Opinion
00 Civ. 3798 (RWS)
October 17, 2000
ROGER BENNETT ADLER, ESQ., Attorney for Petitioner, New York, NY.
HONORABLE ROBERT M. MORGENTHAU, District Attorney of New York County Attorney for Respondent, New York, NY, By: MORRIE I. KLEINBART, Assistant District Attorney, Of Counsel.
OPINION
Respondent Daniel Senkowski ("Senkowski" or "respondent") has moved to dismiss the 28 U.S.C. § 2254 habeas corpus petition brought by petitioner Paul Ruine ("Ruine" or "petitioner") on the grounds that Ruine has not exhausted all state remedies. For the reasons stated below, the motion will be granted.
Parties
Ruine is an inmate in state custody at the Clinton Correctional Facility due to his conviction in the New York Supreme Court for murder in the second degree.
Senkowski is the Superintendent of the Clinton Correctional Facility.
Background
A jury convicted Ruine of second degree murder in the New York County Supreme Court on June 25, 1998. He was sentenced to a term of 15 years to life imprisonment in the custody of the New York State Department of Correctional Services.
The judgment of conviction was affirmed on February 4, 1999, and leave to appeal to the New York Court of Appeals denied on May 19, 1999.
On May 17, 2000, Ruine filed a post-conviction motion to vacate the judgment in the New York County Supreme Court, pursuant to New York Criminal Procedure Law ("CPL") § 440.10(1)(h), as well as the New York State Constitution and the United States Constitution (the "§ 440 motion"). The § 440 motion raised claims of ineffective assistance of counsel, insufficiency of the evidence, and various instances of prosecutorial misconduct. As of October 12, 2000, both the motion and response had been filed, and the Court was awaiting the filing of petitioner's reply papers before the motion would be deemed fully submitted and the Court would undertake to decide the motion.
On the same day, Ruine filed the instant habeas corpus motion pursuant to 28 U.S.C. § 2254 in this Court (the "habeas motion"). The habeas motion raised substantially the same claims as those raised in the § 440 motion.
By letter of June 22, 2000, the respondent moved to dismiss the habeas motion because it raises the same grounds as those pending in the § 440 motion. (Resp. Let.) The respondent argued that, in light of the pending state court proceeding, Ruine had not exhausted his state remedies as required by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 et seq. Petitioner filed a response by letter of August 16, 2000, which, citing the fear of being precluded from refiling the federal habeas petition under AEDPA's statute of limitations, see 28 U.S.C. § 2244 (d)(1), asked the Court to waive exhaustion due to the "sloth" of the state court reviewing the § 440 motion. (Pet. Resp. Let.) Specifically, the petitioner requested that (1) the habeas motion not be dismissed, or, in the alternative, either that (2) the habeas motion be placed on this Court's "suspense calendar" until the § 440 motion is decided, or that (3) the motion be dismissed without prejudice with leave to ref ile. (Id.) The respondent filed a reply letter on August 21, 2000 (Resp. Repl. Let.), whereupon the motion was deemed fully submitted.
Discussion
I. Procedural Limits on Federal Collateral Attacks Against State ConvictionsA. One-Year Statute of Limitations
In 1996, AEDPA enacted strict procedures by which petitioners could raise collateral constitutional attacks in federal courts against their final state court convictions. Among other procedural hurdles to federal relief, and to further the interest in preserving the finality of state court judgments, AEDPA instituted a one-year statute of limitations for petitioners in state custody filing federal habeas petitions. 28 U.S.C. § 2244 (d)(1) (West Supp. 2000). The one-year period runs 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 fining an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id. Here, Ruine does not allege any impediment to filing a new rule of constitutional law or new evidence. Thus, the statute of limitations applicable to him is outlined in subsection (a), and began to run from the date on which his judgment became final on direct review in the New York state courts, May 19, 1999.
B. Exhaustion
At the same time, AEDPA formalized a requirement, subject to very narrow exceptions, that petitioners exhaust all state court remedies before filing habeas corpus petitions in federal courts. 28 U.S.C. § 2254 (b)(1)(A), (B) (West Supp. 2000); see Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (reaffirming that a state prisoner must exhaust state remedies before a writ of habeas corpus may be granted by a federal court). The stated rationale of this requirement is "comity," or due respect for state courts, which Congress felt should have the first opportunity to pass upon convictions rendered in state courts. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Duckworth v. Serrano, 454 U.S. 1 (1981); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). As the Supreme Court has stated, the exhaustion requirement in § 2254(b) "provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); see 28 U.S.C. § 2254 (b)(1)(A) (West Supp. 2000).
AEDPA specifically provides that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254 (c) (West Supp. 2000). Moreover, if only a single claim brought in a federal habeas petition is still viable in state court, the entire habeas petition is deemed to be not exhausted and must be dismissed. Lundy, 455 U.S. at 521, 102 S.Ct. at 1205. Thus, if a § 440 motion is pending, state court remedies have not yet been exhausted, and the habeas petition must be dismissed. See id.; Rock v. Coombe, 694 F.2d 908, 914 (2d Cir. 1982).
Ruine apparently concedes that his claims have not been exhausted, but alleges that the "sloth" of the Supreme Court proceedings justifies the application of one of the narrow exceptions to the exhaustion requirement in his case. Significant delay in state court proceedings may provide grounds to excuse the exhaustion requirement. See Cody v. Henderson, 936 F.2d 715, 718 (2d Cir. 1991). However, AEDPA allows federal courts to waive exhaustion only where "(i) there is an absence of available state corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254 (b)(1)(B)(i) (ii) (West Supp. 2000)
A June 26, 2000 letter from Ruine's counsel to respondent's counsel in this case states that "more than one month has passed since your office was personally served with a post-judgment motion raising the very legal issues upon which lack of exhaustion is addressed." (Pet. Resp. Let. at A-1.)
Ruine submits that the respondent had not filed any papers in response to the § 440 motion as of three months after it was filed and further alleges that "the state court has failed to appropriately address, and timely resolve, the issues raised herein, nor does it reasonably appear willing to do so in the reasonably foreseeable future" (Pet. Resp. Let. at 2.), and that, as a result, the state court procedures are ineffective to protect his rights.
However, there is no evidence to support the allegation that the state court will not address the merits of Ruine's motion when all the supporting papers have been submitted. As stated above, as of the time of this writing, that court had received a submission from the respondent and was awaiting only Ruine's response before considering the motion. The § 440 motion was filed in mid-May 2000 and will be deemed fully submitted once Ruine files his reply, which has been awaited since late August. Such a schedule does not constitute undue delay. See, e.g., Balburea v. United States, 2000 U.S. Dist. LEXIS 8550 (S.D.N.Y. 2000) (motion filed on June 30, 1999, deemed fully submitted February 29, 2000); Rivera v. United States, 1993 U.S. Dist. LEXIS 12802 (S.D.N Y 1993) (motion filed November 23, 1992, response filed March 11, 1993),aff'd, 41 F.3d 1501 (2d Cir. 1994), cert. denied, 513 U.S. 1171 (1995).
Moreover, having sought to file a reply to the respondent's papers in state court but not having done so as of approximately two months later, Ruine is poorly positioned to complain of delay in the state court proceeding. Finally, it cannot be said that the absence of a decision a mere five months since the date Ruine filed the § 440 motion constitutes a total "absence of State court procedures," or that the procedures will be "ineffective" in protecting Ruine's rights. See 28 U.S.C. § 2254 (b)(1)(B)(i) (ii) (West Supp. 2000); cf. Collins v. Rivera, No. 99-CV-0490H, 1999 WL 1390244, *6 (W.D.N.Y. Dec. 2, 1999) (holding that two-year delay in perfecting petitioner's claim rendered New York procedures "ineffective" to protect petitioner's rights).
Ruine's habeas corpus petition will be dismissed without prejudice for lack of exhaustion of state court remedies pursuant to 28 U.S.C. § 2254 (b)(1)(A). Leave to refile the petition after the disposition of the pending state court proceedings is granted.
C. The Statute of Limitations Will Be Tolled from May 17, 2000 through the Disposition of the Pending § 440 Motion
As discussed above, AEDPA forces habeas petitioners to balance between the competing pressures of exhausting all available state post-conviction remedies and filing federal habeas petitions within one year of the date their convictions became final on direct appeal. Given the relative recency and complexity of AEDPA's provisions, Ruine understandably has concerns about his ability to pursue federal habeas corpus relief after pursuing to completion the lengthy state court collateral review process.
However, Ruine need not fear such a result. Recognizing the unlikeliness of state post-conviction remedies being resolved within the one-year period, Congress enacted a provision that tolls the statute of limitations while post-conviction proceedings are pending in state court. 28 U.S.C. § 2244 (d)(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"); see Walker v. Artuz, No. 98-2572, 2000 WL 309980 at *2-4 (2d Cir. March 27, 2000); See Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000)
Recently, the Second Circuit gave petitioners "an incentive to file their federal petitions right away," holding that § 2244(d)(2) tolls the statute of limitations not only while state court proceedings are pending, but also when federal habeas motions are filed. Walker v. Artuz, 208 F.3d 357, 360 (2d Cir. 2000). The Walker Court explicitly stated that dismissals of habeas petitions for lack of exhaustion "should not later be construed to produce the unintended effect of barring federal habeas review under the AEDPA statute of limitations provision."Id. 208 F.3d at 361 (approving the reasoning of Kethley v. Berge, 14 F. Supp.2d 1077, 1079 (E.D. Wis. 1998)).
Walker makes clear that this dismissal of Ruine's habeas claim will not in itself bar future federal filing once his state claims are exhausted. The statute of limitations has been tolled since May 19, 1999, when the state and federal actions were filed and will continue to be tolled while state actions are pending.
However, the statute of limitations on filing Ruine's federal habeas corpus petition began to run on May 19, 1999, when the Court of Appeals declined to review the Appellate Division's decision to affirm his conviction, see People v. Ruine, 93 N.Y.2d 929 (N.Y.App.Ct. 1999), and continued to run until May 17, 2000, a total of 363 days. After his state claims are exhausted, only two days will remain until the one-year bar will go into effect.
Conclusion
For the aforementioned reasons, the habeas petition is dismissed without prejudice for lack of exhaustion of state court remedies. Leave to refile within the statute of limitations period once state remedies have been exhausted is granted.
It is so ordered.