Opinion
No. 00 Civ. 7277(LTS)(JCF)
May 29, 2002
MEMORANDUM OPINION AND ORDER
Petitioner John Daniel seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his due process rights were violated when three sidebar conferences were held in his absence in the course of the criminal trial leading to his May 7, 1993 conviction, and that he was denied adequate assistance of appellate counsel. This Court's Pro Se Office received Mr. Daniel's petition on July 24, 2000. On September 27, 2000, Chief Judge Mukasey issued an order requiring Mr. Daniel to show cause why the petition should not be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Upon review of a written statement and other documents submitted by Mr. Daniel in response to Judge Mukasey's order, the Court determined that additional information would be useful in determining whether the petition was time-barred and whether any tolling of the statute of limitation was warranted by Mr. Daniel's circumstances. Accordingly, the Court issued an order, dated January 25, 2001, requesting copies of documents and information concerning any motions and/or court proceedings commenced by Petitioner to challenge his conviction. In addition, Petitioner was asked to provide information and copies of records concerning a brain deficiency from which he claims to suffer and which he had alleged, in his response to Chief Judge Mukasey' s order, was partly responsible for his delay in filing the petition. (See Daniel Aff., 10/27/00, at 2.) The Court also inquired as to whether Petitioner had received any assistance in preparing his petition and subsequent submissions, and whether he believed any state or governmental action had prevented him from filing the petition in a timely manner. When Petitioner failed to respond to the January 25, 2001, order, the Court issued an order on February 13, 2001, indicating that failure to provide the requested information would result in the petition being dismissed as time-barred. In response, Petitioner provided the Court with a letter, an affirmation, and some documentary evidence in support of his written submissions.
The dates on the written submissions (February 16, 2000 for the letter and February 19, 2000 for the affirmation) were apparently incorrect; the Court received Petitioner's submissions in February of 2001.
After thorough review of all materials submitted by Mr. Daniel in support of his petition, the Court finds that his petition for habeas corpus is time barred, and that it must therefore be dismissed.
BACKGROUND
Petitioner was convicted on two counts of rape in the first degree on May 7, 1993, following a jury trial in the New York State Supreme Court, Bronx County. He was sentenced, as a persistent violent felony offender, to concurrent terms of ten years to life imprisonment. The Appellate Division, First Department, affirmed his conviction on April 11, 1995. On August 25, 1995, the New York State Court of Appeals denied Petitioner leave to appeal the conviction to that court. Mr. Daniel did not seek further direct review of the conviction. He did, however, attempt to attack it collaterally.
By papers dated December 5, 1997, Mr. Daniel moved the Supreme Court, Bronx County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law section 440.10. N.Y. Crim. Proc. Law § 440.10 (McKinney 1994). He argued that his exclusion from certain sidebar conferences during jury selection had violated his due process rights and state law, and that he had received ineffective assistance of counsel because his attorney was not prepared to question a witness at trial and had failed to investigate the anticipated testimony of that witness. Mr. Daniel's section 440.10 motion was denied on February 17, 1998. He sought to appeal the denial of relief to the Appellate Division, First Department, of the New York State Supreme Court, but was denied leave to appeal on July 2, 1998.
By notice of motion dated April 12, 1999, Mr. Daniel petitioned the Appellate Division of the Supreme Court, First Department, New York County, for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. The state court denied his petition on February 29, 2000. As noted above, this Court received the instant petition on July 24, 2000.
DISCUSSION
The AEDPA requires that habeas petitions brought under 28 U.S.C. § 2254 be filed no later than one year after a conviction becomes final. This one-year period of limitation begins to run from the latest of: the date on which the judgment became final by the conclusion of direct review or the expiration of time to seek such review; the date on which the impediment to filing an application created by unlawful state action is removed, if the petitioner was prevented from filing by such action; the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right is newly recognized and made retroactive to cases on collateral review; or, the date on which the factual predicate of the claim(s) presented could have been discovered by due diligence. 28 U.S.C. § 2244(a) (West 1994 Supp. 2001). The relevant date from which the limitations period began to run for Petitioner was the date on which judgment became final, as Petitioner has not alleged that his delay in filing was due to unlawful state action, that his claim is based on a newly recognized constitutional right, or that he belatedly discovered the factual underpinnings of his claim. A judgment becomes final when a petitioner's time to seek direct review, either by state courts or the United States Supreme Court, has expired: "the AEDPA limitations period . . . does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has passed." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
Pursuant to Rule 13 of the Rules of the Supreme Court of the United States, a petition for a writ of certiorari to review judgment in a case, entered by a state court of last resort or a United States court of appeals, is timely when it is filed with the Clerk of Court within 90 days after entry of the judgment.
Certain events may toll the one-year grace period allowed under AEDPA. Properly filed applications for state post-conviction or other collateral review, such as motions made pursuant to New York Criminal Procedure Law Section 440.10 to vacate judgments of conviction or coram nobis petitions, may toll the one-year limit for filing a habeas corpus petition. See 28 U.S.C. § 2244(d)(2); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Likewise, equitable tolling applies to toll the statute of limitations but only in the "rare and exceptional circumstance." McGinnis, 208 F.3d at 17 (internal quotation marks and citation omitted).
The Court has authority to raise the issue of the timeliness of a habeas petition of its own accord (sua sponte). Acosta v. Artuz, 221 F.3d 117, 124 (2dCir. 2000). "The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time." Acosta, 221 F.3d at 123. Because the statute of limitations implicates the interests of federal and state courts, as well as the interests of society, it is proper for the Court to raise the issue of timeliness, as it does here,sua sponte. Id.
Mr. Daniel's judgment of conviction became final on approximately November 25, 1995, at the conclusion of the ninety days following the New York State Court of Appeals' denial of leave to appeal his conviction, during which time he could have sought certiorari in the United States Supreme Court. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Because Mr. Daniel's conviction became final before the enactment of AEDPA, the one-year period of limitation began to run on April 24, 1997, the date of enactment, making his deadline to file a habeas petition April 24, 1997, absent any tolling. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
As previously noted, the clock is stopped for the time in which a petitioner seeks relief by way of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent claim or judgment." 28 U.S.C. § 2244(d)(1)(A); see McGinnis, 208 F.3d at 17; Luke v. Edwards, 168 F. Supp.2d 104, 108 (S.D.N Y 2001). Mr. Daniel's 440.10 motion, filed on December 5, 1997, did not, however, toll the statute of limitation because it was filed more than seven months after the AEDPA deadline for filing a habeas petition had passed. Likewise, Mr. Daniel's later-filed petition for a writ of error coram nobis was filed more than two years after the AEDPA one-year limitation had run, and could not, therefore, toll the statute.
Mr. Daniel's applications for state court relief warranting no tolling, the Court turns to the question whether equitable tolling is appropriate. A petitioner seeking equitable tolling must show that "extraordinary circumstances prevented him from filing his petition on time." McGinnis, 208 F.3d at 17. "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id. The burden is on the petitioner to show that equitable tolling is warranted. Torres v. Miller, No. 99 Civ. 0580 (MBM), 1999 WL 714349, at * 6 (S.D.N.Y. Aug. 27, 1999).
In his affirmation, dated October 27, 2000, submitted in response to Judge Mukasey's September 27, 2000 order, Mr. Daniel indicated that a reason for his delay is that he suffers from a brain deficiency as a result of an injury suffered in 1990. Along with that affirmation, Petitioner provided a one-page memorandum, dated November 16, 1999, from Dr. Joseph Bucknavage, which reports the results of an MRI study of Mr. Daniel's brain, conducted on November 15, 1999, and notes inter alia, that "there is an ill-defined area of increased signal intensity within the right occipital lobe consistent with a right occipital infarct." (Daniel Aff., 10/27/00, Ex., Bucknavage Mem., 11/16/99.) An addendum, dated November 30, 1999, to Dr. Bucknavage's memorandum indicates that the increased signal intensity is consistent with "encephalomalacia," with uncertain etiology, but could be related to an old infarct or trauma. (Daniel Aff., 10/27/00, Ex., Bucknavage Mem., 11/30/99.) No further information concerning Petitioner's brain condition was provided to the Court at that time.
In response to the Court's January 25, 2001 order, Mr. Daniel submitted a letter, dated February 16, 2000, in which he described his condition as a brain tumor that prevents him from doing "normal work," and indicated that he has symptoms of "neurofibromatosis," with the showing of brown spots on his body. (Daniel letter of Feb. 16, 2001 ("2/16/01 ltr."), at 1.) Petitioner attached to the February 16 correspondence two photocopied pages, numbered pages 67 and 68, from what appears to be a chapter entitled "Brain and Nerve Disorders" from the LH Hospital Book of Symptoms and Solutions. These pages describe neurofibromatosis as a genetic disorder that can cause non-cancerous tumors to grow on nerves anywhere in the body, with manifestations and severity that vary widely from person to person, and that causes some people to "have severe medical problems, [although] most do not and are able to lead normal lives." (2/16/01 ltr., Ex. at 67.) A brief section of the same excerpt, entitled "Self-Care," recommends that a person suffering from neurofibromatosis may consider counseling to deal with psychological discomfort caused by the visibility of the tumors. (2/16/01 ltr., Ex. at 68.) In addition to the information provided regarding neurofibromatosis, Mr. Daniel's letter attributed his petition filing delay to inability to obtain assistance in filing the habeas petition because "no one in prison or in society likes a rapist. . . ." (2/16/01 ltr. at 2.)
After the Court issued its February 13, 2001 order, seeking specific responses to the questions posed in its previous order, Mr. Daniel submitted copies of several papers documenting his efforts to seek post-conviction relief and four pages of hand-written answers to some of those questions. In this February 19, 2001, submission to the Court, Mr. Daniel indicated that he believes that he suffers from "neurofibrotosis," which causes brown rounded spots on his legs, and that the two page excerpt previously provided to the Court "explain[s] . . . [Petitioner's] whole entire brain deficiency disorder." (Daniel Aff., 2/19/01, at 3.) In addition, Mr. Daniel submitted four prescription drug labels for ibuprofen, three of which were prescribed to be taken "as needed" for headache pain. (Daniel Aff., 2/19/01, Ex., labels dated 01/27/00, 06/12/00, 10/03/00, 01/05/01.) Mr. Daniel reiterated his belief that one of the reasons he had difficulty getting assistance in preparing his legal work is because the "other inmates hate all inmates who are in prison for rape." (Daniel Aff., 02/19/01, at 1.)
The Court has considered thoroughly all of the information provided by Petitioner, including Mr. Daniel's descriptions of his mental and physical condition and his assertions that others were unwilling to assist him because of the nature of his conviction. Few courts have addressed the issue of whether a petitioner's physical and/or mental illness can toll the one-year limitation period. See Torres, 1999 WL 714349, at *6 (discussing cases); Rhodes v. Senkowski, 82 F. Supp.2d 160, 168 (S.D.N Y 2000). Those that have addressed whether tolling is warranted under such conditions have required that the petitioner show that the physical or mental condition "'beyond [his] control make[s] it impossible to file a petition'" within the one-year statute of limitation under AEDPA. Rhodes, 82 F. Supp.2d at 167 (citation omitted); Torres, 1999 WL 714349, at * 8 ("[P]hysical or mental illness could toll the AEDPA's one-year time period to file a habeas corpus petition; however, a petitioner must allege more than the mere existence of physical or mental ailments to justify equitable tolling. A petitioner has the burden to show that these health problems rendered him unable to pursue his legal rights during the one-year time period."). Petitioner has failed to show extraordinary circumstances or reasonable diligence sufficient to entitle him to equitable tolling.
Petitioner has provided insufficient documentation of a mental condition so severe as to have prevented him from filing his habeas petition during the one-year period ending on April 24, 1997. The doctor's memorandum, dated November 16, 1999, and addendum, dated November 30, 1999, do not provide any insight into Petitioner's condition during the one-year period for filing under AEDPA. Nor does Dr. Bucknavage's report suggest that Petitioner's physical or mental condition during that period was so debilitating as to render him incapable of preparing a petition to the Court; indeed, it does not indicate that Petitioner's functioning was impeded at all. Cf. Calderon v. United States Dist. Court for the Central Dist., 163 F.3d 530, 541 (9th Cir. 1998) (finding it appropriate to toll AEDPA's time bar until district court could make competency determination where record showed that petitioner had been having serious mental problems for many years and examining psychiatrist's report concluded that petitioner was repeatedly diagnosed with psychotic disorder, including delusions, hallucination, inappropriate affect, social withdrawal, bizarreness, fragmentation of thinking and incoherence, and psychiatrist concluded that disorder prevented petitioner from appreciating his legal position and making rational choices with respect to court proceedings, citing Calderon v. United States Dist. Court for the Central Dist., 127 F.3d 782, 788 n. 1 (9th Cir. 1997) (Tashima, J., dissenting)). Nor do the prescription drug labels, dating from January of 2000 to January of 2001, indicate that Petitioner suffered from a debilitating medical condition during the relevant time period.
Mr. Daniel's representations to the Court concerning the effects of his alleged neurofibromatosis condition are also insufficient to warrant equitable tolling. See, e.g., Torres, 1999 WL 71349, at * 8 (1 "[Petitioner's] conclusory contentions are simply insufficient to meet his burden," and citing cases). Petitioner has not submitted any medical evidence to show that he, in fact, suffered from such condition during the period in which his habeas petition should have been filed. Nor do his supporting submissions (written statements, two photocopied pages from what appears to be a medical journal, and drug labels for prescriptions of ibuprofen) suggest that such disorder would have impaired his functioning severely enough to have rendered him incapable of filing a petition for habeas corpus, even if it could be shown that he suffered from medical condition described. Rather, what little evidence was proffered actually supports an opposite conclusion: the photocopied pages from LH Hospital Book of Symstoms and Solutions indicate that most people who suffer from the disorder do not have severe medical problems, "and are able to lead normal lives." (2/16/01 letter, Ex. at 67.)
Petitioner's assertion that his failure to make a timely filing was caused, in part, by the unwillingness of others (none of whom he alleges were state actors) to help him because of the nature of the crime of which he was convicted also fails to provide a grounds on which to equitably toll the AEDPA limitation period. This Court's research simply reveals no support for such a proposition. Cf. Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) (no constitutional right to representation by counsel in habeas corpus proceedings).
Finally, there is no indication that Petitioner used reasonable diligence during the time period he seeks to toll, as would be required to justify equitable tolling. McGinnis, 208 F.3d at 17. "A petitioner . . . 'must have acted with reasonable diligence throughout the period he seeks to toll.'" Luke v. Edwards, 168 F. Supp.2d 104, 107 (S.D.N.Y. 2001) (citation omitted). As noted above, Mr. Daniel did not file his applications for post-conviction or collateral state court review until after the period in which to file his habeas petition had passed. Nor has he offered any viable explanation for his inactivity during the relevant period. Even subtracting the period of time during which he sought post-conviction or collateral review from state court (roughly thirteen months), several years had passed from the conclusion of direct review of his conviction, on November 25, 1995, until he sought habeas relief from this Court on July 24, 2000. See Montalvo v. Strack, No. 99 Civ. 5087 (JGK), 2000 WL 718439, at * 3 (S.D.N.Y. June 5, 2000) (finding no showing of reasonable diligence for equitable tolling purposes where nearly three and one-half years passed from conclusion of direct review to filing and, "[e]ven subtracting the time that [petitioner's] state collateral review was pending, the petitioner's delay is measured in years."). Petitioner has not demonstrated that he acted with reasonable diligence to obtain relief.
Mr. Daniel's petition for a writ of habeas corpus is, therefore, dismissed as untimely. The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 1994 Supp. 2001). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West 1993); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appeal.
SO ORDERED.