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Ruiz v. Poole

United States District Court, S.D. New York
Mar 28, 2008
06 Civ. 07746 (RJH) (KNF) (S.D.N.Y. Mar. 28, 2008)

Opinion

06 Civ. 07746 (RJH) (KNF).

March 28, 2008


REPORT AND RECOMMENDATION


TO THE HONORABLE RICHARD J. HOLWELL, UNITED STATES DISTRICT JUDGE

INTRODUCTION

On August 31, 2006, Wilfredo Ruiz ("Ruiz"), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by delivering it to prison officials at New York's Five Points Correctional Facility, where he was incarcerated. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001). The respondent opposed the petition contending, inter alia, it is untimely.

TIMELINESS OF THE PETITION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides, in pertinent part: "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." 28 U.S.C. § 2244(d)(1)(A). However, "[t]he 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" the one-year statute of limitations period. 28 U.S.C. § 2244(d)(2). "[A] state-court petition [for post-conviction or other collateral review] is 'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures."Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) (citation omitted).

On March 13, 2000, after a jury trial, in the New York State Supreme Court, New York County, Ruiz was convicted for two counts each of second-degree robbery and attempted second-degree robbery, and was sentenced, as a persistent violent felony offender, to four concurrent terms of 23 years to life imprisonment. The New York State Supreme Court, Appellate Division, First Department, affirmed Ruiz's conviction. See People v. Ruiz, 301 A.D.2d 445, 752 N.Y.S.2d 881 (App.Div. 1st Dep't 2003). On April 8, 2003, the New York Court of Appeals denied Ruiz's application for leave to appeal the affirmance of his conviction. See People v. Ruiz, 99 N.Y.2d 658, 760 N.Y.S.2d 123 (2003). Ruiz's conviction became final on July 7, 2003, when the time to seek a writ of certiorari from the United States Supreme Court expired. See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005). Pursuant to the AEDPA one-year statute of limitations, Ruiz had until July 8, 2004, to file his petition for federal habeas corpus relief. See 28 U.S.C. § 2244(d)(1); Fed.R.Civ.P. 6(a)(1).

On May 24, 2004, and 45 days before the expiration of the AEDPA statute of limitations, Ruiz filed a motion to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, with the New York State Supreme Court, New York County. Ruiz's filing of his CPL § 440.10 motion, on May 24, 2004, triggered the statutory tolling period under AEDPA. See 28 U.S.C. § 2244(d)(2). Ruiz's CPL § 440.10 motion was denied.

On May 24, 2004, Ruiz delivered his CPL § 440.10 motion to officials in the correctional facility where he was incarcerated. The Court will apply the "mailbox rule," pursuant to which a pro se prisoner files a motion when he delivers it to prison officials, see Houston v. Lack, 487 U.S. 266, 270-72, 108 S. Ct. 2379, 2382-83 (1988), to determine the filing date of Ruiz's CPL § 440.10 motion. Where New York law does not prescribe a deadline for filing of a particular motion that tolls the federal habeas corpus petition, and notwithstanding any state's filing laws to the contrary, federal courts are not precluded from applying the "mailbox rule" to AEDPA's statute of limitations period in order to ascertain whether the motion is "properly filed." Fernandez, 402 F.3d at 116.

On October 6, 2005, the New York State Supreme Court, Appellate Division, First Department, denied Ruiz's application for leave to appeal to that court, from the denial of his CPL § 440.10 motion, thus foreclosing further appellate review of that motion and ending the AEDPA statutory tolling period. See CPL § 460.20,Hizbullahankhamon, 255 F.3d at 70. After the AEDPA statutory tolling period ended, on October 6, 2005, Ruiz had 45 days, i.e. until November 21, 2005, see Fed.R.Civ.P. 6(a)(3), to file his federal habeas corpus petition.

However, Ruiz filed his petition on August 31, 2006. Although on November 29, 2005, Ruiz filed an application for a writ of error coram nobis with the New York State Supreme Court, Appellate Division, First Department, that application did not trigger the statutory tolling period anew, because it was filed after the AEDPA statute of limitations had expired. Ruiz does not contend that, in his case, the AEDPA one-year statute of limitations should run from any of the other dates, set forth in 28 U.S.C. §§ 2244(d)(1)(B), (C) and (D). Therefore, review of Ruiz's petition is barred by the AEDPA one-year statute of limitations.

Equitable Tolling

In rare and exceptional circumstances, a petitioner may qualify for equitable tolling of the AEDPA one-year statute of limitations, if he establishes that: (1) he was prevented from filing his petition timely by extraordinary circumstances; and (2) he acted with reasonable diligence for the duration of the period he seeks to toll, notwithstanding extraordinary circumstances. See Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004). In the Second Circuit, extraordinary circumstances have been found to exist "where an attorney's conduct is so outrageous and incompetent that it is truly extraordinary," or "where prison officials intentionally obstruct a petitioner's ability to file his petition by confiscating his legal papers." Id. at 159-60.

The respondent contends the petitioner failed to allege any "rare and exceptional circumstances" that would warrant equitable tolling and his pro se status cannot excuse the petitioner's delay. Ruiz maintains he failed to file the petition timely because he "did not have access for a while to the law library while in Attica prison" and he was ignorant of the law. Ruiz does not proffer any evidence to establish his lack of access to the law library. Moreover, Ruiz states that he "cannot prove that Attica has denied access. The court will have to take it as the truth."

Ruiz was incarcerated in: (a) Wallkill Correctional Facility, when he filed his CPL § 440.10 motion; (b) Great Meadow Correctional Facility, when he filed his coram nobis application; and (c) Five Points Correctional Facility, when he filed the instant petition. The record does not demonstrate, and Ruiz failed to indicate, when he was incarcerated in Attica Correctional Facility, where he was allegedly denied access to the law library. Moreover, Ruiz failed to indicate the period during which he had no access to the law library, while he was incarcerated in the Attica Correctional Facility, and the efforts, if any, he undertook to address his lack of access to the law library. Additionally, ignorance of law does not constitute a rare and extraordinary circumstance that would merit equitable tolling.See Ayala v. Fischer, No. 04 Civ. 3404, 2004 WL 2435523, at *1 (S.D.N.Y. Nov. 2, 2004). The allegation, that Attica Correctional Facility denied him "access for a while to the law library," without more, is not a "rare and exceptional circumstance" warranting equitable tolling of the AEDPA statute of limitations.

RECOMMENDATION

For the foregoing reasons, I recommend that the petition, (Docket Entry No. 1), be dismissed, as untimely.

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 Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Holwell, 500 Centre Street, Room 1950, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 530, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Holwell. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


Summaries of

Ruiz v. Poole

United States District Court, S.D. New York
Mar 28, 2008
06 Civ. 07746 (RJH) (KNF) (S.D.N.Y. Mar. 28, 2008)
Case details for

Ruiz v. Poole

Case Details

Full title:WILFREDO RUIZ, Petitioner, v. THOMAS M. POOLE, Respondent

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

Date published: Mar 28, 2008

Citations

06 Civ. 07746 (RJH) (KNF) (S.D.N.Y. Mar. 28, 2008)