papers.) Rodriguez's coram nobis affidavit asserted that "at sentencing [Rodriguez] not being well versed in the study of Law asked of his attorney, Richard Landes, to place on the sentencing minutes that [Rodriguez] wished to appeal his conviction, thinking and believing that doing so would guarantee [Rodriguez] an undisputed appeal from his conviction." (Answer Ex. B: Rodriguez 8/11/00 Aff. ¶ 4.)

The State opposed Rodriguez's coram nobis application on grounds that: (1) "[a]s there has been no direct appeal and defendant is time barred from raising an appeal, defendant's application for assignment of counsel is moot"; and (2) if Rodriguez "has any issue with the effectiveness of his trial counsel, that issue must be brought under a CPL § 440.10 motion" in the trial court. (Dkt. No. 7: Answer Ex. C: State Opp. Aff. at ¶ 2.) On May 8, 2001, the First Department denied Rodriguez's coram nobis petition, citing the leading First Department case in ineffective assistance claims, People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987), appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988), and also cryptically noted that "Defendant is barred from seeking coram nobis relief with respect to his attempts to perfect." (Answer Ex. D: 5/8/01 1st Dep't Order.)

Rodriguez's Current Federal Habeas Petition

Rodriguez's current federal habeas petition is dated May 17, 2001 — just a few days after the First Department denied his coram nobis application. (Pet. at 2.)² Rodriguez's current habeas petition alleges the same claims as his prior habeas petition, that: (1) his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure (Pet. ¶ 12(A)), (2) he was denied effective assistance of appellate counsel because his assigned trial counsel failed to file a notice of appeal (Pet. ¶ 12(B)), (3) he was denied his right to appeal as a result of trial counsel's failure to file a notice of appeal (Pet. ¶ 12(C)), and (4) he was denied his constitutional right to a speedy trial (Pet. ¶ 12(D)).

2 Rodriguez's current petition was filed with the United States District Court for the Northern District of New York on May 23, 2001, subsequently transferred to this District, assigned to Judge Wood, and referred to me.

The State moved to dismiss on grounds that: (1) Rodriguez's petition was untimely under the AEDPA, 28 U.S.C. § 2244(d) (Dkt. No. 8: State Br. at 4-9); (2) the claims for denial of the right to appeal and denial of effective assistance of appellate counsel are procedurally barred under C.P.L. § 460.30(1), which the State contends is an adequate and independent state procedural bar (State Br. at 9-20); and (3) the claims for unconstitutional search and seizure and denial of a speedy trial were unexhausted but procedurally barred because of Rodriguez's failure to raise them on direct appeal (id. at 20 n. 7.).

By order dated June 7, 2002, this Court appointed counsel for Rodriguez pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A, and ordered counsel to file supplementary papers regarding the "tension, if not conflict, between (1) the Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000), and the Second Circuit's decision in Restrepo v. Kelly, 178 F.3d 634, 639-41 (2d Cir. 1999), and (2) New York's limitations on motions to extend the time to take an appeal, N.Y. C.P.L. § 460.30 (McKinney's)." (Dkt. No. 9:6/7/02 Order; see also Dkt. No. 11:7/16/02 Order.) The parties submitted briefs taking opposing positions but shedding little additional light on the relevant issue. (Dkt. Nos. 10, 12.)

The Court ordered Rodriguez and his trial counsel, Richard Landes, to submit affidavits "describing in detail all communications (including conversations or correspondence) trial counsel had with Rodriguez relating to a possible appeal . . . [including] whether counsel stated that he would file notice of appeal and/or prosecute the appeal. . . ." (Dkt. No. 13:10/10/02 Order at 5-6.) Counsel Landes responded with an affidavit stating:

4. I did not file a notice of appeal on behalf of Mr. Rodriguez. However, Mr. Rodriguez did not instruct me to file a notice of appeal on his behalf. It is not my practice to file notices of appeal on behalf of clients following sentencing in New York County. Instead, I hand clients the printed "Notice Of Right To Appeal" form provided by the Court, which explains how a defendant files a notice of appeal. I then tell them what to do and state, on the record, that I have given them the notice and discussed it with them. A review of the minutes of this sentencing indicates that I did that here.

5. I have, on rare occasion, filed a notice of appeal on behalf of a client who is sentenced in New York County. In retrospect, based on Mr. Rodriguez' mental condition and in an abundance of caution, I probably should have filed his notice of appeal for him instead of handing him the pre-printed form for him to do himself. I do not have an independent recollection of my conversation with Mr. Rodriguez at his sentencing. I do know, however, that I would never disregard a client's instruction to file a notice of appeal on his or her behalf, nor have I ever in the past.

(Dkt. No. 16: Landes 10/17/02 Aff. ¶¶ 4-5, emphasis added.) Rodriguez responded by stating:

2. That [Rodriguez] told his trial attorney to place on the record that [Rodriguez] wished to appeal his conviction believing that such would guarantee [Rodriguez] an undisputed appeal.

3. That before sentencing [Rodriguez's] trial attorney's only discussion concerning an appeal was that [Rodriguez's] appeal had merit and that it would be wise to appeal conviction.

3. That besides the above nothing else was discussed concerning an appeal after sentencing.

4. That [Rodriguez] who is not versed in the study of law was under the impression that once it was orally placed on the "Sentencing" minutes [his] trial attorney would prosecute the appeal.

5. That [Rodriguez] was under a laypersons' belief that an appeal takes two (2) years to commence and [Rodriguez] filed for appointment of counsel once he became aware of the fact that he was not receiving any notification from trial attorney once the two (2) years were up.

(Dkt. No. 14: Rodriguez 10/28/02 Aff. ¶¶ 2-5, emphasis added.)

After conducting additional research of its own, the Court directed the parties to explain how the First Department's Rules of Practice (not cited by either side) affected Rodriguez's habeas petition:

Both now and at the time of Rodriguez's sentencing on July 15, 1996, the Rules of Practice of the First Department provided that "immediately after" a criminal defendant was convicted and sentenced, his attorney had "the duty . . . to ascertain whether defendant . . . wishes to appeal . . ., and, if so, to serve and file the necessary notice of appeal from a judgment of conviction . . . ." N.Y. Comp. Codes R. Regs. tit. 22, § 606.5(b)(1) (1996). Counsel for both parties are ordered to explain in writing by December 18, 2002, how the above Rule of Practice may affect the disposition of Rodriguez's habeas petition. The parties' submissions should include, but not be limited to, an explanation of the interplay between the above Rule of Practice and the printed form entitled "NOTICE OF RIGHT TO APPEAL" that Rodriguez's trial counsel asserted that he handed to Rodriguez after his sentencing.

(Dkt. No. 18:12/12/02 Order, emphasis added.)

In response, the State conceded that Rodriguez's trial counsel was ineffective:

Respondent concedes that petitioner took sufficient action to avoid the conclusion that he waived his right to appeal by inaction; he asked his attorney to place his intention to take an appeal on the record and counsel did so. If that were the only question here, respondent would be constrained to agree that counsel was ineffective in failing to file a notice of appeal and that the petition should be granted. Thus, the First Department's rule of practice and the notice of the right to appeal form would be irrelevant if this court were to reach the merits of petitioner's claim.

(Dkt. No. 20: State 12/17/02 Letter at 2, emphasis added.) The State argued, however, that Rodriguez's habeas petition nevertheless should be dismissed both because Rodriguez: (1) failed to move for leave to file a late notice of appeal within one year and thirty days of his conviction, as required under C.P.L. § 460.30(1), and (2) failed to file his federal habeas petition within one year of the date his conviction became "final," as required under 28 U.S.C. § 2244(d)(1)(A). (State 12/17/02 Letter at 2-3.) According to the State, "that [Rodriquez] had been advised of his appellate rights and had been handed written notice of his right to appeal makes abundantly plain that nothing other than his own inaction is the reason he failed to comply with the one year and thirty day limit in moving for leave to file a late notice of appeal." (Id. at 3.)³

3 Rodriguez's appointed habeas counsel argued that "whatever misperception [Rodriguez] proceeded under, it was occasioned by Mr. Landes' failure to file the Notice of Appeal, or to follow the [First Department's] Rules of Practice. . . . Thus, the [e]ffect of the Rules of Practice compel the conclusion that had the Rules been observed, the Notice of Appeal should have been filed and thus, Mr. Rodriguez's Petition for a Writ of Habeas Corpus should be granted." (Dkt. No. 19: Lewis 12/16/02 Letter at 2.) Rodriguez's habeas counsel's letter, however, did not address the C.P.L. § 460.30(1) or AEDPA time limitations.

On February 6, 2003 the Court heard testimony from Rodriguez regarding the specifics of Rodriguez's appeal. (Dkt. No. 22:2/6/03 Hearing Transcript; see Dkt. No. 21:1/16/03 Order Scheduling Hearing.)⁴ The Court found Rodriguez to be well-spoken and reasonably intelligent. However, because of his self-proclaimed ignorance of legal procedures (despite his numerous prior convictions), Rodriguez overly relied upon often erroneous advice from other inmates.

4 Attorney Landes was directed to be present at the hearing but could not attend because he had broken his leg and ankle and was in a long leg cast. (1/31/03 Landes Letter.) At the conclusion of the February 6, 2003 hearing, counsel for Rodriguez and the State agreed that in light of Landes' affidavit submission and Rodriguez's hearing testimony, there was no need to have Landes testify. (2/6/03 Hearing Tr. at 50-51.)

There is no question from the hearing testimony that Rodriguez truly believed that the statements on the record at sentencing were sufficient, by themselves or as requiring attorney Landes to file a Notice of Appeal, to commence his appeal. Indeed, at a February 4, 1997 parole hearing, Rodriguez told the parole board that he had an appeal pending:

Q. . . . I do note from your folder that you're currently serving a criminal possession of a weapon, third, charge, that you've been sentenced to three to six years; correct?

A [Rodriguez]. Yes.

. . .

Q. And you went to trial and you were found guilty?

A. Yes.

Q. Okay. Do you have any appeals pending on that?

A. Yes.

(Dkt. No. 22:2/6/03 Hearing, Petitioner Ex. A: 2/4/97 Parole Hearing Tr. at 2-3; see 2/6/03 Hearing Tr. at 3-4.)

Nevertheless, it is also clear that while Rodriguez believed that his appeal was pending, his failure to apply to the First Department for appointment of counsel, which would have alerted him to the absence of a Notice of Appeal, was the result of his failure to follow the instructions in the Notice of Right to Appeal form (quoted at page 3 above) that he admittedly received from attorney Landes at sentencing — and not because he was uninformed or misled by counsel but because of bad information from the "prison grapevine." (See 2/6/03 Hearing Tr. at 15, 18, 20.) Specifically, Rodriguez testified that Landes advised him of his appeal rights before sentencing, and told Rodriguez that the speedy trial issue was a good ground for appeal. (Id. at 16, 42.) Landes did not tell Rodriguez that Landes would file a Notice of Appeal or that Landes would represent him on appeal. (Id. at 37-38.) Rodriguez did not tell Landes to file a Notice of Appeal. (Id. at 21, 42-43.) All Rodriguez told Landes was that Landes should put on the record at sentencing that Rodriguez would be appealing. (Id. at 16, 21, 42-43.) Rodriguez testified that another inmate had informed him that if that was put on the record, that would "guarantee" Rodriguez's appeal rights and Rodriguez would not need to file a notice of appeal or a request for counsel or do anything else. (Id. at 15, 31-33, 44-45.) Rodriguez never asked Landes whether that information was correct. (Id. at 15.)

Landes gave Rodriguez the Notice of Right to Appeal form at the sentencing hearing. (Id. at 20, 31-32, 40; see also page 4 above.) Rodriguez admits that he took the form with him when he left the sentencing courtroom, and that he understood the form. (2/6/03 Hearing Tr. at 20, 40-41.) Indeed, Rodriguez was familiar with the form: he filled one out just a few months before, along with an application for counsel and to proceed in forma pauperis, when he appealed the state court's denial of a writ of habeas corpus in connection with that same case. (Dkt. No. 22:2/6/03 Hearing, State Ex. 2: Rodriguez IFP application, Ex. 3:5/28/96 Rodriguez's completed Notice of Right to Appeal form; see also 2/6/03 Hearing Tr. at 26-31, 33.)

Rodriguez never spoke to attorney Landes after his sentencing; Rodriguez never tried to contact Landes. (2/6/03 Hearing Tr. at 14-15, 17, 43-44.)

Rodriguez testified that he did not take any further action in connection with his appeal because he assumed attorney Landes was working on the appeal, and the prisoner "grapevine" had informed him that appeals take two years. (2/6/03 Hearing Tr. at 17-19, 34.) Rodriguez never spoke to Landes about the timing of an appeal. (Id. at 18, 44.) Rodriguez was in the general population in prison, not SHU, keeplock or the prison hospital. (Id. at 15.) Although Rodriguez was released on parole for a time, he never contacted Landes (id. at 14-15); if Rodriguez gave it any thought, he assumed Landes somehow would find him (id. at 36-37). Rodriguez was released on parole but three months later he was arrested and charged with another crime while on parole (id. at 4-5, 10-11), and in October 1998, while in the Westchester County Jail, an inmate told Rodriguez that since he had not heard from Landes, he should apply to the First Department for appointment of counsel. (Id. at 19, 35-36.) Rodriguez did not try to contact Landes before writing to the First Department. (Id. at 15, 19, 36.)

ANALYSIS

I. INTRODUCTION: TRIAL COUNSEL'S OBLIGATION REGARDING NOTICE OF APPEAL

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.) ( cases cited therein). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064. Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064.

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000), the Supreme Court addressed "the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel's failure to file a notice of appeal without [the criminal defendant's] consent." Id. at 473, 120 S.Ct. at 1032-33. The Supreme Court held that the two part Strickland v. Washington test applies to such claims. Roe v. Flores-Ortega, 528 U.S. at 476-77, 120 S.Ct. at 1034. While the Supreme Court in Roe refused to adopt a per se rule, it held that where a client instructs a lawyer to file a notice of appeal, counsel must do so:

We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel's failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes. At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently.

Roe v. Flores-Ortega, 528 U.S. at 477, 120 S.Ct. at 1035 (citations omitted, emphasis added). Where the defendant neither instructs counsel to file an appeal nor instructs that no appeal be taken, counsel must consult with the defendant:

In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term "consult" to convey a specific meaning — advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal. . . . If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?

. . . .

We . . . hold that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.

Roe v. Flores-Ortega, 528 U.S. at 478-80, 120 S.Ct. at 1035-36.

Finally, to meet Strickland's prejudice prong, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Roe v. Flores-Ortega, 528 U.S. at 484, 120 S.Ct. at 1038.

Here, it is undisputed that attorney Landes consulted with Rodriguez about an appeal, and that Rodriguez informed Landes that he wished to appeal. (See pages 2 13 above.) Indeed, attorney Landes stated on the record at sentencing that "Rodriguez has asked [counsel] to place on the record that he is going to appeal this conviction." (Dkt. No. 7: Answer Ex. E: 7/15/96 Sentencing Tr. at 10.) What happened next was the result of confusion: based on information from other inmates, Rodriguez thought that statement on the record was sufficient to "guarantee" his appeal rights (see pages 7 13 above), while attorney Landes felt that giving Rodriguez the Notice of Right to Appeal form was sufficient (see pages 9-10 above).

It is standard practice in New York courts to give criminal defendants the Notice of Right to Appeal form at the time of sentencing:

Pursuant to a directive of the Appellate Division, it has been the uniform practice for some years to notify defendants on the record at the time of sentence of their right to appeal. Since at least July 8, 1975 there has been a directive by the Chief Clerk to the Clerks of the Supreme Court, Criminal Branch in the First Judicial District and the Criminal Court, New York and Bronx Counties, that immediately after the pronouncement of sentence, notice of the right to appeal shall be given to the attorney for the defendant and that "the defense attorney should then give this to his client and state on the record that the defendant has been given written notice of his right to appeal."

People v. Salinas, 88 A.D.2d 553, 553-54, 450 N.Y.S.2d 789, 789-90 (1st Dep't 1982).

The First Department's Rules of Practice, however, required attorney Landes to do more than just give Rodriguez the Notice of Right to Appeal form. Both now and at the time of Rodriguez's sentencing on July 15, 1996, the Rules of Practice of the First Department provided that "immediately after" a criminal defendant was convicted and sentenced, his attorney had "the duty . . . to ascertain whether defendant . . . wishes to appeal . . ., and, if so, to serve and file the necessary notice of appeal from a judgment of conviction. . . ." N.Y. Comp. Codes R. Regs. tit. 22, § 606.5(b)(1) (1996); see also United States v. McMann, 417 F.2d 648, 653 (2d Cir. 1969) (en banc) (Pursuant to NYCCRR § 606.5, "[c]ounsel is specifically required to ascertain whether the defendant wishes to appeal, and, if so, to serve and file the necessary notice of appeal."), cert. denied, 397 U.S. 925, 90 S.Ct. 929 (1970). Thus, although Rodriguez did not specifically and explicitly instruct attorney Landes to file a notice of appeal, Rodriguez clearly indicated a desire and intent to appeal, and under the First Department Rules (and directly or by reasonable extension of the Supreme Court's Flores-Ortega decision) that was enough to trigger attorney Landes' duty to file a notice of appeal (and not just to give an instruction form to Rodriguez).

As a result of this record, even the State concedes that Rodriguez's counsel was ineffective:

Respondent concedes that [Rodriguez] took sufficient action to avoid the conclusion that he waived his right to appeal by inaction; he asked his attorney to place his intention to take an appeal on the record and counsel did so. If that were the only question here, respondent would be constrained to agree that counsel was ineffective in failing to file a notice of appeal. . . .

(Dkt. No. 20: State 12/17/02 Letter at 2.)⁵

5 Roe did not specifically address whether an attorney who consults with his client and knows that his client wishes to appeal but the client does not specifically and explicitly instruct the attorney to file a notice of appeal acts reasonably by merely giving the defendant the Notice of Right to Appeal form. In light of the State's concession, and the fact that Rodriguez's petition is time barred, the Court need not specifically hold that counsel is constitutionally ineffective if counsel does not prepare and file a notice of appeal in that situation (although clearly required by the First Department's Rules to do so).

The ultimate substantive issue, however, is not whether counsel's ineffectiveness excused the failure to file a notice of appeal within 30 days, but rather whether counsel's initial ineffectiveness also excused Rodriguez's failure to file a motion for an extension of the time to file a notice of appeal within the one year and one month deadline of C.P.L. § 460.30. That raises issues as to whether C.P.L. § 460.30 is an adequate and independent state ground and whether that deadline would be constitutionally permissible on the facts of this case. Cf. Restrepo v. Kelly, 178 F.3d 634, 641 (2d Cir. 1999) ("[W]e cannot agree that [C.P.L. § 460.30] constitutes an 'adequate' state ground for barring federal habeas review here, because the proceeding at issue is [petitioner's] direct appeal from his conviction. As to that appeal, he had a constitutional right to be represented by counsel, a right that would be denied if the State were allowed to hold him in default for not seeking an extension of time pro se.").

The Supreme Court has held that courts should avoid unnecessary adjudication of constitutional issues. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483 (1936) (Brandeis, J., concurring) ("[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter."); accord, e.g., Allstate Ins. Co. v. Serio, 261 F.3d 143, 149-50 (2d Cir. 2001) ("It is axiomatic that the federal courts should, where possible, avoid reaching constitutional questions."). Where a statutory or nonconstitutional basis exists for reaching a decision, as it does here, it is not necessary to reach the constitutional issue. See, e.g., Montenegro v. United States, 248 F.3d 585, 590-93 (7th Cir. 2001) (declining to decide whether counsel erred by failing to file notice of appeal as instructed, and instead holding that petitioner was time-barred for failing to exercise due diligence under 28 U.S.C. § 2255(4) in determining that appeal had not been filed), overruled on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)).

The Court thus turns to the AEDPA statute of limitations issue.

II. RODRIGUEZ'S PETITION IS TIME-BARRED UNDER THE AEDPA

The Antiterrorism and Effective Death Penalty Act ("AEDPA") established a one-year statute of limitations for habeas corpus petitions:

(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; . . .

(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.

28 U.S.C. § 2244(d)(1)-(2).

Under New York law, a convicted defendant has a right to appeal his conviction within thirty days after the imposition of sentence, C.P.L. § 460.10(1)(a), and a "defendant who fails to appeal within that time defaults his right to appeal." Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Under 28 U.S.C. § 2244(d)(1)(A), Rodriguez's state court judgment thus became "final" on August 14, 1996, when the 30-day period for filing a state notice of appeal from his judgment of conviction expired. See, e.g., Bethea v. Girdich, 293 F.3d 577, 578-79 (2d Cir. 2002) (citing C.P.L. § 460.10(1)). Ordinarily under the AEDPA, Rodriguez would have one year from August 14, 1996 — i.e., until August 14, 1997 — in which to file a federal habeas petition. Id.

Rodriguez filed nothing in state court until October 9, 1998, when he moved for appointment of counsel and IFP status, which the First Department construed as a motion for an extension of time to file a notice of appeal. (00 Civ. 1399, Dkt. No. 5: Gioffre Aff. Ex. A: Rodriguez 10/9/98 Motions for Assignment of Counsel to Proceed In Forma Pauperis; Gioffre Aff. Ex. C: 5/20/99 1st Dep't Order.) The State therefore argues that, having missed the AEDPA's one-year deadline, Rodriguez's petition is time-barred. Given Rodriguez's assertion that he thought his trial counsel had filed a notice of appeal, the Court will consider whether, under § 2244(d)(1)(D), "the factual predicate" of Rodriguez's claims could not have been "discovered through the exercise of due diligence" prior to October 9, 1998, and whether the AEDPA limitations period subsequently was tolled during the pendency of Rodriguez's state appeal and initial federal habeas filing.

A. Rodriguez Cannot Satisfy the Due Diligence Requirement of 22 U.S.C. § 2244(d)(1)(D)

In Wims v. United States, 225 F.3d 186, 188-91 (2d Cir. 2000), the Second Circuit described the appropriate methodology for determining "due diligence" tolling under the AEDPA in a case, like here, where the petitioner claimed that his attorney's failure to appeal constituted ineffective assistance of counsel. Since Wims involved a federal conviction, the Second Circuit applied 28 U.S.C. § 2255, which, like 28 U.S.C. § 2244(d)(1), provides that the limitations period shall run from the latest of four events, one of which is "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Wims v. United States, 225 F.3d at 188 (applying the parallel provision of 28 U.S.C. § 2255(4)). The Second Circuit explained:

The proper task in a case such as this one is to determine when a duly diligent person in petitioner's circumstances would have discovered that no appeal had been filed. After that date, petitioner was entitled to further delay (whether in actually making the discovery, or in acting on a previously made discovery, or for any other reason whatsoever), so long as he filed his petition within one year of the date in which the discovery would have been made in the exercise of due diligence.

Wims v. United States, 225 F.3d at 190 (fns. omitted).

This Court therefore must answer two questions: (1) on what date would "a duly diligent person in petitioner's circumstances . . . have discovered that no appeal had been filed," Wims v. United States, 225 F.3d at 190 (the "Due Diligence Discovery Date"); and (2) did Rodriguez file his current habeas petition within one year after the Due Diligence Discovery Date, giving effect to any available statutory and equitable tolls for his state proceeding and prior federal habeas petition.

The Due Diligence Discovery Date is difficult to ascertain, as it necessarily relies on relatively amorphous notions of reasonableness. By contrast, determining how long the statute tolled during Rodriguez's state court proceedings and initial habeas filing is more certain, requiring the application of settled precedent. Accordingly, the Court will work backwards: giving due consideration to the tolling caused by Rodriguez's state court proceedings and prior federal habeas filing, the Court will calculate the date falling one year prior to the May 17, 2001 current habeas filing (the "One Year Date"). If the Due Diligence Discovery Date (the date on which a duly diligent person in Rodriguez's circumstances would have discovered that no notice of appeal had been filed) occurred prior to the One Year Date, then Rodriguez's petition is untimely.

1. Working Backward from the May 17, 2001 Date of Rodriguez's Current Habeas Petition, and Considering the Tolling Effect of Rodriguez's State Court Proceedings and Prior Habeas Petition, March 6, 1998 is One Year Before the May 17, 2001 Current Habeas Filing Date

The tolling analysis begins with Rodriguez's October 9, 1998⁶ filing of a motion for assignment of counsel and for leave to appeal in forma pauperis. (00 Civ. 1399, Dkt. No. 5: Gioffre Aff. Ex. A: Rodriguez 10/9/98 Motions for Assignment of Counsel to Proceed In Forma Pauperis.)⁷ On May 20, 1999, the First Department, construing Rodriguez's motion as requesting an extension of time to file a notice of appeal pursuant to C.P.L. § 460.30, denied the motion. (Gioffre Aff. Ex. C: 5/20/99 1st Dep't Order.) The Second Circuit has held that "that the filing of a motion to extend the time to appeal or to file a late notice of appeal does not 'restart' the AEDPA limitation period." Bethea v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002). The limitations period would be tolled, however, during the pendency of Rodriguez's October 9, 1998 motion. See, e.g., Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2138 (2002) ("[A]n application is pending [for AEDPA tolling purposes] as long as the ordinary state collateral review process is 'in continuance' — i.e., 'until the completion of' that process."); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) ("[P]roper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run."), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000).⁸

6 Rodriguez's affidavit of service states that he mailed the motion on October 9, 1998 (00 Civ. 1399, Dkt. No. 5: Gioffre Aff. Ex. A: Rodriguez 10/9/98 Motions for Assignment of Counsel to Proceed In Forma Pauperis), the State's opposition in state court lists the operative date as October 15, 1998 (Gioffre Aff. Ex. B at 1), while the State's habeas brief lists the date as "on or about October 7, 1998" (Dkt. No. 8: State's Br. at 9). The difference between the dates is not significant in this case, and the Court will utilize the October 9, 1998 date.

7 The State concedes that "petitioner did not know that his attorney had not filed a notice of appeal until the People's response to his poor person's application . . . ." (Dkt. No. 12: State Reply Br. at 3.)

8 The Bethea Court also noted its "doubt" that the petitioner's motion in that case "to extend his time to appeal and for reargument tolled the limitations period," "as they were not themselves 'properly filed application[s] for state post-conviction or other collateral review,' . . ." Bethea v. Girdich, 293 F.3d at 579 (quoting Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999), aff'd, Artuz v. Bennett, 531 U.S. 4, 8-11, 121 S.Ct. 361 (2000)). The Bethea Court presumably based this opinion on the 13-month limitation on filing such motions. See C.P.L. § 460.30.1. Here, in contrast to Bethea, however, Rodriguez moved for appointment of counsel, assuming (erroneously) that a notice of appeal already had been filed; the First Department construed it as a motion to extend the time to appeal. Rodriguez's motion thus appears to have been "properly filed" under the AEDPA. In any event, the Court gives Rodriguez the benefit of the doubt in light of its ultimate conclusion.

On June 28, 1999, the New York Court of Appeals denied leave to appeal the First Department's May 20, 1999 decision on the ground that such collateral orders are not appealable. (00 Civ. 1399, Dkt. No. 5: Gioffre Aff. Ex. D: 6/28/99 N.Y. Ct. App. Order.) The AEDPA thus did not toll during the pendency of that appeal, but began to run on May 20, 1999. Cf. Hizbullahankhamon v. Walker, 255 F.3d 65, 70-72 (2d Cir. 2001) ("'no application for leave to appeal . . . will lie from the order of the Appellate Division denying an application for a writ of error coram nobis'"), cert. denied, 122 S.Ct. 2593 (2002).

Rodriguez's July 12, 1999 motion for reargument of the May 20, 1999 order did, however, toll the statute. Motions for reargument before the First Department are governed by C.P.L. § 470.50(1) and N.Y. Comp. Codes R. Regs., tit. 22, § 600.14(a). Because New York's procedural rules allow motions for reargument, such a motion is "properly filed," regardless of the merits (or lack thereof) of such a motion. See, e.g., Artuz v. Bennett, 531 U.S. at 8-9, 121 S.Ct. at 364 ("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. . . . [T]he question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar."). Thus, Rodriguez is entitled to a toll for the period from July 12, 1999 to October 5, 1999, during which time he sought reargument of the First Department's May 20, 1999 denial of his motion for an extension of time to file a notice of appeal. See Gomez v. Duncan, 02 Civ. 0846, 2002 WL 1424584 at *3-4 (S.D.N.Y. July 1, 2002) (Peck, M.J.) (tolling period during which petitioner sought reargument of the First Department's denial of leave to appeal from the trial court's denial of his C.P.L. § 440 motion); but see Hizbullahankhamon v. Walker, 255 F.3d at 73 n. 6 (questioning whether the First Department permits motions to reargue coram nobis motions).⁹ Again, however, because the First Department's October 5, 1999 Order was not appealable (00 Civ. 1399, Dkt. No. 5: Gioffre Aff. Ex. H: 12/30/99 N.Y. Ct. App. Order), Rodriguez's appeal to the New York Court of Appeals did not further toll the AEDPA's limitations period. See Hizbullahankhamon v. Walker, 255 F.3d at 70-72.

9 22 N.Y.C.R.R 600.14 provides that motions for reargument of First Department orders "shall be made within 30 days after the appeal has been decided . . . ." Because the First Department's original decision was dated May 20, 1999, and Rodriguez's motion for reargument was dated July 12, 1999, the reargument motion could have been denied as untimely. Because, however, the State did not raise the timeliness issue either before the First Department (00 Civ. 1399, Dkt. No. 5: Gioffre Aff. Ex. F: State Aff. in Response) or in opposition to Rodriguez's habeas petition (Dkt. Nos. 8, 12), and the First Department seems to have denied the reargument motion on the merits rather than on procedural grounds (Gioffre Aff. Ex. G: 10/5/99 1st Dep't Order), the possible tardiness of the motion will not be considered on the instant AEDPA tolling issue.

The AEDPA time period ran from October 5, 1999 through January 10, 2000, the date of Rodriguez's initial federal habeas petition.¹⁰ (00 Civ. 1399, Dkt. No. 1: Pet. at 2, 7.) Rodriguez's initial habeas petition was ultimately dismissed pursuant to a judgment entered October 2, 2000. (00 Civ. 1399, Dkt. No. 8: Judgment.) As the State correctly points out, the Supreme Court recently held that the phrase "State post-conviction or other collateral review" in 28 U.S.C. § 2244(d)(2) does not include federal habeas corpus petitions, and thus the one-year limitations period is not statutorily tolled during the pendency of a federal habeas petition. Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 2129 (2001), rev'g, Walker v. Artuz, 208 F.3d 357, 361-62 (2d Cir. 2000); accord, e.g., Bethea v. Girdich, 293 F.3d at 578 (AEDPA statute of limitations is not tolled "during the pendency of an earlier habeas petition filed in federal court.").

10 Under Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382 (1988), a pro se prisoner's papers are considered filed when they are given to prison officials for forwarding to the court. See, e.g., Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *9 n. 7 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.) (citing cases), report rec. adopted by, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.). "Absent evidence to the contrary, the Court assumes that [Rodriguez] gave his petition to prison officials for mailing on the date he signed it," January 10, 2000. Rhodes v. Senkowski, 82 F. Supp.2d 160, 165 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.).

However, under appropriate circumstances, the AEDPA's one-year statute of limitations is subject to equitable tolling. See, e.g., Smith v. McGinnis, 208 F.3d at 17. The AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar." Id. Equitable tolling of the one-year limitations period 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, 121 S.Ct. 404 (2000). "'[T]he party seeking equitable tolling,'" here Rodriguez, "'must have acted with reasonable diligence throughout the period he seeks to toll.'" Warren v. Garvin, 219 F.3d at 113 (quoting Smith v. McGinnis, 208 F.3d at 17).

Here, dismissal of Rodriguez's initial habeas petition was premised on prior Second Circuit decisions tolling the AEDPA limitations period during the pendency of prior federal habeas petitions. See, e.g., Walker v. Artuz, 208 F.3d at 361-62. The Supreme Court's subsequent decision to the contrary in Duncan v. Walker, 533 U.S. at 181-82, 121 S.Ct. at 2129, can constitute the necessary "extraordinary circumstances" to equitably toll the statute. See, e.g., Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir. 2002) (remanding for consideration of whether AEDPA's statute of limitations should be equitably tolled in light of Duncan v. Walker); De Jesus v. Miller, 215 F. Supp.2d 410, 412-13 (S.D.N.Y. 2002) (equitable tolling for period of prior federal habeas petition); Dewindt v. Artuz, No. 97-CV-2138, 2002 WL 1034853 at *4-5 (E.D.N.Y. May 23, 2002) ("The Court will not permit [petitioner] to be prejudiced because the Court dismissed his petition instead of holding it in abeyance [pursuant to Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001)]. The Court's failure to stay the petition, under the unique facts of this case, constitutes extraordinary circumstances."); Jimenez v. Walker, 166 F. Supp.2d 765, 772 (E.D.N.Y. 2001) (trial court's dismissal of petitioner's first habeas corpus petition without prejudice combined with Duncan v. Walker deemed "extraordinary circumstances" justifying equitable tolling). Further, Rodriguez acted with reasonable diligence from the time his initial petition was dismissed until he filed the current habeas petition.¹¹ The Court thus finds the AEDPA's limitations period tolled during the pendency of Rodriguez's initial habeas petition through the filing of his present habeas petition.¹²

11 Because of this Court's Report and Recommendation, even prior to the official dismissal of his initial habeas petition, Rodriguez applied to the First Department on or about August 16, 2000 for a writ of error coram nobis. (Dkt. No. 7: Answer Ex. B.) Thus, even absent equitable tolling, the statute would have remained tolled from August 16, 2000 until the First Department denied Rodriguez's coram nobis application on May 8, 2001 (Answer Ex. D). Rodriguez filed his current federal habeas petition soon thereafter, on May 17, 2001. (Pet. at 2.)

12 Absent equitable tolling, the Court could reinstate Rodriguez's earlier habeas petition under Fed.R.Civ.P. 60(b) in light of the Second Circuit's intervening decision in Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 534 U.S. 1015, 122 S.Ct. 506 (2001), which held that if "an outright dismissal could jeopardize the timeliness of a collateral attack," the Court must stay the petition. Id. at 380-82 (citation internal quotation marks omitted); see Devino v. Duncan, 215 F. Supp.2d 414, 418-19 n. 6 (S.D.N.Y. 2002) (Intervening change of law represented by Duncan and Zarvela constituted an appropriate ground for Rule 60(b)(6) relief reinstating an earlier habeas petition. "If Rule 60(b) relief were not available, this would be an appropriate case for equitable tolling."); Vega v. Artuz, 97 Civ. 3775, 2002 WL 252764 at *2 (S.D.N.Y. Feb. 20, 2002).

In sum, the statute tolled from October 9, 1998 through May 20, 1999, when the First Department denied Rodriguez's motion requesting an extension of time to file a notice of appeal. The statute then ran 53 days until Rodriguez filed his motion for reargument on July 12, 1999. The statute then ran 97 days from October 5, 1999, the date the reargument motion was denied, through January 10, 2000, the date of Rodriguez's initial federal habeas petition. The statute was tolled during the entire pendency of Rodriguez's initial federal habeas petition (and his State coram nobis petition) through May 17, 2001, the date of Rodriguez's current federal habeas petition.

Thus, beginning October 9, 1998, only 150 days ran (53 plus 97), leaving 215 days remaining (365 less 150). March 6, 1998 is 215 days before October 9, 1998,¹³ when the above tolling calculations began. Thus, Rodriguez's petition will be untimely if the Due Diligence Discovery Date (the date on which a duly diligent person in Rodriguez's circumstances would have discovered that no appeal had been filed) occurred prior to March 6, 1998.

13 Actually, March 8, 1998 is 215 days before October 9, 1998; however, it is a Sunday, and since this calculation is working chronologically in reverse, it makes sense to use the preceding Friday rather than the following Monday as the date; hence, the use of March 6, 1998.

2. The Due Diligence Discovery Date

As noted above, "[t]he proper task in a case such as this one is to determine when a duly diligent person in petitioner's circumstances would have discovered that no appeal had been filed." Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000); accord, e.g., Cooper v. Bravo, No. 00-2462, 36 Fed. Appx. 343, 346-48, 2002 WL 32716 at *3-5 (10th Cir. Jan. 11, 2002) (holding that (1) under § 2244(d)(1)(D), AEDPA limitations period would begin to run on "the day on which [petitioner] could have reasonably discovered that his counsel failed to follow his instructions to appeal his guilty plea"; and (2) AEDPA could also be equitably tolled for same reason); Aufleger v. Saffle, No. 00-6107, 3 Fed. Appx. 861, 865, 2001 WL 98566 at *3 (10th Cir. Feb. 6, 2001); United States v. Malpeso, No. 00-1784, 17 Fed. Appx. 23, 27, 2001 WL 950290 at *3 (2d Cir. Aug. 13, 2001) (Issue under 28 U.S.C. § 2255(4) was whether a "'duly diligent person in [petitioner's] circumstances would have discovered' prior to . . . (one year before [petitioner] filed his petition) that he had a claim for ineffectiveness based on his attorney's conduct at the plea negotiations."), cert. denied, 123 S.Ct. 275 (2002).¹⁴

14 See also, e.g., Tineo v. United States, 01 Civ. 4511, 97 Cr. 313, 2002 WL 1997901 at *2 (S.D.N.Y. Aug. 29, 2002) ("[T]he princip[al] inquiry to determine timeliness under [ 28 U.S.C. § 2255(4)] is therefore whether a duly diligent person in [petitioner's] circumstances could have discovered the facts supporting his claim prior to . . . one year before the motion was actually filed."); Raynor v. Dufrain, 28 F. Supp.2d 896, 899 (S.D.N.Y. 1998) (dicta: under § 2244(d)(1)(D), the one-year period for filing a habeas petition arguably did not begin to run until petitioner discovered that his attorney failed to file a timely notice of appeal).

"The 'newly discovered evidence' AEDPA limitations period [under § 2244(d)(1)(D)] 'runs from the date a petitioner is on notice of the facts which would support a claim, not from the date on which the petitioner has in his possession evidence to support his claim.'" Lucidore v. New York State Div. of Parole, 99 Civ. 2936, 1999 WL 566362 at *5 (S.D.N.Y. Aug. 3, 1999) (Peck, M.J.) (quoting Youngblood v. Greiner, 97 Civ. 3289, 1998 WL 720681 at *4 n. 4 (S.D.N.Y. Oct. 13, 1998)), aff'd, 209 F.3d 107 (2d Cir.), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000); accord, e.g., Jones v. United States, No. 99-3540, 20 Fed. Appx. 520, 522-23, 2001 WL 1108820 at *3 (7th Cir. Sep. 17, 2001) ("Inquiry into [§ 2255(4)] due diligence focuses on when the factual predicate of a particular claim could have been discovered; recognition of the legal significance of the facts is irrelevant, as is the time that the underlying facts were actually discovered."); Pacheco v. Artuz, 193 F. Supp.2d 756, 760 (S.D.N.Y. 2002) (The § 2244(d)(1)(D) time bar runs "'from the date a petitioner is on notice of the facts which would support a claim, not from the date on which the petitioner has in his possession evidence to support his claim.'"); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *5 (S.D.N.Y. Apr. 29, 1999) (Peck, M.J.), report rec. adopted, 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.).

However, "[t]he mere fact that . . . it was possible for appellant to ascertain the status of his appeal [on a certain date] is not dispositive. The statute does not require the maximum feasible diligence, only 'due,' or reasonable, diligence." Wims v. United States, 225 F.3d at 190 n. 4; accord, e.g., Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002) ("§ 2255(4) does not require the maximum feasible diligence, but only 'due,' or reasonable, diligence. . . . Due diligence therefore does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make reasonable efforts."). Rodriguez's petition must be considered time-barred if a reasonably diligent person in Rodriguez's circumstances would have discovered that no appeal had been filed prior to March 6, 1998 — i.e., over eighteen months after his conviction became "final" on August 14, 1996.

Based on the hearing testimony (see pages 12-14 above), the Court credits Rodriguez's assertion that he informed trial counsel of his intent to appeal and relied on the reasonable belief that trial counsel had filed a notice of appeal for him (or that his statement of intent to appeal on the sentencing record was sufficient to initiate the appeal). It is well-settled that "a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice." Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 1035 (2000); see Restrepo v. Kelly, 178 F.3d 634, 641 (2d Cir. 1999) (Habeas petitioner "had a constitutional right to be represented by counsel [on appeal], a right that would be denied if the State were allowed to hold him in default for not seeking an extension of time pro se."). A reasonably diligent person in Rodriguez's circumstances therefore must be granted a great deal of leeway, because represented defendants may reasonably rely on counsel and are not expected or required to monitor counsel's every move. As the Second Circuit explained in a similar case:

[D]ue diligence plainly did not require Wims to check up on his counsel's pursuit of an appeal on September 22, 1997, the very day on which Wims' conviction became final absent appeal. See Flores-Ortega, 120 S.Ct. at 1035 ("[A] defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice."). The statute of limitations, therefore, did not begin to run until sometime after that day. As an appellate court, we cannot say precisely when, in exercising due diligence, Wims would have discovered his counsel's failure to appeal. This is so because the date on which the limitations clock began to tick is a fact-specific issue the resolution of which depends, among other things, on the details of Wims' post-sentence conversation with his lawyer and on the conditions of his confinement in the period after September 22, 1997. See Easterwood [v. Champion], 213 F.3d [1321,] 1323 [10th Cir. 2000)] (noting that evaluation of due diligence may not "ignore the reality of the prison system"). Although these questions are appropriately answered by the district court, we can, however, say that the five-month delay between September 1997 and February 1998 — one year before Wims sought habeas relief — is not so clearly unreasonable that it plainly appears from the face of appellant's petition and supporting papers that he is barred from habeas relief. See Section 2255 Rule 4(b).

Wims v. United States, 225 F.3d at 190-91.¹⁵

15 Accord, e.g., Aron v. United States, 291 F.3d at 712 ("[T]he due diligence inquiry [under § 2255(4)] is an individualized one that 'must take into account the conditions of confinement and the reality of the prison system.'"); Jones v. United States, 20 Fed. Appx. at 523, 2001 WL 1108820 at *3 ("[C]ourts evaluating the timeliness of a § 2255 motion must consider 'individual circumstances,' which for imprisoned individuals include the conditions of confinement and the practical realities of the prison system.").

The Wims Court confirmed that the "due diligence" standard under § 2244(d)(1)(D) constituted an objective test, equating "due" with "reasonable diligence." Wims v. United States, 225 F.3d at 190 n. 4. The Second Circuit thus implicitly found that courts should not consider such subjective factors as the petitioner's intelligence, education, language skills, or mental stability. See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (Under § 2244(d)(1)(D), "[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance. If § 2244(d)(1) used a subjective rather than an objective standard, then there would be no effective time limit, as [petitioner's] case illustrates. Like most members of street gangs, [petitioner] is young, has a limited education, and knows little about the law. If these considerations delay the period of limitations until the prisoner has spent a few years in the institution's law library, however, then § 2244(d)(1) might as well not exist; few prisoners are lawyers.").¹⁶ The Second Circuit's objective test, however, also mandated consideration of external impediments to timely filing, such as "the conditions of [petitioner's] confinement." Wims v. United States, 225 F.3d at 190-91.¹⁷

16 This comports with longstanding practice as to equitable tolling of the AEDPA. See, e.g., Tan v. Bennett, 00 Civ. 6413, 2001 WL 823869 at *2 (S.D.N.Y. July 20, 2001) (lack of English proficiency does not justify equitable tolling); Rhodes v. Senkowski, 82 F. Supp.2d 160, 172 n. 7, 173 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.) (A "physical or mental illness could toll the AEDPA's one-year time period to file a habeas corpus petition; however, a petitioner must allege more than the mere existence of physical or mental ailments to justify equitable tolling. A petitioner has the burden to show that these health problems rendered him unable to pursue his legal rights during the one-year time period." Moreover, allegations that a petitioner "is not a 'skilled attorney' and does not have 'unbridled access' to the law library . . . are insufficient to justify an equitable tolling of the [AEDPA] limitations period.") (citing cases).

17 The Seventh Circuit raised, without deciding, the question whether a petitioner's lack of "sophistication" should be considered part of the petitioner's "circumstances" when evaluating due diligence. See Montenegro v. United States, 248 F.3d 585, 592-93 (7th Cir. 2001) ("We need not reach the lack of sophistication issue, however, because — even taking [petitioner's] lack of sophistication into account — we find that he did not exercise due diligence. We need say only that it is possible, under some circumstances, that lack of sophistication could become part of a due diligence analysis, because the limitations with which a prisoner is faced might influence how quickly facts could have been discovered. See Wims, 225 F.3d at 190-91."), overruled on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)). At least one court in this district has considered a petitioner's pro se status to be relevant. See Gonzalez v. United States, 02 Civ. 2733, 2002 WL 31512728 at *4 (S.D.N.Y. Nov. 8, 2002) ("Even taking into account petitioner's pro se status and the realities of prison life, I cannot in good conscience find that a 46-month delay comports with a reasonable concept of due diligence.") (emphasis added). It makes sense that, where a petitioner is unrepresented, the due diligence standard looks to what a reasonably diligent pro se petitioner would have done under the circumstances; otherwise the bar would be raised beyond that of the average "reasonably diligent" petitioner. Therefore, giving Rodriguez the benefit of the doubt, but without deciding this issue, the Court will consider Rodriguez's actions from the standpoint of a reasonably diligent pro se petitioner.

Nevertheless, the Wims Court implicitly recognized that attorney incompetence does not create an indefinite toll — at some point, the AEDPA limitations period would run based on a petitioner's lack of diligence. In this case, although Rodriguez reasonably relied on his attorney to file the notice of appeal, that same reliance cannot excuse Rodriguez's extreme delay in discovering that his attorney had not, in fact, filed notice of appeal.

Although the Court credits Rodriguez's testimony that he believed that placing his intent to appeal on the record at sentencing "guaranteed" his appeal (either because that alone constituted notice of appeal or because he expected his trial attorney to file a notice of appeal) (see page 13 above), Rodriguez was given the First Department approved Notice of Right to Appeal form (quoted at page 3 above). Rodriguez concedes that he received and understood that form. (See page 4 above.) That form unequivocally informed Rodriguez that "after the notice of appeal has been filed, you must write to the Appellate Division requesting that counsel be assigned to you for the purpose of appeal. . . . You must write this letter yourself." (Dkt. No. 12: State Reply Br. Ex. A: 1st Dep't Notice of Right to Appeal form.) Rodriguez, however, ignored this instruction until October 9, 1998, some two years and three months after his sentencing. Based on Rodriguez's demeanor and testimony at the February 6, 2000 hearing before this Court, the Court finds him to be well-spoken and reasonably intelligent. He should have followed the form's directions as to the request for counsel and IFP status even if he believed his counsel filed a notice of appeal for him. This is especially so since Rodriguez had prior experience with the Notice of Right to Appeal form. Just a few months earlier, he had completed the same Notice form to serve as his notice of appeal from the denial of his state habeas proceeding, and had simultaneously filed an application for counsel and to proceed in forma pauperis. (See page 14 above.)

Ignorance of the law (or court procedures)¹⁸ or reliance on advice from inmate "writ writers"¹⁹ does not make it reasonable to wait over two years to determine the status of an appeal. Rodriguez's trial attorney gave him the Notice of Right to Appeal form so that he would be properly instructed; the Court understands that it is standard procedure in the Appellate Division that counsel will not be appointed until the criminal defendant applies for counsel and/or IFP status. (See 2/6/03 Hearing Tr. at 30-33.)²⁰ That Rodriguez chose to ignore this instruction for over eighteen months based on his understanding from the "prison grapevine" is neither reasonable nor excuse of due diligence. Importantly, this is not a case where counsel informed Rodriguez that he did not have to file an application for counsel or IFP status (or where counsel misled the defendant into believing counsel filed the documents for him). Cf. Restrepo v. Kelly, 178 F.3d at 636, 640 (counsel repeatedly and "falsely assured" petitioner "that the appeal had in fact been filed" and "was in progress").

18 See, e.g., Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir.) (petitioner's pro se status in state collateral proceedings did "not merit equitable tolling"), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000); Gillyard v. Herbert, 01 Civ. 3427, 2003 WL 194692 at *3 (S.D.N.Y. Jan. 30, 2003) (petitioner's pro se status, and concomitant ignorance of the law, did not equitably toll the AEDPA) (collecting cases); Francis v. Miller, 198 F. Supp.2d 232, 235 (E.D.N.Y. 2002) (petitioner's pro se status and ignorance of law did not equitably toll AEDPA); Rhodes v. Senkowski, 82 F. Supp.2d 160, 172 n. 7 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.) (collecting cases).

19 See, e.g., Marsh v. Soares, 223 F.3d 1217, 1220-21 (10th Cir. 2000) (denying equitable tolling of AEDPA, where petitioner relied to his detriment on "'assistance from the prison legal access attorney and an inmate law clerk'"), cert. denied, 531 U.S. 1194, 121 S.Ct. 1195 (2001); Stuart v. Newland, No. C 00-1565, 2001 WL 125309 at *2-3 (N.D.Cal. Feb. 14, 2001) (bad advice from inmate law clerk regarding AEDPA limitations period did not result in equitable tolling); Mendez v. Artuz, 99 Civ. 2472, 2000 WL 991336 at *2 (S.D.N.Y. July 19, 2000) ("[A] fellow inmate's inaccurate legal advice as to the requirements of the AEDPA is not an extraordinary or exceptional circumstance warranting equitable tolling."); Armand v. Strack, No. CV 98-6650, 1999 WL 167720 at *3-5 (E.D.N.Y. Feb. 19, 1999) (equitable tolling of AEDPA denied because, inter alia, bad advice from "fellow inmate and 'senior paralegal assistant'" in law library did not constitute "extraordinary" or "rare and exceptional" circumstances, making it "impossible to file [habeas] petition"); Henderson v. Johnson, 1 F. Supp.2d 650, 655 (N.D.Tex. 1998) ("It is common for prisoners to count on other inmates for assistance in filing lawsuits or seeking habeas relief . . . . Inmates who assist other prisoners with legal matters are not subject to the ethical and fiduciary obligations of lawyers. If their miscreant, inept, or negligent conduct were deemed sufficient of itself to toll the AEDPA limitations period, the time-bar would be rendered virtually meaningless."). Indeed, a petitioner is not even entitled to equitable tolling where his attorney fails to file within the AEDPA limitations period. See, e.g., Smalldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (citing Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.) (attorney's misunderstanding of the period for which a claim remained "pending" did not warrant equitable tolling), cert. denied, 531 U.S. 1018, 121 S.Ct. 581 (2000)).

20 The Court understands that a challenge to the placement of this burden on the defendant is pending before the New York Court of Appeals. See People v. West, 98 N.Y.2d 703, 747 N.Y.S.2d 422 (2002) (granting leave to appeal on question of, inter alia, the constitutionality of procedural requirement that indigent pro se criminal defendant separately requests in writing that appellate counsel be assigned). Rodriguez's counsel has not raised such a challenge here (nor was such a challenge been raised in state court by Rodriguez).

Second, Rodriguez's attorney did not inform him that appeals generally took two years or longer to prosecute. (See page 14 above.) Compare Dumas v. Kelly, 162 F. Supp.2d 170, 171 (E.D.N.Y. 2001) ("since [petitioner's attorney] told [petitioner] at that time that the appeal would take four to five years, it was not unreasonable — and not reflective of an absence of diligence — for [petitioner] to wait three and one-half years before contacting the Appellate Division regarding the status of the appeal"). Rather, Rodriguez was operating under what he concedes to be a "a laypersons' belief that an appeal takes two (2) years," based on information from other inmates (Dkt. No. 14: Rodriguez 10/28/02 Aff. ¶ 5; see also 2/6/03 Hearing Tr. at 17-18, 44), a belief that was not reasonable for at least two reasons. When Rodriguez in May 1996 filed a notice of appeal (and request for counsel and IFP status) from denial of his state habeas petition, the First Department ruled within four months, by September 19, 1996. (Dkt. No. 22:2/6/03 Hearing, State Exs. 2-4; see also 2/6/03 Hearing Tr. at 45-47.) Second, and more generally, First Department rules require perfection of the appeal, including filing of the defendant-appellant's brief, within a few months, not two years. See, e.g., West v. Breslin, 00 Civ. 1404, 2000 U.S. Dist. LEXIS 21453 at *11-14 (S.D.N.Y. July 31, 2000), report rec. adopted, 2001 U.S. Dist. LEXIS 10682 at *3-4 (S.D.N.Y. July 30, 2001).²¹

21 As Judge Pitman explained:

The Rules of the Appellate Division, First Department, where petitioner filed his appeal, provide, in pertinent part, that appeals in criminal cases "must be brought on for argument within 120 days after the last day in which a notice of appeal was required to be filed, unless the time to perfect the appeal is enlarged by the court or a justice thereof." 22 N.Y.C.R.R. § 600.8(b). Since the appellant commences the process of placing an appeal on the calendar by filing his briefs, the appendix and a note of issue 57 days "before the first day of the term for which the matter shall have been noticed," 22 N.Y.C.R.R. § 600.11(b)(1)(i), it appears that a criminal appellant must perfect his appeal within 63 days (120 days minus 57 days) of the last day on which a notice of appeal was required to be filed. As noted above, the Appellate Division has the discretion to extend the time [in] which a criminal appeal must be perfected. 22 N.Y.C.R.R. § 600.8(c). . . .

Although some other Departments have Rules expressly providing that unperfected criminal appeals will be considered abandoned or subject to automatic dismissal if certain deadlines are not met, the First Department, where petitioner's appeal was pending, has no such rule. Instead, the First Department's Rules provide that unperfected criminal appeals are to be periodically listed on a dismissal calendar.

West v. Breslin, 2000 U.S. Dist. LEXIS 21453 at *12-14 (fn. omitted). The Court does not hold (nor imply) that a petitioner's failure to inquire as to the status of his assumed appeal within two (or even four) months shows a lack of due diligence. The Court need not and does not determine a precise time; the Court merely holds that Rodriguez waited too long.

Third, Rodriguez's testimony revealed no "conditions of . . . confinement," Wims v. United States, 225 F.3d at 190-91, such as solitary confinement or limited access to the law library, that might have prevented him from filing a timely habeas petition. Cf., e.g., Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) ("[E]ven assuming that the alleged deprivation of access to his legal materials and the law library constituted an 'extraordinary circumstance' warranting equitable tolling, petitioner cannot show that this extraordinary circumstance prevented him from filing a timely habeas petition."), cert. denied, 122 S.Ct. 2593 (2002). Rather, Rodriguez was in the general population, and in fact was home on parole for three months before being re-incarcerated for committing another crime while on parole. (See page 14 above.)

In short, given that Rodriguez never received any indication that an appeal was pending and received written instructions (which he understood) that he personally needed to apply to the First Department for appointment of appellate counsel and for IFP status, Rodriguez should have far earlier filed such an application, or at least an inquiry, to the First Department. Rodriguez's eighteen month delay — a full thirteen months longer than the delay in Wims — displayed a clear lack of diligence, and therefore merits dismissal on time-bar grounds under 28 U.S.C. § 2244(d)(1).²² See Gonzalez v. United States, 02 Civ. 2733, 2002 WL 31512728 at *4 (S.D.N.Y. Nov. 8, 2002) ("In this case, the delay between May 11, 1998, when petitioner's conviction became final, and March 20, 2002, when he filed his petition, amounts to over 46 months. Even taking into account petitioner's pro se status and the realities of prison life, I cannot in good conscience find that a 46-month delay comports with a reasonable concept of due diligence. Accordingly, petitioner's failure to file an appeal claim is time-barred and the motion must be dismissed."); Zapata v. United States, Nos. 90 CR. 943, 99 Civ. 00085, 2000 WL 1610801 at *3 (S.D.N.Y. Oct. 27, 2000) (defendant failed to demonstrate "due diligence" because he waited 3-1/2 years to discover that counsel had not filed a notice of appeal); Plowden v. Romine, 78 F. Supp.2d 115, 119 (E.D.N.Y. 1999) (denying equitable tolling of § 2244(d)(1), because petitioner's 17-month delay in checking on status of state appeal proved lack of diligence).²³

22 In Wims v. United States, the Second Circuit reversed the district court's dismissal of the habeas petition because the appellant's lack of diligence was not plain "from the face of appellant's petition and supporting papers." 225 F.3d at 191. Here, by contrast, the Court relies not merely on Rodriguez's papers, but on a factual hearing at which Rodriguez, represented by CJA counsel, testified.

23 Cf. Montenegro v. United States, 248 F.3d 585, 590-93 (7th Cir. 2001) (declining to decide whether § 2255 petitioner actually requested attorney to file direct appeal, but affirming decision that petition was time barred because (1) "[a]bout six months after his conviction and sentence were final, [petitioner] had the docket sheet that revealed that an appeal in his case had not been filed," (2) "he never asked [his trial attorney] about the appeal" despite corresponding with him, and (3) "[t]hat an appeal had not been filed was a matter of public record, 'which reasonable diligence could have unearthed.'" (quoting Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000)), overruled on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)); Owens v. Boyd, 235 F.3d 356, 359-60 (7th Cir. 2000) (had petitioner exercised due diligence under § 2244(d)(1)(D), he would have learned long before federal habeas petition due date that attorney had not filed appeal with state's highest court; indeed, petitioner "almost certainly had actual knowledge" of that fact long before he filed federal habeas petition); Powell v. Williams, 981 F. Supp. 1409, 1412-13 (D.N.M. 1997) (Under § 2244(d)(1)(D), "the time for determining when the limitations period began should be the time when [petitioner] discovered or should have discovered through the exercise of due diligence when his attorney had failed to file a direct appeal"; petitioner must have discovered this by the time "he filed a disciplinary complaint for failure to file a timely appeal against [his attorney] with the State Disciplinary Board.").

Thus, even giving Rodriguez the benefit of the doubt, Rodriguez's habeas petition is untimely because he did not discover with due diligence that his attorney did not file a notice of appeal. Indeed, even if Rodriguez had not ignored the state rule requiring criminal defendants to move for the assignment of appellate counsel and IFP status, the Court would nevertheless recommend dismissal on time-bar grounds because it was simply not "reasonably diligent" for Rodriguez to wait over 18 months before inquiring into the status of his appeal.²⁴ The Court notes that to avoid these time-bar issues in future cases, criminal defendants would be wise to determine whether notice of appeal has been filed before expiration of the C.P.L. § 460.30 one year and one month deadline. The Court is not adopting that deadline as a due diligence standard. As Restrepo shows, there can be circumstances where a defendant's delay beyond that is reasonable. Rather, the Court is offering a practical suggestion to Rodriguez's so-called "prison grapevine" — if an inquiry is made (and pro se notice of appeal filed if necessary) before the expiration of one year and one month, C.P.L. § 460.30 gives the Appellate Division discretion to permit such a "late" appeal — and the AEDPA limitations period does not start until after conclusion of the direct appeal. The Court's holding in this case, however, is limited to the conclusion that on the facts and circumstances of Rodriguez's case, he was not reasonably diligent when he did not take steps to determine the status of his appeal until more than 18 months had passed.

24 The Court further notes that Rodriguez actually waited some 27 months to take any action in connection with his appeal. The 18 months referred to in text is the time from when his appeal became final until March 6, 1998, the last date by which his Due Diligence discovery would be timely.

B. Rodriguez is Not Entitled to Equitable Tolling

Nor is Rodriguez entitled to equitable tolling, which "is only appropriate in 'rare and exceptional circumstances.'" Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (per curiam) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (per curiam), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000)), cert. denied, 535 U.S. 1017, 122 S.Ct. 1606 (2002).²⁵

25 See generally Rhodes v. Senkowski, 82 F. Supp.2d 160, 165-73 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.); Martinez v. Kuhlmann, 99 Civ. 1094, 1999 WL 1565177 at *3-6 (S.D.N.Y. Dec. 3, 1999) (Peck, M.J.), report rec. adopted by, 2000 WL 622626 (S.D.N.Y. May 15, 2000) (Mukasey, D.J.); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *5-8 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.).

To be entitled to equitable tolling, a petitioner must show "that extraordinary circumstances prevented him from filing his petition on time" and that he "acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d at 17. To establish "extraordinary circumstances," a petitioner "must 'demonstrate a causal relationship between the extraordinary circumstances . . . 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.'" Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)), cert. denied, 122 S.Ct. 2593 (2002).

Although the equitable tolling doctrine contains a "reasonable diligence" requirement similar (if not identical) to the "due diligence" requirement of 28 U.S.C. § 2244(d)(1)(D), equitable tolling raises the bar considerably by also requiring "extraordinary circumstances." Thus, for example, in Jones v. United States, No. 99-3540, 20 Fed. Appx. 520, 523-24, 2001 WL 1108820 at *3-4 (7th Cir. Sep. 17, 2001), the Seventh Circuit remanded to determine whether the § 2255 petitioner had been duly diligent in "discover[ing] that his former counsel had not filed a notice of appeal." The Seventh Circuit, however, flatly rejected equitable tolling of the AEDPA, because the petitioner failed to satisfy the "very high threshold necessary to invoke the doctrine." Id. at 524, 2001 WL 1108820 at *4; accord, e.g., Montenegro v. United States, 248 F.3d 585, 592-94 (7th Cir. 2001) (holding that petitioner did not exercise due diligence under § 2255(4) in determining that appeal had not been filed, and that it was "particularly apparent" that equitable tolling should be denied for the same reasons), overruled on other grounds, Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)).

Accordingly, since the Court has already ruled that Rodriguez did not act with "due" or "reasonable diligence" to discover that no appeal had been filed, a fortiori, equitable tolling would not be appropriate either. See, e.g., Loving v. Mahaffey, No. 01-7063, 27 Fed. Appx. 925, 926, 2001 WL 1564057 at *1 (10th Cir. Dec. 10, 2001) (Petitioner's "appellate filings offer no explanation why it took him almost four years after his conviction became final to file his state petition for post-conviction relief and almost five years to file the instant § 2254 petition. Nor is that delay explained by [petitioner's] attorney's failure to file a notice of appeal as allegedly directed by [petitioner]. Because [petitioner] has not diligently pursued his claims, he is not entitled to equitable tolling."); Winters v. Edwards, No. 01-3061, 27 Fed. Appx. 327, 329, 2001 WL 1136088 at *1 (6th Cir. Sep. 18, 2001) (denying equitable tolling of AEDPA based on petitioner's claim that attorney failed to file direct appeal and trial court failed timely to appoint counsel, because, inter alia, petitioner waited over five years after conviction to file state collateral proceeding), cert. denied, 534 U.S. 1149, 122 S.Ct. 1112 (2002); Brown v. United States, No. 01-1481, 20 Fed. Appx. 373, 375, 2001 WL 1136000 at *3 (6th Cir. Sep. 21, 2001) ("[T]o the extent [petitioner] claims that he believed mistakenly that counsel was prosecuting an appeal on his behalf, this does not qualify [for equitable tolling] because [petitioner] failed in his duty to monitor the status of his appeal."); United States v. Bruce, No. CR.A. 99-045-2, 2002 WL 31757938 at *1 (D.Del. Nov. 26, 2002) (denying equitable tolling of AEDPA, because "an attorney's failure to file a notice of appeal does not constitute the type of extraordinary or rare circumstances making it impossible for a defendant to timely file his or her Section 2255 Petition"); Martinez v. United States, 00 Civ. 1214, 96 CR. 450-04, 2000 WL 863121 at *1-2 (S.D.N.Y. June 28, 2000) (Although § 2255 petitioner claimed that he "only learned in January 2000 that his attorney never filed an appeal on his behalf" from his July 1997 sentencing, court denied equitable tolling of AEDPA because February 2000 "petition was received approximately two and a half years after his conviction became final," showing lack of "reasonable diligence . . . in learning that his attorney had not filed an appeal.").

CONCLUSION

For the reasons set forth above, Rodriguez's habeas corpus petition should be DENIED. Because the AEDPA limitations issue is not altogether free of doubt, however, the Court should issue a certificate of appealability. See, e.g., Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595, 1599 (2000) (certificate of appealability should issue where "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further'"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further"), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000).

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolekv. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).