Opinion
04 Civ. 3404 (LAK).
November 2, 2004
ORDER
Petitioner was convicted in a New York state court of two counts of assault in the first degree and one count of criminal contempt in the first degree. He seeks relief pursuant to 28 U.S.C. § 2254 on the grounds that the state trial court violated his due process rights under the Fourteenth Amendment by (1) denying his request for a psychiatric examination in support of an insanity defense, and (2) declining to admit certain evidence allegedly bearing upon his justification defense.
By order dated May 4, 2004, Chief Judge Mukasey granted petitioner 60 days leave to file an amended petition to correct certain deficiencies in the original application. In particular, petitioner was instructed to (1) clearly set forth the constitutional grounds being raised in the petition, (2) identify the steps he took to exhaust his claims in the state courts, and (3) show cause why the petition is not time barred. Judge Mukasey noted that the petition was filed on February 20, 2004, more than two years and eight months after the judgment became final on June 1, 2001. Petitioner subsequently filed an amended petition, which is the subject of this Order.
Petitioner does not dispute that his application was filed more than one year after the judgment became final. Instead, he argues that the statute should be equitably tolled because he "is a lay-man in the law and has a reading test score of 2.3 (second grade, third month)." He explains, "Because of petitioner's low reading ability and petitioner [ sic] unfamiliarity with the law and the lack of inmate law clerks who would help petitioner, petitioner did not know about the one-year limitations."
This argument fails. "To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (citing Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). Petitioner has not demonstrated that he acted with reasonable diligence during the period he wishes to toll, nor has he identified extraordinary circumstances beyond his control that prevented him from filing this petition. Ignorance of the law and an inability to read or write do not constitute extraordinary circumstances that would justify equitable tolling. E.g., Huang v. United States, No. 03 Civ. 3755 (RPP), 2003 WL 22272584, at *3 (S.D.N.Y. Oct. 2, 2003) ("The district courts in the Southern District have unanimously found that inability to speak English and lack of familiarity with the legal system are not `rare and exceptional' circumstances, and thus are not grounds for equitable tolling.") (citing cases); German v. United States, 209 F. Supp. 2d 288, 293 (S.D.N.Y. 2002) (inability to understand English and lack of a law library in Spanish do not constitute extraordinary circumstances that would justify equitable tolling). The petition therefore is time barred.
Accordingly, the petition is dismissed. As no substantial question is presented, the Court denies a certificate of appealability and certifies, pursuant to 28 U.S.C. § 1915, that an appeal herefrom would not be taken in good faith. The Clerk of the Court is directed to close the case.
SO ORDERED.