Opinion
03 Civ. 6323 (GEL)
December 18, 2003
OPINION AND ORDER
Theodore Simpson petitions for a writ of habeas corpus to challenge his 1998 conviction in Supreme Court, Bronx County, for murder, robbery, and kidnapping, crimes for which he received sentences totaling twenty-five years to life. People v. Simpson, 728 N.Y.S.2d 135 (1st Dep't 2001). The court imposed these sentences to run consecutively to two prior sentences of eight and one-third to twenty-five years, also to run consecutively, which had been imposed on Simpson following his conviction in the same court on charges of attempted murder and robbery.People v. Simpson, 710 N.Y.S.2d 820 (1st Dep't 2000),leave to appeal denied, 95 N.Y.2d 871 (2000) (Rosenblatt, J.),pet, for habeas corpus denied, Simpson v. Portuondo, No. 01 Civ. 8744, 2002 WL 31045862 (S.D.N.Y. June 4, 2002). The latter sentences, in turn, were imposed to run consecutively to another sentence of twenty-five years to life, which Simpson received following his prior conviction for a murder. People v. Simpson, 693 N.Y.S.2d 525 (1st Dep't 1999), leave to appeal denied, 94 N.Y.2d 829 (1999) (Levine, J.), pet, for habeas corpus denied, Simpson v. Portuondo, No. 01 Civ. 1379, 2001 WL 830946 (S.D.N.Y. July 12, 2001). The present petition will be denied as untimely.
The Appellate Division affirmed Simpson's most recent conviction on June 21, 2001, People v. Simpson, 728 N.Y.S.2d 135 (1st Dep't 2001), and on September 20, 2001, the New York Court of Appeals denied him leave to appeal. See 96 N.Y.2d 942 (2001) (Wesley, J.). Simpson did not seek a writ of certiorari from the United States Supreme Court. For purposes of the statute of limitations applicable to habeas corpus petitions brought by persons in state custody, 28 U.S.C. § 2244(d)(1), his conviction therefore became final on December 19, 2001, ninety days after the denial of his application for leave to appeal. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Section 2244(d)(1)(A) required Simpson to file his petition for a writ of habeas corpus within one year of that date, that is, by December 19, 2002. Because he did not file the present petition until June 26, 2003, it is apparently time-barred.
Simpson's petition, dated June 26, 2003, reached the Court on June 30, 2003. Assuming he delivered the petition to prison authorities on the day it is dated, the petition is deemed filed as of that date.Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001) (holding that the "prison mailbox rule" established by Houston v. Lack, 487 U.S. 266 (1988), applies to habeas petitions)
Construing Simpson's pro se petition liberally, however, he advances several reasons why the limitations period should be tolled under the circumstances On January 14, 2002, Simpson filed a letter seeking reconsideration of the denial of his application for leave to appeal On March 6, 2002, the New York Court of Appeals granted Simpson's motion, but upon reconsideration, again denied him leave to appeal, finding that he failed to raise any "question of law . . . which ought to be reviewed by the Court of Appeals." (Swiger Aff., Ex. 3.)People v. Simpson, 97 N.Y.2d 761 (2002) (Wesley, J.). Even were Simpson's conviction deemed final as of ninety days from this latter date, the statutory filing deadline would be March 6, 2003, and Simpson's habeas petition, filed more than three months later, would still be untimely.
The better view, however, is that Simpson's reconsideration motion at most tolled the statute of limitations while it remained pending. Under Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001), Simpson's conviction had already become final more than one month before he sought reconsideration. See id. at 151. The date a conviction becomes final cannot sensibly be extended indefinitely pending belated reconsideration motions, for that would render the statutory deadline unascertainable. Assuming arguendo that the reconsideration motion can be deemed a "properly filed application for state post-conviction or other collateral review," 28 U.S.C. § 2244(d)(2), that motion tolled the statute of limitations for fifty-one days, extending the deadline for Simpson to file his habeas petition to February 8, 2003. Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir 1999) Simpson did not file the present petition until June 26, 2003, making it untimely regardless.
Simpson made one other arguable effort to seek some form of post-conviction relief. By letter dated October 16, 2002, he wrote a letter to the Bronx County District Attorney's Office and his own appellate counsel, requesting copies of certain notices of entry of judgment. (Swiger Aff., Ex. 5.) This inquiry does not affect the limitations period, however, because it does not seek relief from the judgment of conviction. At best, generously interpreted, it might be deemed a request under New York's Freedom of Information Law, which does not toll the statute of limitations. Sorce v. Artuz, 73 F. Supp.2d 292, 297-98 (E.D.N.Y. 1999); cf. Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001) (holding that petitioner's proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules, by which he "sought material he claimed might be of help m developing" a challenge to his conviction, did not qualify as "`an application for State post-conviction or other collateral review' within the meaning of subsection 2244(d)(2)") Even if a Freedom of Information Law request did operate to toll the limitations period, the District Attorney responded to that request within nine days (Swiger Aff, Ex. 5), and there would be no plausible basis to toll the limitations period for more than those nine days, not nearly enough to render Simpson's petition timely.
In his reply submission, Simpson also requests that the Court toll the limitations period because sometime in July 2002, he suffered a mental breakdown, which allegedly incapacitated him until about September 2002. The Court may equitably toll the § 2244(d) limitations period, but will do so only in "rare and exceptional" circumstances that prevent a petitioner from timely filing. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). In Rios v. Mazzuca. No. 03-2150, 2003 WL 22426961 (2d Cir. Oct. 22, 2003), the Second Circuit assumed without deciding "that a petitioner seeking habeas relief can in some rare and exceptional circumstances rely on proof of mental illness to justify equitable tolling of the AEDPA's limitation period." Id. at *2. The court found, however, that the petitioner in that case failed to submit adequate documentation to show that "he was so incapable of rational thought that he could not appreciate his situation, or lacked the wherewithal to ascertain that he must take legal steps, " id. at *3, even though the record left "no question . . . that [petitioner suffered] from a chronic and debilitating mental illness," as verified by medical documentation in the record. See id.
Several Courts of Appeals, including our own, prefer to pretend that "unpublished" opinions (which of course are published electronically in databases in which they are searchable interchangeably with those opinions the Courts of Appeals are prepared to acknowledge) do not exist. While recognizing that such opinions do not constitute binding precedent in the Second Circuit, this Court finds even the less considered words of distinguished panels of judges highly persuasive. Surely, such "unpublished" opinions are at least as valuable to a district judge considering thorny legal issues as the musings of the authors of student law-review notes, which are freely citable.
Simpson has not submitted medical records, other documentation, or indeed proof of any kind to substantiate his alleged mental incapacitation during the months from July to September 2002, except for his own letter to the Clerk of the United States District Court for the Southern District of New York, which makes no more than conclusory factual averments. Simpson bears the burden to establish the propriety of equitable tolling. Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). Here, as inBoos, petitioner's "conclusory and vague claim, without a particularized description of how h[is] condition adversely affected h[is] capacity to function generally or in relationship to the pursuit of h[is] rights, is manifestly insufficient to justify any further inquiry into tolling." Id.; see also Rios, 2002 WL 22426961, at *4; accord. Smith v. Saffle, No. 01-5078, 2001 WL 1203397, at *1 (10th Cir. Oct. 10, 2001) (finding habeas petitioner's "vague and unsupported references to mental incompetence . . . insufficient to put that issue before the district court as a basis for equitable tolling"). Nor has Simpson submitted any evidence to make the required showing that he "acted with reasonable diligence throughout the period he seeks to toll." Smith, 208 F.3d at 17. Where, as here, the petitioner, "acting with reasonable diligence, could have filed on time notwithstanding the [allegedly] extraordinary circumstances," equitable tolling is inappropriate. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir 2000) In any event, even were the Court equitably to toll the limitations period based on alleged hardships arising from Simpson's mental breakdown, the three months he would thereby gain would not bring his petition within the statutory period
Finally, it must be noted that the grounds for relief asserted in Simpson's petition lack merit. His argument that the prosecution failed to establish his guilt beyond a reasonable doubt amounts to nothing more than an attack on the credibility of the witnesses against him. The New York State Appellate Division rejected these very arguments on the merits. People v. Simpson, 728 N.Y.S.2d 135, 135-36 (1st Dep't 2001). Its decision not only was not "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 22S4(d)(1): Williams v. Taylor, 529 U.S. 362, 412-13(2000) (Opinion of O'Connor, J.); it was manifestly correct.
Accordingly, Simpson's petition for a writ of habeas corpus is denied. Because he has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue.See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
SO ORDERED.