Opinion
00 CIV. 7984 (DLC)
January 17, 2003
Guy Youngblood, Petitioner Pro Se
Patrick J. Hynes, Esq.
OPINION AND ORDER
Guy Youngblood ("Youngblood") filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 on April 22, 1997. That petition was dismissed to permit Youngblood to exhaust one of his claims. Following exhaustion, Youngblood renewed his petition. Because Youngblood did not diligently pursue either the state court remedies to exhaust his claim, or the refiling of the petition, in his report of October 2, 2002 ("Report"), Magistrate Judge Pitman recommends that the petition be dismissed as barred by the one year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Youngblood objects to the Report. For the following reasons, the Report is adopted and the petition is dismissed.
BACKGROUND
As explained in this Court's prior Opinions, familiarity with which is assumed, Youngblood was convicted following trial in 1988 of murder and is serving a sentence of, inter alia, 21 years' to life imprisonment.See Youngblood v. Greiner, 1998 WL 720681 at *1 (S.D.N.Y. 1998). Following a direct appeal and collateral attacks on the conviction in state court, Youngblood filed a habeas petition on April 22, 1997. Id. at *3. Originally, this Court ruled that the petition was barred by AEDPA's one-year statute of limitations because it appeared that Youngblood's state court proceedings had ended in 1995. See Youngblood v. Greiner, No. 97 Civ. 3829 (S.D.N.Y. June 26, 1997). On October 24, however, this Court concluded that the petition survived preliminary review under Rule 4 of the Rules governing Section 2254 cases based on Youngblood's claim that evidence underlying one of his claims was first discovered in 1997.See Youngblood v. Greiner, No. 97 Civ. 3829 (S.D.N.Y. Oct. 24, 1997). The petition was referred to a Magistrate Judge for a report and recommendation. The report, issued on August 3, 1998, recommended a denial of Youngblood's claims on the merits.
In an Opinion of October 8, 1998, this Court described in some detail the history of Youngblood's prosecution and his attacks on his conviction through various state court proceedings, and addressed objections to the report by respondents that the petition should be dismissed as time-barred and because it contained an unexhausted claim. Using the date on the petition, the Court found that it was timely, having been signed and notarized two days before April 24, 1997. Finding, however, that one of Youngblood's claims was unexhausted, the petition was dismissed without prejudice "at the request of the petitioner." Youngblood, 1998 WL 720681 at *6 (S.D.N.Y. Oct. 13, 1998) ("October 8 Opinion"). An Order of November 17, 1998 rejected Youngblood's request, contained in an untimely motion for reconsideration, that the Court make certain findings of fact regarding the unexhausted claim. See Youngblood v. Greiner, No. 97 Civ. 3829 (S.D.N.Y. Nov. 17, 1998)
The October 8 Opinion also considered, and rejected, petitioner's argument that the alternative date of April 9, 1997, the date he received documents requested under the New York State Freedom of Information Act, should be used to start the one year period under AEDPA. Youngblood, 1998 WL 720681 at *4 n. 4.
In his Traverse brief, filed January 22, 1998, Youngblood had asked that his petition be dismissed without prejudice if it was determined that he had an unexhausted claim. Youngblood's objections to the August 3, 1998 report and recommendation acknowledge that his petition was filed just two days before the statute of limitations under AEDPA expired.
On March 11, 1999, 114 days after the motion for reconsideration was denied, Youngblood renewed a Section 440.10 motion on the ground of newly discovered evidence. On May 11, 2000, the Appellate Division denied the appeal that followed the trial court's rejection of the motion.
In a letter to the Court dated July 20, 2000, Youngblood requested an extension of time to file a new petition. The Honorable Sidney H. Stein rejected the request in an Order of August 3, 2000, on the ground that there was no jurisdiction to consider such a request. The Order further advised Youngblood that he must show that he acted with "reasonable diligence" throughout any period of time he seeks to toll.
Youngblood's renewed petition for a writ of habeas corpus is dated August 8, 2000. It is notarized with the date August 8, 2000, but is postmarked August 31. It was received by the Pro Se Office of this district on September 5, and docketed on October 19. The petition was referred to Magistrate Judge Pitman on October 30, 2000, and the Report recommending dismissal of the petition as untimely was issued on October 2, 2002.
DISCUSSION
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The Court reviews de novo those portions of the report to which an objection has been made. Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)
The Report recites that Youngblood has offered "no explanation" for either the 114 day delay in filing the Section 440.10 motion or the 89 day delay in filing the renewed petition. The Report concludes, as a consequence, that the doctrine of equitable tolling can not save the petition.
Youngblood submitted timely objections to the Report. He first argues that under the procedure described by the Second Circuit in 2001 inZarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001), the District Court should have stayed his petition in 1998, instead of dismissing it to give him an opportunity to exhaust a claim, or at least should have alerted him to the fact that AEDPA had a one-year statute of limitations and that a portion of that period had already elapsed. Youngblood was well aware of AEDPA's one year statute of limitations at the time his petition was dismissed in 1998. Indeed, it was as a result of that one year time limit that the Court had initially determined that the petition had to be dismissed as untimely. As noted above, the timeliness discussion in the October 8 Opinion makes clear the importance of the AEDPA limitations period, and that Youngblood's petition had been presumptively delivered to prison authorities with but two days remaining prior to its expiration. Youngblood's own submissions to the Court in 1998 recite his understanding that he had filed his petition within two days of the expiration of the statute of limitations.
As a result of Duncan v. Walker, 533 U.S. 167 (2001), it is now clear that Youngblood's time had already run when his petition was dismissed in 1998, since the time a petition is pending in federal court does not toll the AEDPA statute of limitations. Even without that knowledge, however, it is reasonable to expect that Youngblood knew as of the 1998 dismissal that he had only two days remaining in the statute of limitations period and was required at the very least to act with diligence in exhausting his state remedies and to return to federal court promptly.
Youngblood does not contend that he ever believed that the one year statute of limitations under AEDPA would begin to run again after the petition was dismissed without prejudice in 1998 to permit exhaustion.Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), made clear that the limitations period does not begin anew after collateral relief is pursued.
Liberally construing Youngblood's pro se submission, Youngblood next appears to argue that the delay of 114 days should be excused because he wrote a letter of November 30, 1998 to the Clerk of Court requesting an explanation of AEDPA's time requirements, an inquiry which was never answered. He contends that the delay of 89 days should be excused because he sought an extension of time to refile his petition, and refiled the petition five days after his request for an extension was denied. These arguments, only one of which was presented to the Magistrate Judge Pitman, are considered in turn.
The delay of 114 days accrued between the dismissal of the petition on November 17, 1998, and the filing of the 440.10 motion on March 11, 1999. Youngblood contends that essentially all of this time is attributable to the time he was waiting for a reply to a letter dated November 30, 1998 that he wrote to the Clerk of Court, a reply that never came. A copy of the November 30, 1998 letter appears for the first time in Youngblood's objections to the Report; it is not mentioned in his Traverse brief filed on December 3, 2001 in response to the opposition to his petition, nor is it in the Court file. The November 30 letter refers to the decision of October 8, 1998, but makes no reference to the decision of November 17, 1998. Youngblood never received a response to his November 30, 1998 letter. Even assuming that this letter was sent on November 30, 1998, it cannot excuse the almost four month gap between the dismissal of the Youngblood's first petition and his renewal of his 440.10 motion in state court. Even allowing for a reasonable time to wait for a response from the Clerk of Court, it cannot be said that Youngblood was diligent in returning to state court to exhaust his claims.
The letter of November 30 was addressed to the Clerk of Court of this District. It is that office's policy, in pro se matters, to forward such letters to Pro Se Office of this Court. Though the Pro Se office no longer has a file for Youngblood's 1997 petition, their policy is to forward such letters to the proper Judge's chambers. The Pro Se Office has no record of returning this letter to the petitioner for any reason, and as noted above, this letter is not in the chambers file nor the official court file.
The delay of 89 days occurred between the conclusion of the 440.10 appellate process on May 11, 2000 and the petition date of August 8, 2000. If the August 8 date is not the appropriate date to use under the prison mailbox rule, then the period of delay would be even longer. On July 20, 2000, Youngblood requested an extension of time to file a new habeas petition, which was denied by Judge Stein in an order of August 3, 2000. Youngblood's present petition bears a date just five days after the denial of the extension. Even if the July 20 letter is viewed as Youngblood's "return" to federal court, that return occurred more than two months after the end of his state proceedings. Again, he did not act with sufficient diligence to toll AEDPA's limitations period underZarvela.
Youngblood's petition was not postmarked until August 31, 2000, or received by the Pro Se Office until September 5.
Although not discussed in the Report, the request for an extension was discussed in Respondent's October 24, 2001 memorandum of law at page 4.
A certificate of appealability should issue where the petitioner has made a substantial showing of a denial of a federal right. Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000);Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). While every court that has reviewed Youngblood's claims on the merits has denied them, or in the case of the 1998 Magistrate Judge report, recommended their denial, Youngblood has a right to have those claims fully considered in a federal habeas petition at least once so long as he has complied with the procedural requirements for filing a habeas petition. Here, this Court's review of his claims on the merits is barred by its conclusion that the petition is untimely. It is appropriate, for the following reasons, that there be appellate review of the timeliness determination.
In 1998, when Youngblood's petition was dismissed without prejudice to permit exhaustion of one of his claims, the law regarding AEDPA's tolling provisions was still evolving. At the time of the dismissal, this Court did not give Youngblood any guidance as to the application of AEDPA's statute of limitations to any renewed petition he must file, even though the Court had determined in its October 8 Opinion that only two days had remained out of the one year statute of limitations. And, of course, the Court did not stay the petition to permit exhaustion. As Rodriguez v. Bennett, 303 F.3d 435, 439 (2d Cir. 2002), teaches, equitable tolling is available in such circumstances if a petitioner has acted with sufficient diligence. Because there are no bright line tests that can or should apply to an analysis of diligence, it is appropriate that a certificate of appealability issue with regard to the timeliness of this petition.
CONCLUSION
The recommendation of Magistrate Judge Pitman is adopted and the petition is dismissed. A certificate of appealability shall issue under 28 U.S.C. § 2253 solely with respect to the issue of whether AEDPA's statute of limitations should be equitably tolled in this case. With respect to his underlying claims, the petitioner has not yet made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I further find, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this Opinion and Order addressed to the statute of limitations issue would be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of Court shall dismiss this petition and close the case.
SO ORDERED: