Opinion
01 Cr. 782 (GEL), 07 Civ. 466 (GEL).
December 4, 2007
OPINION AND ORDER
Defendant Felix Flores moves to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that he was denied the effective assistance of counsel because his attorney failed to seek a reduction in sentence based on his purported cooperation with the authorities. Because "it plainly appears from the motion, . . . and the record of prior proceedings that the moving party is not entitled to relief," Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts, there is no need to direct the Government to respond to the motion, which will be dismissed.
At the threshold, there is a serious question whether Flores's motion is timely. Under § 2255, a "1-year period of limitation" applies to such motions, the limitation period running, with exceptions not here relevant, from "the date on which the judgment of conviction becomes final." The judgment of conviction in this case was entered on August 15, 2002, and Flores's appeal from that judgment was dismissed on April 21, 2004. The time for seeking certiorari thus expired on July 20, 2004. Sup. Ct. R. 13(1) (stating that, unless otherwise provided, petition for writ of certiorari to review a judgment entered by a United States court of appeals is timely when it is filed with the Clerk of the Supreme Court within 90 days after entry of the judgment); Sup. Ct. R. 30 (governing computation of time). Thus, to be within the statutory limitation period, any motion under § 2255 was required to have been filed before July 20, 2005. Flores's motion is signed and dated December 13, 2006, more than 16 months after that date. It would thus appear that his motion was untimely.
Prisoner petitions of this type are deemed filed on the date of delivery to prison officials, under the so-called "prison mailbox rule." See Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (A "prisoner appearing pro se satisfies the time limit for filing a notice of appeal [in a habeas motion] if he delivers the notice to prison officials within the time specified."). The Court will assume that Flores delivered the notice to prison officials the same day that he signed it — December 13, 2006 — a reasonable assumption in light of the fact that his motion was stamped received by this Court's Pro Se Office on December 18, 2006.
Flores argues that his motion is timely because it was filed "within one year of the Court of Appeals Order dated June 6, 2006." (Mot. 1.) That order, however, did not deal with Flores's appeal of his conviction, but rather with his appeal of the denial of his application for the appointment of counsel to pursue a motion pursuant to § 2255. As noted above, the limitations period for filing Flores's motion began to run on July 20, 2004, when his conviction became final, and not, as he assumes, on June 6, 2006.
The question then arises whether the running of the limitations period was tolled during the pendency of Flores's application for the appointment of counsel. This question presents both legal and factual issues. Section 2255 contains no provision tolling the limitation period during the pendency of such an application. Section 2255's statute of limitations may be equitably tolled in "rare and exceptional circumstance[s]." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citations and internal quotation marks omitted). The Second Circuit has emphasized, however, that
In order to equitably toll [§ 2255's] limitations period, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." [Id.] This formulation "requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances . . . and the lateness of his filing." Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000). As one component of the causation showing, the petitioner must establish that he diligently pursued his application during the time that he seeks to have tolled. See id. at 134. If the petitioner is unable to establish that he diligently attempted to file his petition, the extraordinary circumstances on which his tolling claim is based cannot be said to have caused the lateness of his petition. See Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001).Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004). Thus, tolling is permissible only if "`the party seeking equitable tolling [has] acted with reasonable diligence throughout the period he seeks to toll.'" Burrell v. United States, 467 F.3d 160, 167 n. 6 (2d Cir. 2006), quoting Smith v. McGinnis, 208 F.3d at 17. See also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) ("Federal courts have typically extended equitable relief [tolling a statute of limitations] only sparingly. . . . We have generally been . . . [un]forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.") (citations omitted).
It is not clear that Flores's circumstances come within this restrictive language. Nothing prevented Flores from filing a § 2255 motion in a timely manner while his motion for appointment of counsel was pending. As the Second Circuit has pointed out in rejecting a claim of equitable tolling based on incompetence of counsel, "petitioners often are fully capable of preparing and filing their habeas petitions pro se, and pro se status does not in itself constitute an extraordinary circumstance meriting tolling." Doe v. Menefee, 391 F.3d at 175 (citation omitted). Indeed, Flores's present petition, filed pro se after the denial of his application for counsel, demonstrates his own capacity to do so. Flores could have filed that petition in a timely manner, and then moved for the appointment of counsel to assist in its prosecution. Instead, he chose to seek appointment of counsel before filing his petition, and to engage in a time-consuming appeal of the denial of that request. Moreover, since Flores was specifically notified by the Second Circuit panel on his direct appeal that he "must . . . make his section 2255 motion within one year after the latest of the dates specified in that section," United States v. Doe, 365 F.3d 150, 154 (2d Cir. 2004), he was on notice of the one-year statute of limitations associated with § 2255 motions, and his dilatory strategy of pursuing appointment of counsel in advance of filing his motion could be seen as something less than the most diligent pursuit of the merits of his argument.
Moreover, the argument he presents here was made on his behalf by counsel in his original appeal of his conviction, and reiterated in his pro se application for appointment of counsel, in essentially the same terms as it is in the present petition.
Nevertheless, in the context of Title VII cases, courts have found equitable tolling appropriate where a motion for appointment of counsel is pending. Harris v. Walgreen's Distrib, Ctr., 456 F.2d 588, 591-92 (6th Cir. 1972); Harris v. National Tea Co., 454 F.2d 307, 310 (7th Cir. 1971). Although none of these cases applied equitable tolling for an application for the appointment of counsel in the habeas context, it is reasonable to believe that equitable tolling would apply consistently in those situations where it applies at all. As the Sixth Circuit pointed out in Harris v. Walgreen's, the filing of an application for the appointment of counsel is for at least some litigants "a necessary predicate to the filing of suit," which "serve[s] the legislative purpose of prompt notice contained in the statute." 456 F.2d at 591. In the habeas context as well, a motion for the appointment of counsel demonstrates a prisoner's desire to pursue a petition for post-conviction relief. Moreover, having chosen to pursue the appointment of counsel, Flores was reasonably diligent in pursuing that motion. For example, he filed his notice of appeal from the Court's judgment denying his appointment of counsel on the same day that the Court's order was entered on the docket. While Flores may not have pursued the most efficient method of pursuing his claims, it cannot be said that he slept on them.
Both the Supreme Court and the Second Circuit have cited Harris v. Walgreen's without apparent disapproval. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984); South v. Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d Cir. 1994) ("The doctrine of equitable tolling has also been applied . . . where a motion for the appointment of counsel is pending."); see also Jenkins v. Potter, 271 F. Supp. 2d 557, 563 (S.D.N.Y. 2003) (citing Saab Cars); Moore v. Potter, 217 F. Supp. 2d 364, 373 (E.D.N.Y. 2002) (citing Saab Cars); Redlich v. Albany Law School of Union University, 899 F. Supp. 100, 104 (N.D.N.Y. 1995) (citingBaldwin); Wall v. Nat'l Broadcasting Co., Inc., 768 F. Supp. 470, 475 (S.D.N.Y. 1991) (citing Baldwin).
Equitable tolling does not apply to all limitations periods.See, e.g., United States v. Beggerly, 524 U.S. 38, 48 (1998) (equitable tolling held "inconsistent with the text" of the Quiet Title Act); United States v. Brockamp, 519 U.S. 347, 347-48 (1997) (equitable tolling not applicable to tax refund claims pursuant to 26 U.S.C. § 6511, in part because "[r]eading `equitable tolling' into the statute could create serious administrative problems" for the IRS).
Indeed, had Flores simply styled his pleading, which addressed the merits of his claims in any event, a combined motion under § 2255 and application for counsel, the motion would clearly have been timely. Had he done so, the Court (which similarly addressed the merits of the motion in deciding the application for counsel), could simply have denied the petition at that time, which would have permitted Flores to seek a certificate of appealability on the merits. Because of the risks to future petitions for collateral review, the Court could not simply have deemed the application for counsel a motion under § 2255, and denied it on the merits. Castro v. United States, 540 U.S. 375, 381-83 (2003). However, it would be harsh indeed to hold that a pro se prisoner's attempt to pursue his claims effectively by seeking the appointment of counsel rendered his motion untimely simply because he failed to characterize his papers in a way that would have avoided the entire timeliness issue.
Even if it is assumed that, as a matter of law, Flores's application for counsel could toll the running of the limitations period, the factual record is unclear as to whether such tolling would render his petition timely. The exact date that Flores applied for the appointment of counsel cannot be ascertained from the record. Apparently, Flores's original application to this Court was never docketed, and the Court has been unable to locate any copy of the application in its chambers file. Plainly, it must have been made before January 24, 2005, the date of this Court's opinion denying his application for counsel. That date, in turn, was six months and four days after Flores's original conviction became final. The Second Circuit finally disposed of Flores's appeal from this Court's denial of his application for counsel on June 6, 2006. Flores filed his § 2255 motion on December 13, 2006, exactly six months and one week later. Thus, if the application for appointment of counsel tolled the limitations period, and if Flores filed that application the day before the Court decided it, his eventual petition under § 2255 would be untimely, by less than two weeks.
The opinion was not docketed for some time thereafter, apparently due to processing delay in the Clerk's office due to the fact that the opinion (like Flores's original appeal) was styled United States v. Doe, while the rest of the docket was under his true name.
It would have been impossible, however, for the Court to have disposed of Flores's application in a day, and hardly likely that it could have done so in less than two weeks. The Court wrote a detailed opinion on the matter, which does not appear to be the work of a day or two. Moreover, given the prison mail box rule discussed above, and the processing delays endemic to the transmission of pro se applications from the Court's Pro Se Office (where such prisoner applications are received) to the assigned judge, it is extremely likely that the petition was dated and mailed (and thus deemed filed) more than two weeks before the Court's order. Since "[p]ro se habeas petitioners are to be afforded `the benefit of any doubt,'" Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002), quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th Cir. 1985), and since the more reasonable inference in any event is that Flores's application for counsel was filed more than two weeks before January 10, 2005, equitable tolling would thus render his petition timely.
As is often the case with habeas applications, the difficulty of the preliminary procedural issues is out of all proportion to the merits of the petition itself. Regardless of the timeliness of Flores's motion, it is without merit. The Court fully discussed the merits of Flores's claim of ineffective assistance in denying his application for appointment of counsel. See United States v. Doe, No. 01 Cr. 782, 2005 WL 167601, at *4-7 (S.D.N.Y. Jan. 25, 2005). For the reasons stated in that opinion, counsel did not render ineffective assistance.
CONCLUSION
Accordingly, for the reasons set forth above, Flores's motion pursuant to 28 U.S.C. § 2255 is dismissed pursuant to Rule 4(b). Because he has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is denied. However, permission is granted for Flores to pursue any available appellate remedies in forma pauperis.
SO ORDERED.