Opinion
04 Civ. 9961 (BSJ) (JCF).
April 25, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE BARBARA S. JONES, U.S.D.J.:
Chen Ren Jie brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for kidnaping and larceny following a jury trial in New York State Supreme Court, New York County. Mr. Chen argues that: (1) a statement that he made to the police at the time of his arrest should have been suppressed; (2) the prosecution improperly introduced evidence of uncharged crimes; (3) the prosecutor engaged in misconduct by making improper statements to the jury; and (4) his sentence constitutes cruel and unusual punishment. The respondent has now moved to dismiss the petition as untimely, and for the reasons discussed below, I recommend that the motion be granted.
Background
Following a trial in which he was found guilty of four counts of Kidnaping in the First Degree and two counts of Grand Larceny in the Second Degree, a judgment of conviction was entered against Mr. Chen on September 1, 1998, and he was sentenced to two consecutive terms of twenty-five years to life, to run concurrently with two terms of twenty-five years to life and two terms of five to fifteen years. (Undated Declaration of Luke Martland ("Martland Decl."), attached to Notice of Motion, ¶ 3). Mr. Chen appealed to the Appellate Division, First Department, which affirmed his conviction on February 6, 2001. People v. Chen Ren Jie, 280 A.D.2d 301, 720 N.Y.S.2d 135 (1st Dep't 2001). Leave to appeal to the New York Court of Appeals was denied on April 6, 2001. People v. Chen Ren Jie, 96 N.Y.2d 798, 726 N.Y.S.2d 376 (2001). Mr. Chen then filed the instant petition, which is dated September 8, 2004, and which was received by thePro Se Office of the Court on September 16, 2004. (Petition, attached as Exh. A to Martland Decl.).
The respondent moves to dismiss the petition on the ground that it was filed well beyond the one-year statute of limitations prescribed by the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"), 28 U.S.C. § 2244(d)(1)(A). Mr. Chen responds by citing a number of circumstances that he contends should excuse any late filing. In his petition, he contends that he only recently came to understand that he was required to file his petition within one year of the date that his conviction became final. Until then, he was "under the misbelief that he had no further legal recourse[.]" (Petition, ¶ 14). Furthermore, as a native speaker of Fu Chow, a Chinese dialect, the petitioner can neither read nor speak English. And, according to Mr. Chen, his appellate attorney did not "reasonably, or in a timely manner" notify him that the New York Court of Appeals had rejected his appeal. (Petition, ¶ 14). Finally, he argues that his ability to overcome these handicaps was impeded by the fact that the prison in which he is an inmate has no Chinese corrections officers or law library employees. (Petition, ¶ 14). In his papers answering the respondent's motion, Mr. Chen elaborates on his argument concerning the notice received from his appellate attorney. While not denying that his attorney provided notification of the disposition of his appeals, the petitioner contends that this notice was not adequate, apparently because it was written in English rather than Fu Chow. (Traverse at 2-5).
Discussion
There is no doubt that Mr. Chen's petition is untimely on its face. A criminal defendant's conviction becomes final for purposes of the AEDPA's limitations period when his time to seek a writ of certiorari to the United States Supreme Court has expired. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Mr. Chen's conviction thus became final on July 5, 2001, ninety days after the New York Court of Appeals denied leave to appeal. The one-year limitations period established by 28 U.S.C. § 2244(d)(1)(A) therefore expired on July 5, 2002. Yet, Mr. Chen did not file his petition until more than two years thereafter.
Nevertheless, because the AEDPA's time limit is a statute of limitations and not a jurisdictional bar, it is subject to equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). The limitations period will be tolled, however, only in "rare and exceptional circumstances." Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (quoting Smith, 208 F.3d at 17). In addition, 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" him from filing on time.Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (citation omitted); see also Valverde, 224 F.3d at 134. Mr. Chen has met neither of these requirements.
First, it is well-established that the inability to speak English is not an exceptional circumstance that warrants equitable tolling. See Huang v. United States, Nos. 03 Civ. 3755, 91 Cr. 827, 2003 WL 22272584, at *2-3 (S.D.N.Y. Oct. 2, 2003); German v. United States, 209 F. Supp. 2d 288, 293 (S.D.N.Y. 2002); Yoke Yew Tan v. Bennett, No. 00 Civ. 6413, 2001 WL 823869, at *2 (S.D.N.Y. July 20, 2001). Nor is the fact that an inmate may be unable to access legal resources or obtain legal assistance in his native language. See German, 209 F. Supp. 2d at 293 (lack of law library materials in Spanish); Zi Da Zhang v. United States, Nos. 96 Cr. 44, 01 Civ. 2591, 2002 WL 392295, at *3 (S.D.N.Y. March 13, 2002) (lack of legal assistance program and law librarians who speak Chinese). Nor is a petitioner's ignorance of the law. See Huang, 2003 WL 22272584, at *2-3; Fennell v. Artuz, 14 F. Supp. 2d 374, 377 (S.D.N.Y. 1997).
Furthermore, Mr. Chen has not demonstrated the reasonable diligence necessary to qualify for equitable tolling. He waited more than two years beyond the expiration of the limitations period to file his petition, and his suggestion that this was the consequence of a failure on the part of his appellate attorney to provide adequate notice of the outcome of his state appeals is unavailing. Mr. Chen does not argue that his attorney failed to notify him, at least in English, of the progress of his appeals. The petitioner's failure to take any steps to have such notices translated and to ascertain their importance precludes equitable tolling.
Conclusion
For the reasons set forth above, I recommend that the respondent's motion be granted and the petition be dismissed. 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 Barbara S. Jones, Room 2103, 40 Foley Square, 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.