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rejecting defendant's "newly discovered evidence" claim because he did not raise it until "881 days after this (new evidence) was discovered, and 391 days after the Appellate Division's order was entered."
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01 Civ. 6404 (SHS)(JCF).
March 11, 2002
James Kousouros, Esq., Attorney for Petitioner, New York.
Nancy D. Killian, Esq., Assistant District Attorney, Bronx, New York.
REPORT AND RECOMMENDATION
Jimmy Aponte brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for murder, assault, robbery, and criminal possession of a weapon. The respondent moves to dismiss the petition, claiming that it is time-barred under the statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), 28 U.S.C. § 2244(d)(1). For the following reasons, I recommend that the respondent's motion be granted and the petition be dismissed.
Background
On February 24, 1983, a jury in New York State Supreme Court, Bronx County, convicted Mr. Aponte of murder in the second degree, assault in the first degree, two counts of robbery in the first degree, and criminal possession of a weapon in the second degree.
The petitioner was sentenced to serve consecutive indeterminate terms of twenty-five years to life on the murder conviction and five to fifteen years on the assault conviction. He was also initially sentenced to concurrent indeterminate terms of twelve and one-half to twenty-five years on each robbery conviction and eight and one-third to twenty-five years for weapons possession.
Mr. Aponte appealed to the Appellate Division, First Department, and on April 14, 1987, that court modified the judgment of conviction by reducing his sentence for criminal possession of a weapon to five to fifteen years since the initial sentence was unauthorized for second-degree weapons possession, a class C felony. The judgment of conviction was affirmed in all other respects. People v. Aponte, 129 A.D.2d 461, 462, 514 N.Y.S.2d 25, 26 (1st Dep't 1987). The Court of Appeals denied the petitioner's application for leave to appeal on April 27, 1988. People v. Aponte, 71 N.Y.2d 966, 529 N.Y.S.2d 77 (1988).
On August 8, 1996, Mr. Aponte filed a petition for a writ of habeas corpus in New York State Supreme Court, Dutchess County. (Petition, Exh. B). That petition was denied on December 16, 1996, and the petitioner was served with notice of entry of the decision and order on December 26, 1996. (Petition, Exh. C; Affidavit of Nancy D. Killian dated Sept. 24, 2001 ("Killian Aff."), Exh. 10).
On August 6, 1998, Mr. Aponte moved in the Supreme Court, Bronx County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. (Petition, Exh. D).
This otion was denied without hearing on April 26, 1999, and the prosecutor sent the petitioner's attorney notice of entry of the April 26 order on May 12, 1999. (Petition, Exh. G; Killian Aff., Exh. 20). On March 28, 2000, the petitioner applied for leave to appeal the denial of his CPL § 440.10 motion to the Appellate Division, First Department. (Killian Aff., Exh. 21). The Appellate Division denied permission in an order dated June 12, 2000, which was entered June 20, 2000. (Killian Aff., Exh. 23). Mr. Aponte then filed the instant petition for writ of habeas corpus on July 16, 2001.
Discussion
A. AEDPA Statute of Limitations
The respondent argues that Mr. Aponte's habeas corpus petition is time-barred under 28 U.S.C. § 2244(d)(1). The AEDPA imposes a one-year period of limitations for habeas corpus petitions, running 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 filing 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.28 U.S.C. § 2244(d)(1). The AEDPA does not specify what limitations period applies to prisoners whose convictions became final prior to the statute's effective date. However, in Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998), the Second Circuit found that an inmate in this category is entitled to a one-year grace period from the date of enactment of the AEDPA, April 24, 1996, in which to file a habeas petition.
Mr. Aponte's conviction became final before the AEDPA was enacted. Therefore, he had until April 24, 1997, to file his petition. Mr. Aponte filed the instant petition on July 16, 2001, well beyond the one-year grace period. However, the AEDPA provides that the limitations period shall be suspended for "[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." 28 U.S.C. § 2244(d)(2). The Second Circuit has further held that this tolling provision applies to the one-year grace period established in Ross. Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] motion should be considered `pending' under § 2244(d)(2) from the time it is first filed until the time a final decision has been made on its merits, including the time it is pending on appeal." Duncan v. Griener, No. 97 Civ. 8754, 1999 WL 20890, at *3 (S.D.N.Y. Jan. 19, 1999) (citation omitted).
Mr. Aponte's first such collateral motion was his initial petition for a writ of habeas corpus, filed in state court on August 8, 1996, 106 days into the limitations period. It then tolled until notice that the court had denied the petition was sent on December 26, 1996. Thereafter, 588 days elapsed until August 6, 1998, the date of Mr. Aponte's CPL § 440.10 motion. The limitations period then tolled again until June 20, 2000, when the Appellate Division entered its order denying the petitioner's appeal. Mr. Aponte filed the current petition for writ of habeas corpus 391 days later. Excluding the time tolled for pending collateral proceedings, the petition was filed 1085 days after April 24, 1996. Thus, Mr. Aponte was a total of 720 days late in filing his petition for writ of habeas corpus, and it is consequently time-barred.
There is conflicting caselaw with respect to whether the limitations period is suspended until the state court issues its decision or until notice of entry is served. Compare Davis v. McLaughlin, 01 Civ. 6673, 2001 WL 1537554, at *2 (S.D.N.Y. Nov. 30, 2001) (limitations period begins to run five days after state Supreme Court mailed notice of entry to petitioner), with Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (calculating limitations period from date when Appellate Division's denial of post-conviction relief was filed), and Robinson v. Ricks, 153 F. Supp.2d 155, 158-59 (E.D.N.Y. 2001) (calculating limitations period from when state Supreme Court issued order denying post-conviction relief). For the purposes of the instant action, I will consider the limitations period tolled until the notice of entry was sent both because this gives the petitioner the benefit of the doubt and because the respondent has not argued otherwise. In any event, it does not affect the ultimate outcome in this case. Similarly, adding five days for the time it would take notice to arrive by mail would not change the result here.
B. Newly Discovered Evidence
Mr. Aponte, however, disputes this calculation and argues that the statute of limitations did not begin to run until he became aware of newly discovered evidence. Under § 2244(d)(1)(D), a petitioner has a one-year period in which to seek federal habeas relief beginning from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Mr. Aponte was tried together with Phillip Nieves. When Mr. Nieves was arrested in connection with the crime he made statements incriminating himself and two other individuals, neither of whom was identified as Mr. Aponte. At trial, Detective Richard Quelch verified that Mr. Nieves made these admissions when he was arrested. (Trial Record, Volume I at 7-9, attached to Affidavit of Phillip Nieves dated March 5, 1999 ("Nieves Aff."), included as Exh. F to Petition). During Mr. Nieves' cross-examination, however, he denied ever making such statements or even speaking to Detective Quelch. (Trial Record, Volume II at 184-87, included as Exh. J to Petition). Mr. Nieves now claims that his trial testimony was false and that the statements he made at the time of his arrest were true.
In a letter to petitioner's appellate counsel, Mr. Nieves alleged that his confession at the time of his arrest, "wasn't [sic] made up, I told the truth." (Letter to Irving J. Panzer, Esq. dated Feb. 16, 1999, attached to Nieves Aff.). In a second letter, Mr. Nieves reaffirmed the statements he made in his first letter and agreed to sign an affidavit to that effect. In his affidavit, Mr. Nieves states, "Jimmy Aponte was never at any time whatsoever in any way or manner connected with the robbery and subsequent murder that took place at that time. He was not present and is entirely innocent of any and all charges in connection therewith. I know this of my own knowledge because I was there." (Nieves Aff. ¶ 6).
Mr. Aponte contends that Mr. Nieves' recantations are newly discovered evidence that reset the clock under the AEDPA. The petitioner's argument fails for two reasons. First, the fact that Mr. Nieves has revised his position on the truthfulness of the statements he made upon arrest does not change the fact that they were admitted into evidence and testified to at trial. Thus, nothing "new" was contained in Mr. Nieves' letters and affidavit when he confirmed the veracity of these statements. Second, even if this did constitute new evidence the petition would still be time-barred. The date of Mr. Nieves' first letter was February 16, 1999. Mr. Aponte did not raise the issue of new evidence until he filed the present petition on July 16, 2001, some 881 days after this "new evidence" was discovered, and 391 days after the Appellate Division's order was entered on June 20, 2000. Thus, the purported new evidence does not save Mr. Aponte's petition from being time-barred.
C. Tolling for Supreme Court Review
Finally, relying on Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N Y 1997), Mr. Aponte contends that his petition was timely because he was entitled to an additional ninety days to allow for the time during which he could have sought certiorari from the United States Supreme Court.
This argument has no merit. The AEDPA limitations period is tolled only during the time that "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (emphasis added). Accordingly, the Second Circuit recently joined all other courts of appeal that have addressed the issue and held that the limitations period will not be tolled for the ninety-day period if the petitioner did not file a certiorari petition to the United States Supreme Court. See Smaldone v. Senkowski, 273 F.3d 133, 137-38 (2d Cir. 2001); Stokes v. District Attorney of County of Philadelphia, 247 F.3d 539, 542 (3d Cir.), cert. denied, U.S., 122 S.Ct. 364 (2001); Crawley v. Catoe, 257 F.3d 395, 401 (4th Cir. 2001), cert. denied, U.S., 122 S.Ct. 811 (2002); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 (2000); Isham v. Randle, 226 F.3d 691, 695 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001); Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000), cert. denied, 532 U.S. 950 (2001); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.), cert denied, 532 U.S. 998 (2001); Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir.), withdrawn on other grounds, 249 F.3d 1188 (9th Cir. 2001); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000), cert. denied, 531 U.S. 1166 (2001). Here, Mr. Aponte never sought certiorari, and since an application for review was therefore neither "properly filed" nor "pending," the limitations period did not toll for an additional ninety days.
Conclusion
For the reasons set forth above, I recommend that the respondent's motion to dismiss the petition be granted. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Sidney H. Stein, Room 1010, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.