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concluding that New York Court of Appeals would not apply the prisoner mailbox rule, but rather would rule that papers are considered filed only upon receipt by the court
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00 Civ. 7601 (KMW) (AJP)
May 15, 2001
REPORT AND RECOMMENDATION
To the Honorable Kimba M. Wood, United States District Judge:
Petitioner Pablo Fernandez, pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his June 21, 1996 conviction after a jury trial in Supreme Court, New York County, of second degree murder and sentence of twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-6.) See also People v. Fernandez, 249 A.D.2d 3, 3, 670 N.Y.S.2d 840, 842 (1st Dep't), appeal denied, 92 N.Y.2d 897, 680 N.Y.S.2d 60 (1998).
Fernandez's petition raises seven habeas grounds: (1) the trial court's reasonable doubt jury charge shifted the burden of proof (Pet. ¶ 12, Point I); (2) a Brady violation (id. Point II); (3) prosecutorial misconduct (id. Point III); (4) prejudicial comments by the trial judge (id. Point IV); (5) admission of hearsay (id. Point V); (6) denial of the right to present a defense (id. Point VI); and (7) ineffective assistance of appellate counsel in failing to include issues in the application for leave to appeal to the New York Court of Appeals (id. Point VII).
The State has moved to dismiss the petition as barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (See Dkt. Nos. 11, 13, 17.) For the reasons set forth below, the Court agrees that the petition is time barred and should be dismissed.
PROCEDURAL BACKGROUND
State Court Proceedings
On June 21, 1996, Fernandez was convicted of second degree murder and sentenced to twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) The First Department affirmed Fernandez's conviction on April 2, 1998. People v. Fernandez, 249 A.D.2d 3, 670 N.Y.S.2d 840 (1st Dep't 1998). The New York Court of Appeals denied leave to appeal on August 18, 1998. People v. Fernandez, 92 N.Y.2d 897, 680 N.Y.S.2d 60 (1998).
Fernandez filed a writ of error coram nobis in the First Department, which denied it on June 15, 2000. People v. Fernandez, 273 A.D.2d 950, 714 N.Y.S.2d 625 (1st Dep't 2000). (See also Dkt. No. 4: Fernandez 12/7/00 Aff. ¶¶ 1-4 Ex. A.) The date when Fernandez "filed" the coram nobis petition is critical to the AEDPA time bar issue before the Court. According to Fernandez, he gave his coram nobis papers, which are dated September 15, 1999, to prison officials for mailing on September 15, 1999. (See Fernandez 12/7/00 Aff. ¶ 3 ("I filed my coram nobis on September 15, 1999"); Dkt. No. 11: A.D.A. Nicole Beder 3/30/01 Aff. Ex. A: Fernandez Coram Nobis Aff. Br., sworn to 9/15/99; Dkt. No. 16: Fernandez 5/3/01 Letter to Court at 2 ("on September 15, 1999, I actually delivered my coram nobis papers to my custodians and that I requested that my papers be forwarded to both the Appellate Division and respondent via certified mail, return receipt requested").
According to the State, the coram nobis papers bear a Green Haven Correctional Facility postage meter stamp dated September 24, 1999 (Dkt. No. 13: Beder 4/13/01 Supp. Aff. ¶ 4 Ex. C), and were stamped received by the D.A.'s office and First Department on September 27, 1999. (Dkt. No. 11: Beder 3/30/01 Aff. ¶ 9; Dkt. No. 13: Beder 9/13/01 Supp. Aff. ¶¶ 3-5 Ex. A; Dkt. No. 15: Fernandez 4/24/01 Reply Aff. ¶¶ 6-7 Ex. 2.)
There is some dispute as to whether Fernandez's coram nobis papers were received on September 27 or 28, but that is immaterial to decision of the time bar issue.
Fernandez's Federal Habeas Petition and Federal Court Proceedings
Fernandez's federal habeas petition is dated August 14, 2000 and was received by the Court's pro se office on August 16, 2000. (Dkt. No. 2: Pet., 1st last pages.)
By Order dated October 10, 2000, Chief Judge Mukasey ordered Fernandez to show cause why the petition was not barred by the AEDPA's one year limitation period. (Dkt. No. 3:10/10/00 Order.) Fernandez responded on December 7, 2000, as follows:
2. As concluded by this Court, my judgment of conviction became final on November 18, 1998 at the conclusion of the ninety days during which I could have sought certiorari in the United States Supreme Court. Thus, November 18, 1999, was the last day for filing my habeas corpus petition.
3. However, the filing of my Writ of Errors Coram Nobis triggered the tolling provision. I filed my Coram Nobis on September 15, 1999, Sixty-five (65) days before the one-year statute of limitation period ran out, and it was denied on June 15, 2000.
4. . . . Since the one-year time limitation clock was reactivated the day after (June 15/2000) the Appellate Division denied the Coram Nobis, my last day for filing my habeas petition was moved to August 19, 2000 (a Saturday). Therefore, because I mailed my habeas petition on August 14, 2000, it was filed in accordance with the one-year statute of limitation period (please see this Court Clerk's Office letter, which I received on August 18/2000, acknowledging receipt of my habeas. . . .).
(Dkt. No. 4: Fernandez 12/7/00 Aff. ¶¶ 2-4, citations quotations omitted.)
The case was referred to me on January 16, 2001 (Dkt. No. 7); on January 23, 2001, I ordered the State to respond to Fernandez's petition (Dkt. No. 8); and on April 4, 2001, the State moved to dismiss the Petition on statute of limitations grounds (Dkt. No. 11).
ANALYSIS
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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;
. . . .
(2) The 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 shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
The AEDPA one-year limitations period started to run here on November 16, 1998, ninety days after the New York Court of Appeals denied Fernandez leave to appeal on August 18, 1998, when the time to file a petition for certiorari expired. Williams v. Artuz, 237 F.3d 147, 150-51 n. 1 (2d Cir. 2001); accord, e.g., Bonilla v. Ricks, 00 Civ. 79225, 2001 WL 253605 at *2 (S.D.N Y Mar. 14, 2001) (Peck, M.J.); Shaw v. Mazzuca, 00 Civ. 6941, 2001 WL 66404 at *2 (S.D.N.Y. Jan. 26, 2001) (Peck, M.J.); 28 U.S.C. § 2244(d)(1)(A). Both the State and Fernandez agree that the AEDPA's one year limitation period began to run after the expiration of the ninety day certiorari period, i.e., on November 16, 1998. (Dkt. No. 11: State 3/30/01 Br. at 5; Dkt. No. 4: Fernandez 12/7/00 Aff. ¶¶ 2-3.)
The Second Circuit has held that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 121 S.Ct. 104 (2000).
See also, e.g., Steadman v. Senkowski, No. 99-2449, 234 F.3d 1263 (table), 2000 WL 1591268 at *1 (2d Cir. Oct. 23, 2000) ("the tolling provision of 28 U.S.C. § 2244(d)(2) excludes time while a state relief application is pending but does not reset the date on which the limitations period begins"); Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *9 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Stokes v. Miller, 00 Civ. 0806, 2000 WL 640697 at *2 (S.D.N.Y. May 18, 2000) (Peck, M.J.), report rec. adopted by 2000 WL 1121364 (S.D.N.Y. July 21, 2000) (Berman, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *6 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Mojica v. David, 99 Civ. 1990, 2000 WL 631385 at *2 (S.D.N.Y. May 16, 2000) (Peck, M.J.), report rec. adopted by 2000 WL 991391 (S.D.N.Y. July 19, 2000) (Cote, D.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *3 (S.D.N.Y. Mar. 9, 2000) (Sprizzo, D.J. Peck, M.J.); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Lucidore v. New York State Div. of Parole, 99 Civ. 2936, 1999 WL 566362 at *4 (S.D.N.Y. Aug. 3, 1999) (Peck, M.J.), aff'd, 209 F.3d 107 (2d Cir.), cert. denied, 121 S.Ct. 175 (2000); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *3 (S.D.N.Y. July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. Apr. 29, 1999) (Peck, M.J.), report rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.).
"Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases). Fernandez concedes that his state collateral attack (i.e., his coram nobis petition) tolled but did not start anew the AEDPA limitations period. (Dkt. No. 4: Fernandez 12/7/00 Aff. ¶¶ 3-4, quoted on page 3 above.)
Accord, e.g., Smith v. McGinnis, 208 F.3d at 17; Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 2000 WL 1663437 at *9; Stokes v. Miller, 2000 WL 640697 at *2; Foreman v. Garvin, 2000 WL 631397 at *6; Mojica v. David, 2000 WL 631385 at *2; Lucidore v. New York State Div. of Parole, 99 Civ. 2936, 1999 WL 566362 at *4.
As noted above, Fernandez's conviction became final and the AEDPA limitations period started on November 16, 1998. The AEDPA limitations period ran until tolled by Fernandez's coram nobis petition. If the coram nobis petition was "filed" on September 15, 1999, then 303 days ran (and 62 days remained). If the coram nobis petition was not "filed" until September 27, 1999, then 315 days ran (and 50 days remained).
It is undisputed that the First Department denied Fernandez's coram nobis petition on June 15, 2000, restarting the AEDPA limitations clock, and Fernandez's habeas petition is dated August 14, 2000, a passage of an additional 60 days.
Thus, if Fernandez's coram nobis petition to the First Department is deemed filed on September 15, 1999, Fernandez's federal habeas petition is timely, but if his coram nobis petition is not deemed filed until September 27, 1999, then Fernandez's federal habeas petition is ten days untimely. Decision of this issue turns on whether the "prison mailbox rule" applies to Fernandez's coram nobis petition.
The federal "prisoner mailbox rule" has its genesis in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988), where the Supreme Court interpreted the Federal Rules of Appellate Procedure and held that notice of appeal was timely when the pro se prisoner delivered his papers to prison authorities for mailing to the federal court. 487 U.S. at 270, 108 S.Ct. at 2382. While speaking eloquently about how a pro se prisoner has no choice but to hand his appeal papers to prison authorities for forwarding to the Court, it is clear that the Supreme Court was construing federal statutes and rules and not announcing a rule of Constitutional dimension. See, e.g., Davies v. McCaughtry, No. 99-3460, 215 F.3d 1329 (table), 2000 WL 387147 at *1 (7th Cir. Apr. 14, 2000) (rejecting argument that Houston's mailbox rule rests on due process grounds and therefore must be followed by states), cert. denied, 121 S.Ct. 392 (2000); Jenkins v. Burtzloff, 69 F.3d 460, 461 (10th Cir. 1995) ("The rationale of Houston was not constitutional or equitable in nature; rather, it was based on an interpretation of the word 'filed' in the rule and statute governing the timeliness of notices of appeal."); Nigro v. Sullivan, 40 F.3d 990, 995 n. 1 (9th Cir. 1994) (although Houston "rests on policy arguments and some notion of fairness," it contains no explicit reference to due process and the Court "cannot in the name of sympathy rewrite a clear procedural rule").
The Supreme Court stated:
The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. . . . Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. Houston v. Lack, 487 U.S. at 270-71, 108 S.Ct. at 2382.
The Second Circuit has extended the Houston v. Lack prisoner mailbox rule to, inter alia, federal civil complaints and habeas corpus petitions in federal court. See, e.g., Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) ("We conclude that the district court properly extended the prison mailbox rule to petitions for writs of habeas corpus.") ( citing cases for other federal applications of the rule); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 n. 1 (2d Cir. 1999) (extends prison mailbox rule to Federal Tort Claim Act administrative proceeding, but notes that "Houston does not apply, of course, when there is a specific statutory regime to the contrary"); Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (extends Houston rule to prisoner § 1983 complaint in federal court under the Federal Rules of Civil Procedure).
See also, e.g., Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *7 (S.D.N.Y. Feb. 3, 2000) (applying Houston rule to federal habeas petition, citing cases); Rhodes v. Senkowski, 92 F. Supp.2d 160, 165 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.) (same).
The AEDPA's limitation period is tolled during the time in "which a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2). Whether a state collateral attack is "properly filed" is a question of state, not federal, law. See Artuz v. Bennett, 121 S.Ct. 361, 363-64 (2000) ("An application is 'filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is 'properly filed' when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings.") (citations omitted). Thus, the question is whether New York would apply the Houston v. Lack prisoner mailbox rule.
The First Department's rules state that a motion "shall be considered filed only upon receipt." 22 N.Y.C.R.R. § 600.2(a)(6). In the context of a similar rule under the CPLR for filing Article 78 papers, the New York Court of Appeals recently rejected the Houston v. Lack prisoner mailbox rule. Grant v. Senkowski, 95 N.Y.2d 605, 608-09, 721 N.Y.S.2d 597, 599 (2001). The New York Court of Appeals noted that the holding in Houston v. Lack "was based, in part, upon the [Supreme] Court's interpretation of the term 'filing' as used in the Federal Rules of Appellate Procedure" and held that the "Supreme Court's authority in interpreting its own rules exceeds [the New York Court of Appeals'] authority in interpreting the CPLR." Grant v. Senkowski, 95 N.Y.2d at 608, 721 N.Y.S.2d at 599. The New York Court of Appeals concluded:
We recognize the greater impediments pro se prisoners may face over most other litigants in filing their legal papers on time. But, absent any evidence that the Legislature intended to vary for their benefit the filing-by-receipt requirement established in CPLR 304, we cannot depart from the statutorily mandated filing requirements by incorporating a pro se prisoner mailbox exception.
Grant v. Senkowski, 95 N.Y.2d at 609, 721 N.Y.S.2d at 599.
It appears, therefore, that the New York Court of Appeals would not apply the prisoner mailbox rule to the filing of a coram nobis petition in the Appellate Division, but would strictly construe the rule that the papers are "considered filed only upon receipt" by the court.
Accordingly, Fernandez's coram nobis petition was not filed, under New York rules, until received by the First Department on September 27, 1999. Hence Fernandez's federal habeas petition is untimely. See, e.g., Adams v. LeMaster, 223 F.3d 1177, 1181 (10th Cir. 2000) ("the federal mailbox rule announced in Houston v. Lack does not apply to § 2244(d)(2) for purposes of determining when the tolling period for a properly-filed state petition begins. . . . [w]e too hold state law must determine when a state [collateral attack] is considered filed."), cert. denied, 121 S.Ct. 1198 (2001); Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) ("We decline to extend the mailbox rule to the determination of filing dates for state habeas applications."), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564 (2000); but see Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (applying Houston's mailbox rule to determine date on which state petition was filed for purposes of § 2244(d)(2) even though state had not applied the rule), pet. for cert. filed, No. 00-15, 69 USLW 3657 (Mar. 30, 2001). The result might seem harsh, but Congress gave prisoners one year to file a habeas petition, cognizant of the delays inherent in prison life. See, e.g., Brooks v. Olivarez, No. C 98-134, 1998 WL 474160 at *2 (N.D.Cal. Aug. 5, 1998) ("Congress gave prisoners one year to get to federal court after their convictions became final. . . . That one year gives the prisoner plenty of time to get to federal court and leaves room for the inevitable delays in mail, unpredictable lockdowns, as well as interruptions in research and writing time common in prison."). While prison authorities may have caused a nine day delay, the balance of time was attributable to Fernandez. There is always a risk in litigation, for pro se prisoners or even lawyers, that if one waits until the last minute, something might go wrong. The First Department's rules clearly hold that a motion is filed upon "receipt" by the Court. Accordingly, Fernandez's habeas petition is untimely.
CONCLUSION
For the reasons set forth above, Fernandez's federal habeas corpus petition should be dismissed as barred by the AEDPA's one year limitations period. Because neither the Second Circuit nor the New York Court of Appeals has addressed the applicability of the "prisoner mailbox rule" to the filing date of state collateral attacks on a conviction and the effect on the AEDPA's limitations period, I recommend that the Court issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1599 (2000) (certificate of appealability should issue where "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further.").
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).