Summary
appointing counsel to address Zarvela retroactivity where petitioner initiated exhaustion within 33 days and returned in 13 days
Summary of this case from Edwards v. GreinerOpinion
01 CIV. 9044 (DLC)
January 23, 2002
OPINION AND ORDER
The original petition for a writ of habeas corpus filed by this prisoner was timely. Thereafter, he voluntarily dismissed the federal petition to exhaust an additional claim. After promptly pursuing state court remedies, he promptly filed this petition. Largely because the Supreme Court's decision in Duncan v. Walker, 533 U.S. 167(2001), no longer permits exclusion of the time during which his original federal habeas petition was pending, this petition is untimely and presents the issue of whether the Second Circuit's recent decision in Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir. 2001), should apply retroactively and allow the Court to vacate the dismissal of the original petition. To address these issues in more detail, the Court will appoint counsel for the petitioner and require the petition to be served on the respondent.
BACKGROUND
On June 5, 1996, petitioner was convicted in New York State Supreme Court, New York County, of two counts of murder in the second degree. The Appellate Division, First Department affirmed the conviction on October 1, 1998, and the Court of Appeals denied petitioner leave to appeal to the state's highest court on December 11, 1998. See People v. DeVino, 688 N.Y.S.2d 114 (1st Dep't), appeal denied, 684 N.Y.S.2d 496(1998). Petitioner's conviction became final on March 11, 1999, when the ninety-day period to seek direct review from the United States Supreme Court by way of certiorari expired. Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000)
On December 30, 1999 — 294 days after his time to petition for certiorari had expired — petitioner filed a petition for a writ of error coram nobis in state court on the grounds of ineffective assistance of appellate counsel. The petition was denied on July 6, 2000. See People v. DeVino, 714 N.Y.S.2d 625 (1st Dep't 2000).
On December 30, 1999, petitioner placed within the Green Haven Correctional Facility mail depository his papers relating to the Motion for a Writ of Error Coram Nobis. Pursuant to the prison mailbox rule, this date stands as the date of filing. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001).
DeVino originally filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York on September 5, 2000. Rather than transferring the case to this Court, thus preserving the September 5 filing date, the Eastern District returned the petition to petitioner, with instructions to file it in this Court. This Court's Pro Se office first received DeVino's petition for habeas corpus on October 2, 2000.
This petition was received by the Pro Se office in the Eastern District on September 15, but Mr. DeVino's signature on the petition was notarized on September 5. Pursuant to the prison mailbox rule, it is appropriate to consider the September 5 date the filing date, for it is likely that DeVino handed the petition over to prison authorities to be mailed on or about that date. See Noble, 246 F.3d at 97-98.
By order dated November 20, 2000, petitioner was asked to submit an affirmation to show cause why his petition should not be dismissed as time barred. In an affirmation of January 4, 2001, DeVino explained that from March until November 1999, he was learning how to file a petition for a writ of error coram nobis, and that the actual filing was delayed until the end of December because the correctional facility was locked down and he had limited privileges.
In a letter received by this Court's Pro Se Office on January 12, 2001, the petitioner then requested that his initial petition be dismissed in order to permit exhaustion of state remedies. On February 15, 2001, Chief Judge Michael B. Mukasey issued an Order noting the petitioner's desire to withdraw his petition, and stating:
In light of AEDPA's one-year statute of limitations, petitioner is granted thirty (30) days to inform the Court whether he wishes to proceed with this action or withdraw it. Petitioner should be aware that if he withdraws the instant petition, he will have to file a new petition at a later date; he will not be allowed to "reopen" this proceedings [sic]
The petitioner confirmed his desire to withdraw the petition in a letter received by the Pro Se Office on February 28, and the petition was voluntarily dismissed on March 20, 2001.
On or about April 22, 2001 — 33 days after the federal petition was dismissed — petitioner filed a motion pursuant to New York Criminal Procedure Law §§ 440.10 and 440.20, which was denied on May 29, 2001. Petitioner filed a motion seeking leave to appeal pursuant to New York Criminal Procedure Law § 460.15 on June 14, 2001. This motion was also denied, on August 2, 2001. Then, on August 15, 2001 — 13 days after the state court remedies were exhausted — the instant petition was filed with this Court's Pro Se office. This matter was reassigned to this Court on November 29, 2001.
This petition was received by this Court's Pro Se office on August 20, but Mr. DeVino's signature on the petition was dated August 15. See Noble, 246 F.3d at 97-98.
DISCUSSION
Under Title I of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a prisoner in state custody has one year after the date his conviction became final in which to file a habeas petition. 28 U.S.C. § 2244(d)(1). DeVino's first petition, filed on September 5, 2000, was timely, since the time during which petitioner's coram nobis petition was pending must be subtracted from the 544 days that had elapsed since his conviction became final. 28 U.S.C. § 2244(d)(2);see also Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001);Hizbullahankhamon v. Walker, 255 F.3d 65, 69 (2d Cir. 2001) Subtracting the 190 days during which petitioner's coram nobis petition was pending in state court, the petition was filed 354 days after the conviction became final. Thus, when DeVino first filed his federal petition, approximately eleven days of the one year limitations period remained.
While this petition was improperly directed to the Eastern District of New York and was not received by this District until October 2, it is appropriate to use the September 5 date as the filing date because that date would have been preserved had the Eastern District transferred the case to this District rather than returning it to DeVino with instructions to file it in this Court.
Whenever a civil action is filed in a court . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed . . ., and the action . . . shall proceed as if it had been filed in . . . the court to which it is transferred on the date upon which it was actually filed in . . . the court from which it is transferred.28 U.S.C. § 1631; see Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996) (applying Section 1631 and noting that transfer is the proper procedure where a successive habeas petition is improperly filed in District Court); see, e.g., Hilliard v. Scully, 667 F. Supp. 96, 98 (S.D.N.Y. 1987) (deeming plaintiff's notice of appeal to have been filed on the date plaintiff previously attempted to file such notice using the wrong size paper). See also, e.g., Phoung v. McElroy, No. 99 Civ. 11611 (DLC), 2000 WL 1182795, at *1 (S.D.N.Y. Aug. 18, 2000) (ordering transfer of habeas petition filed in wrong jurisdiction); Akhta v. Reno, No. 00 Civ. 0566 (DLC) (AJP), 2000 WL 280027, at *1 (S.D.N.Y. March 15, 2000) (same).
At the time that DeVino filed his initial petition, the Second Circuit had interpreted 28 U.S.C. § 2244(d)(2)'s "other collateral review" language to include federal habeas petitions, such that the period during which a habeas petition was filed in federal court was tolled. Walker v. Artuz, 208 F.3d 357, 360 (2d Cir. 2000). Excluding the period during which DeVino's first petition was pending, DeVino's current petition was filed 35 days beyond the one year permitted by statute. Because the Supreme Court's decision in Duncan v. Walker, 533 U.S. 167(2001), overruled Walker, and held that the limitations period is not tolled during the pendency of a federal habeas petition, the 186 days during which the first federal petition was pending must be included in the calculation, and the instant petition is 221 days late. The Supreme Court's decision in Duncan post-dated the petitioner's decision to withdraw his timely petition voluntarily, and DeVino had not been advised of this risk when he requested the dismissal of the original petition.
There were 148 days between the dismissal of DeVino's first petition on March 20, 2001, and the filing of the instant petition on August 15, 2001. Of those 148 days, eleven days of the limitations period remained, and 102 days during the pendency of state collateral review must be tolled.
Since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," courts may equitably toll the period. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) Equitable tolling of the one-year limitations period for Section 2254 petitions is available "when `extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren, 219 F.3d at 113 (quoting Smith, 208 F.3d at 17). The factors that can give rise to equitable tolling are the same factors that establish "cause" for failure to raise a claim on direct appeal. Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000) (noting factors such as official interference or the unavailability of a factual or legal basis for a claim). In order to show that extraordinary circumstances prevented him from filing his petition on time, a petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll."Warren, 219 F.3d at 113 (citation omitted)
In addition to the equitable argument that the 186 days during which his first federal petition was pending should be tolled, see Jimenez v. Walker, 166 F. Supp.2d 765, 772 (E.D.N Y 2001), petitioner has described one other circumstance that justifies tolling. In a letter to the Court dated December 26, 1999, DeVino explained that he had been delayed in filing his petition for a writ of error coram nobis because his correctional facility was locked down from November 10, 1999, until on or about the date of the letter. The fact that the correctional facility was locked down for approximately 46 days can fairly be construed as a complaint that DeVino was deprived of access to legal materials. See Hizbullahankhamon, 255 F.3d at 75; Valverde, 244 F.3d at 133. InValverde, the court noted that a petitioner "should not be faulted . . . for failing to file early or to take other extraordinary precautions early in the limitations period." Id. at 136. Thus, the fact that DeVino did not file his coram nobis petition between March and November of 1999 does not stand in the way of a claim that the lockdown prevented an earlier filing.
A second explanation for the delay in filing the writ of error coram nobis is less successful. The petitioner has explained that he did legal research in connection with the coram nobis petition from March until November 1999. The need to conduct legal research is not the type of intervention or denial of access that would constitute an "extraordinary circumstance" warranting equitable tolling. See, e.g., Smaldone, 273 F.3d at 138-39 (equitable tolling not applicable for misunderstanding of law). If the Court were to exclude the time when the correctional facility was locked down, the instant petition would have been timely under Walker, but is nonetheless 175 days late under current law.
Since the Supreme Court's decision in Duncan, the Second Circuit has held that when a district court confronts a mixed petition containing both exhausted and unexhausted claims, the court has two options: (1) to dismiss the petition in its entirety (as was done in this case), or (2) to dismiss only the unexhausted claims and stay the balance of the petition. Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir. 2001). In Zarvela, the Second Circuit observed that a stay should have been entered in that case in order to avoid untimeliness. Id. The Court of Appeals thus treated Zarvela's petition as if it had been stayed, and because Zarvela had gone promptly to state court and returned to federal court promptly, remanded the action for further consideration. Had the district court stayed DeVino's initial petition rather than voluntarily dismissing it in March of 2001, his claims for habeas relief would be timely and capable of review now. DeVino acted essentially within the time constraints outlined in Zarvela. His collateral attack in state court was filed no later than 33 days after the dismissal of the federal petition, and this petition was filed less than a month after the collateral attack was denied.
The date DeVino placed his "440" motions in the prison mail system has not been provided to the Court, but it may have been within 30 days of the dismissal of his original federal habeas petition.
The Second Circuit has not yet addressed the question of whetherZarvela's holding applies retroactively. Smaldone, 273 F.3d at 139. Consequently, it is appropriate that service of DeVino's petition be made on the State so that the State may address whether Zarvela should apply retroactively. The Court will appoint counsel for the petitioner for this purpose.
CONCLUSION
For the reasons stated above, it is hereby
ORDERED that counsel be appointed to the petitioner so that he may adequately address the issue of whether Zarvela should apply retroactively.
IT IS FURTHER ORDERED that the Clerk of Court shall serve the Attorney General of the State of New York and the District Attorney of New York County with a copy of DeVino's petition and a copy of this Opinion and Order.
IT IS FURTHER ORDERED that the respondent shall have sixty (60) days from the date of service of the petition and this Opinion and Order to file a response addressing whether the holding of Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), should apply retroactively.
IT IS FURTHER ORDERED that the petitioner shall have thirty (30) days from the date on which he is served with respondent's response to file a reply.
SO ORDERED: