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rejecting petitioner's argument that he recently learned that "his trial attorney had a conflict of interest due to his membership on a city council in the county in which petitioner was tried" because "evidence of the alleged conflict of interest had clearly been in existence and could have been discovered by petitioner" earlier
Summary of this case from Friedman v. RehalOpinion
No. 03-CV-0923S.
March 30, 2005
DECISION AND ORDER
By Decision and Order dated July 22, 2004 ("July 22 Decision"), this Court dismissed as untimely John H. Martino's petition for habeas corpus. (Docket No, 8); see Martino v. Berbary, 2004 U.S. Dist. LEXIS 14827. On August 22, 2004, Martino filed a motion for "Rehearing, Retolling and Reconsideration," which the Court construes liberally as a motion for reconsideration under Rule 60(b) of the Federal Rules of Civil Procedure. (Docket No. 10). Petitioner subsequently filed a motion to amend his petition. (Docket No. 11). For the reasons stated below, petitioner's motions are denied.
Reconsideration of habeas corpus petitions is appropriate under either Rule 59(e) or Rule 60(b). See Morke v. Garraghty, 2000 U.S. App. LEXIS 17491 (4th Cir. 2000); United States v. Clark, 984 F.2d 31, 32 (2d Cir. 1993). A motion for reconsideration of a habeas petition that is not tim ely under Rule 59(e) will be considered as a Rule 60(b) motion. Centanni v. Snyder, 96 F. Supp. 2d 761, 762 (N.D. Ill. 2000); Velasquez v. United States, 1998 U.S. Dist. LEXIS 12220, at *4, n. 1 (S.D.N.Y. 1998). Petitioner's motion was filed more than ten days after judgm ent was entered on July 23, 2004, and was, therefore, untim ely under Rule 59(e). Thus, the Court has construed his motion as one brought under Rule 60(b). Id.
BACKGROUND
In 1997, Martino was convicted in New York State Supreme Court of criminal sale of a controlled substance. Petitioner unsuccessfully appealed his conviction to the Appellate Division, Fourth Department. People v. Martino, 244 A.D.2d 875 (4th Dept. 1997). Leave to appeal to the New York Court of Appeals was denied on December 31, 1998, People v. Martino, 92 N.Y.2d 1035, and the Court of Appeals denied Petitioner's motion for reconsideration on February 23, 1999, People v. Martino, 93 N.Y.2d 855. Petitioner did not apply to the United States Supreme Court for a writ of certiorari, thus, his conviction became final on May 24, 1999, the day on which his time to petition for certiorari expired. Walker v. Artuz, 208 F.3d 357 (2d Cir. 2000) (holding that a petitioner's conviction became final "when time expired to seek direct review by writ of certiorari to the United States Supreme Court.").
In addition to the direct appeal of his conviction, Petitioner filed several applications for post-conviction relief in State court. In its July 22 Decision, the Court determined that the Petitioner's collateral attacks on his conviction served to toll the one-year statute of limitations applicable to federal habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). The Court nevertheless concluded: that the petition had not been timely filed; that proceedings he initiated under Article 78 of the New York Civil Practice Laws and Rules, to obtain material related to his conviction, did not serve to further toll the one-year period; and that Petitioner had not identified any "extraordinary circumstance" that would warrant equitable tolling. The Court also rejected petitioner's argument that his Petition should be considered timely under 28 U.S.C. § 2244(d)(1)(D) based upon his claim of "newly discovered evidence." Petitioner subsequently filed the instant motion for reconsideration, to which he has appended documents he failed to previously produce in response to this Court's Order of February 13, 2004. That Order had directed that he complete a § 2254 Timeliness Response Form and provide the Court with any information relevant to the statute of limitations issue. (Docket No. 6).
DISCUSSION
In his motion to reconsider, petitioner asserts that the Court should "retoll" the limitations period applicable to his habeas petition to take account of a state habeas corpus petition he filed in 2001, and three Article 78 proceedings related to his conviction that he commenced under New York State law. Petitioner further argues that the Court should equitably extend the applicable limitations period due to "extraordinary circumstances." The Court will consider each of petitioner's arguments separately.
A. New York State Habeas Corpus Petition
Attached to petitioner's motion to reconsider are papers pertaining to a petition for habeas corpus that he filed in New York State Supreme Court (Wyoming County) on May 4, 2001. The court denied by the petition in an order entered on May 29, 2001.
Petitioner asserts in his motion papers that he filed his application for state habeas corpus relief "on or about March 2001." However, the purported copy of his state habeas corpus motion attached to the instant motion is dated May 4, 2001, and the State Supreme Court Order denying his application for habeas corpus likewise indicates that his petition was dated May 4, 2001.
The AEDPA establishes a one-year statute of limitations for prisoners in state custody who wish to petition for habeas corpus relief. 28 U.S.C. § 2244(d)(1). The limitations period is tolled, however, for "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. . . ." 28 U.S.C. § 2244(d)(2) (emphasis added).
Accordingly, two inquiries must be made to determine whether Petitioner's State habeas corpus petition tolled the statute of limitations: (1) was Petitioner's State habeas petition "properly filed" within the meaning of the AEDPA?; and (2) if the habeas petition was properly filed, is a New York State habeas corpus petition "an application for state post-conviction or other collateral review"? See Lebron v. Sanders, 2004 U.S. Dist. LEXIS 11819, at *5 (S.D.N.Y. 2004).
As noted in Lebron, there is a split within the district courts in the Second Circuit on the question of whether New York State habeas corpus proceedings toll the AEDPA's statute of limitations. Compare Russell v. Artuz, 2001 U.S. Dist. LEXIS 11583 at *8-9 (S.D.N.Y. 2001) and Forman v. Artuz, 211 F. Supp. 2d 415, 420-21 (S.D.N.Y. 2000) (holding New York habeas corpus petition does not toll the AEDPA limitations period) with Lebron, 2004 U.S. Dist. LEXIS 11819, at *14; Morales v. Sabourin, 2002 U.S. Dist. LEXIS 7538, at *26-27 (S.D.N.Y. 2002); McMoore v. Miller, 2002 U.S. Dist. LEXIS 8224, at *3 (N.D.N.Y. 2002); Fernandez v. Artuz, 175 F. Supp. 2d 682 (S.D.N.Y. 2001) (holding New York habeas petition does toll the AEDPA limitations period). The Court in the instant matter need not decide on which side of the divide to fall, however, for it is clear that Petitioner's application for state habeas relief was not properly filed, and, thus, did not operate to toll the statute of limitations applicable to his federal habeas corpus petition.
In Artuz v. Bennett, 531 U.S. 4 (2000), the Supreme Court clarified the meaning of "properly filed" under 28 U.S.C. § 2244(d)(2) as follows:
An application is " properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . But in common usage, the question whether an application has been "properly filed" is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.Artuz, 531 U.S. at 8-9 (footnotes omitted; emphasis in original).
Martino's petition for State habeas corpus relief was denied by order of the State Supreme Court dated May 21, 2001 (Index No. 19,225). The court's order gave three reasons for its decision to deny the petition, the first of which was "that the petition is defective on its face for failing to comply with CPLR 7002(c)(1)." (emphasis added). The cases cited by the court in support its determination, that Martino's petition was facially defective, involved the dismissal of State habeas corpus petitions that did not comply with the procedural requirements of the New York habeas corpus statute, N.Y.C.P.L.R. § 7001 et seq. Order of State Supreme Court, May 21, 2001 (citing People ex rel Medina v. Kelly, 265 A.D.2d 779 (3rd Dept. 1999) (habeas petition, which did not attach mandate and failed to allege how detention was illegal, dismissed for failing to comply with procedural requirements of C.P.L.R. § 7002 (c)(1) and (4)) and Tullis v. Kelly, 154 A.D.2d 926 (4th Dept. 1989) (habeas petition dismissed for "fail[ing] to comply with the procedural requirements of CPLR 7002 (subd [c])."))
Petitioner's application for State habeas corpus relief having been determined by the New York Supreme Court to be facially defective for failing to comply with the procedural requirements of N.Y.C.P.L.R. 7002(c), it is clear to the Court that his petition was not "in compliance with the applicable laws and rules governing [State collateral] filings." Artuz, 531 U.S. at 8. The Court thus concludes that Petitioner's State habeas corpus petition was not "properly filed" and, therefore, did not operate to toll the statute of limitations under the AEDPA. B. Article 78 Proceedings
In his Petition, Martino asserted that the several Article 78 proceedings he had commenced in New York State courts, to obtain material to assist him in challenging his conviction, should be counted as further tolling the limitations period pursuant to 28 U.S.C. § 2244(d)(2). The Court determined in its July 22 decision that petitioner's Article 78 applications did not serve to toll the limitations period under Hodge v. Greiner, 259 F.3d 103, 107 (2d Cir. 2001), in which the Second Circuit held that Article 78 proceedings to obtain material relevant to a petitioner's motions for collateral relief would not be considered "applications for State post-conviction or other collateral review" of a claim under 28 U.S.C. § 2244(d)(2) and, thus, would not serve to toll the statute of limitations applicable to federal habeas corpus petitions. The Court in Hodge noted that if courts were to count the time expended in pursuing Article 78 proceedings seeking information to bolster an inmate's challenge to his conviction as tolling the AEDPA's limitations period, "prisoners could substantially extend the time for filing federal habeas petitions by pursuing in state courts a variety of applications that do not challenge the validity of their convictions." Hodge, 269 F.3d at 107.
In his motion for reconsideration, petitioner now asserts that this Court erred in its application of the rule of Hodge to his Article 78 proceedings. Petitioner points to the Second Circuit's suggestion in Hodge that on different facts, "an Article 78 proceeding might be deemed the functional equivalent of an `application for State post-conviction or other collateral review' within the meaning of subsection 2244(d)(2)." 269 F.3d at 107.
Petitioner does not explain precisely why any of the three Article 78 applications attached to his motion for reconsideration should be "deemed the functional equivalent" of an application for state post-conviction review; indeed his statement that "all three [Article 78 applications] had to do with preparation to file collateral attacks on Petitioner's conviction and sentence . . .," would indicate that none of his three Article 78 proceedings should be counted as tolling the limitations period under the general rule of Hodge. The Court has nevertheless complied with petitioner's request that it review each of the three Article 78 applications filed by him to determine whether any of them should be construed as a collateral attack on his conviction, thereby tolling the limitations period applicable to his federal habeas corpus petition.
Petitioner did not include the papers pertaining to his Article 78 applications am ong the docum ents that he attached to the response (Docket No. 7) that he filed to the Court's Order of January 13, 2004 directing him to show why his petition was not properly barred for lack of tim eliness under 28 U.S.C. § 2244(d)(1).
The Court's review reveals that the two Article 78 petitions filed by Martino in the Supreme Court (Ontario County) in 1998 and 2000 were simply brought to challenge the denial of his State Freedom of Information Law requests for access to records that might assist him in challenging his conviction, and, therefore, do not constitute the "functional equivalent" of a collateral attack on his conviction under Hodge.
Petitioner's third Article 78 petition, filed in Supreme Court (Wyoming County) on July 3, 2001, and dismissed by that court on October 25, 2001, is more problematic inasmuch as it did not seek to obtain material that might be used by petitioner to challenge his conviction, but instead challenged the manner in which the New York State Department of Correctional Services had computed his term of imprisonment.
Petitioner asserts in his motion for reconsideration that he commenced an Article 78 proceeding in Wyoming County Supreme Court "on or about June, 2001, that was denied." (Docket No. 11, Affidavit in support of Motion, ¶ 16). Petitioner does not indicate the date on which this Article 78 application was denied, but elsewhere suggests that correct dates should be requested from Supreme Court. The County Clerk's Office of Wyoming County has informed the Court that petitioner's Article 78 petition (Index No. 19,244) was filed July 3, 2001, and dismissed by an Order entered on October 25, 2001.
Even so, it is not clear whether the Wyoming County Article 78 proceeding can properly be regarded as constituting a "functional equivalent" of a post-conviction or collateral attack upon his conviction within the meaning of Hodge. To begin with, New York State law appears to preclude the use of an Article 78 proceeding to collaterally challenge a criminal conviction. Section 7801 of the N.Y.C.P.L.R., entitled `Nature of Proceeding," provides, in relevant part, as follows:
Except where otherwise provided by law, a proceeding under [Article 78] shall not be used to challenge a determination:
* * *
2. Which was made in a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court.
Consistent with the language of the statute, New York courts have held that Article 78 proceedings may not be used to challenge criminal convictions. See 6 NY Jur., Article 78 and Related Proceedings, § 44 and cases therein cited. Illustrative in this regard is the decision of the Appellate Division, Fourth Department, in People ex rel. Hatzman v. Kuhlmann, 191 A.D.2d 976 (4th Dept.), appeal dismissed and lv. denied, 82 N.Y.2d 683 (1993). Kuhlmann concerned an inmate who had begun a habeas corpus proceeding to invalidate two criminal convictions, obtain credit against later sentences for time served pursuant to those earlier convictions, and compel recomputation of the maximum expiration date of his multiple sentences. The New York Supreme Court converted his application to one for Article 78 relief, and granted the petition in part. The Appellate Division reversed, noting that an Article 78 proceeding was not the proper vehicle through which a prisoner could seek to collaterally challenge a conviction:
Although an Article 78 proceeding would be appropriate to challenge a computation of relator's conditional release or maximum expiration date, relator is not entitled to relief where he does not challenge any determination of respondent, but rather challenges the validity of the criminal convictions underlying his commitment. "Traditional orderly procedure" requires that such contentions be raised either on direct appeal or in collateral criminal proceedings. . . .
Further, relator's challenges to his . . . convictions could have been raised on direct appeal from those convictions, or have been raised and rejected in numerous collateral criminal proceedings.191 A.D.2d at 923 (emphasis added; citations omitted).
Even assuming, notwithstanding the state law discussed above, that petitioner could appropriately have sought to collaterally challenge his conviction in an Article 78 proceeding, it is certainly questionable whether the petition that he filed in Supreme Court (Wyoming County) can be regarded as constituting such a challenge. The petition named the New York State Department of Correctional Services ("DOCS") as respondent, and stated that it was challenging the "legality of DOCS use of Penal Law (PL), § 70.30 to calculate an illegal sentence passed upon by the trial court. . . ." While the petition certainly did contend — repeating the argument Martino had unsuccessfully made in challenging his conviction on appeal — that the sentencing court had erred in determining his sentence, the petition's request for relief asked that the court order DOCS to correct its computation of his sentence. The petition did not seek to have the court set aside Martino's conviction. The short decision of the Supreme Court dismissing the Article 78 petition simply determined that the "respondent [ i.e. DOCS] has properly calculated the sentences in accordance with the judgment of conviction. Petitioner may not seek re-sentencing in this Court." Wyoming County Supreme Court Order dated Oct. 25, 2001.
The case caption was subsequently changed to identify "Glenn Goord, Commissioner, Department of Correctional Services" as the respondent.
This Court need not resolve this issue, however, for even assuming, as the Court will, that Martino's Article 78 proceeding is the "functional equivalent" of an application for post-conviction or collateral review, the amount of additional time that was tolled by that proceeding is not enough to make his federal habeas petition timely.
In its July 22 Decision, after aggregating the periods during which the statute of limitations applicable to federal habeas petitions was tolled by petitioner's collateral attacks on his conviction in state court, the Court determined that petitioner had accrued the benefit of 775 days of tolling; therefore, to be timely, his habeas petition would have had to have been filed by July 8, 2002 ( i.e. 775 days from May 24, 2000). However, inasmuch as Martino did not file his habeas petition until December 3, 2003, the Court concluded that it was untimely.
If the Court were to treat the Article 78 proceeding filed by petitioner in Wyoming County Supreme Court as an "application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2), the time during which that proceeding was pending would further toll the statute of limitations. Martino commenced the Article 78 proceeding in Wyoming County Supreme Court on July 3, 2001. The petition was dismissed by order filed on October 29, 2001.
Petitioner's motion papers do not indicate the relevant dates for the Wyoming County Supreme Court Article 78 proceeding. The dates set forth in the text of the instant decision were provided by the Wyoming County Clerk's office, which also provided the Court with copies of the Order dismissing the Article 78 petition, and the notice of appeal thereafter filed by the petitioner.
Martino's petition does not indicate that he appealed the order dismissing his petition, but the Court has ascertained that he filed a Notice of Appeal from that order to the Appellate Division, Fourth Judicial Department, on November 28, 2001. Under the Rules of Practice of the Appellate Division, Fourth Department, petitioner had 60 days to perfect his appeal. 22 N.Y.C.R.R. § 1000.2(b). He failed to do so, and his appeal was subject to dismissal thereafter. Id. The Fourth Department's Rules of Practice further provide that a civil appeal "shall be deemed abandoned and dismissed, without the necessity of an order or motion, when an appellant has failed to perfect an appeal within nine months of service of the notice of appeal." Under this Rule, petitioner's appeal of the order of Wyoming County Supreme Court would have been deemed to have been dismissed on August 28, 2002. 22 N.Y.C.R.R. § 1000.12(b).
Inform ation concerning petitioner's appeal of the dismissal of the Article 78 proceeding was obtained from the Clerk's Office of the Appellate Division, Fourth Judicial Department.
While there is some question in the Court's mind as to whether petitioner's Article 78 proceeding should be regarded as having been "pending" for purposes of § 2244(d)(2) only until the expiration of the 60 day period to perfect set forth in § 1000.2(b) of the Fourth Department rules, the Court will consider Martino's Article 78 proceeding to have been pending from the date it was filed (July 3, 2001), until the date that petitioner's appeal of the order denying his application would have been deemed to have been dismissed under Fourth Department Rule 1000.12 (August 28, 2002), for a total of 421 days.
This does not mean, however, that petitioner is entitled to receive the benefit of another 421 days of tolling, for a portion of the time that his Article 78 proceeding was "pending" overlaps with a period during which petitioner has already received tolling credit for another post-conviction application. In its July 22 Decision, the Court noted that on April 1, 2002, the petitioner had filed a motion under N.Y. Crim. Proc. Law § 440 to vacate his conviction. The Court determined that tolling on that motion continued for 578 days until the motion was finally denied on October 30, 2003. 2004 U.S. Dist. LEXIS at *8. The Court therefore finds that the additional time that could be considered tolled by petitioner's Article 78 proceeding is 272 days, i.e. from the date the Article 78 petition was filed (July 3, 2001) until March 31, 2002 (the day before the tolling period commenced on petitioner's § 440 motion).
Martino filed his federal habeas petition on December 3, 2003, or 1,288 days after the statute of limitations under the AEDPA expired on May 24, 2000. Aggregating the tolling periods provided by the filing of the collateral attacks upon his conviction enumerated in the Court's previous decision (775 days) and the Article 78 proceeding discussed herein (272 days), petitioner would accrued the benefit of 1,047 days of tolling. Therefore, to be timely, Martino would have had to have filed his habeas petition by April 7, 2003 (1,047 days from May 24, 2000). But the petition was not filed until December 3, 2003, and was thus filed nearly six months after the tolling that would be allowed if the Court were to find that the Article 78 petition discussed above did toll the statute.
C. Equitable Tolling
In its previous decision, the Court determined that petitioner had not identified any "extraordinary circumstance" that would have provided the Court with a basis to equitably extend the limitations period under the AEDPA. Petitioner now asks the Court to reexamine its conclusion in that regard. To support his contention that there was an extraordinary circumstance that made it impossible for him to timely file a habeas petition, petitioner attempts to repackage an argument he previously raised to support his contention that his petition should be regarded as timely under the so-called "newly discovered evidence" provision of the AEDPA. 28 U.S.C. § 2244(d)(1)(D). As explained in the Court's July 22 Decision, petitioner claimed that after his conviction, he discovered that his trial attorney had a conflict of interest due to his membership on a city council in the county in which petitioner was tried. Petitioner stated that this discovery was the basis for a motion to vacate that he had filed in State court in 2002. In its July 22 Decision, the Court considered whether this allegedly "newly discovered evidence" would render the Petition timely under § 2244(d)(1)(D). The Court ruled that it would not, finding that evidence of the alleged conflict of interest had clearly been in existence and could have been discovered by petitioner prior to the date that his conviction became final.
This argument was made by petitioner in the "Response As To why Petition Should Not Be Barred by 28 U.S.C. § 2244(d)(1)." (Docket No. 7).
Petitioner now contends that his lack of knowledge at the time of his trial concerning his counsel's alleged conflict of interest constitutes an "extraordinary circumstance" that would warrant applying the doctrine of equitable tolling. The Court disagrees. Equitable relief such as tolling may be awarded only upon consideration of all the facts and circumstances. Vitarroz v. Borden, Inc., 644 F.2d 960, 965 (2d Cir. 1981).
To equitably toll the one-year limitations period, a petitioner must show that extraordinary circumstances prevented him from filing his petition on time, and he must have acted with reasonable diligence throughout the period he seeks to toll. To show that extraordinary circumstances prevented him from filing his petition on time, petitioner must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances. Hence, if the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation is broken, and the extraordinary circumstances did not prevent timely filing.Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (internal citations and quotation marks omitted).
The Court does not agree that petitioner's attorney's alleged conflict off interest rises to the level of an "extraordinary circumstance." Moreover, even if the Court were to conclude that extraordinary circumstances were present, that alone would not justify the application of equitable tolling. Petitioner would still have to show that he acted with reasonable diligence, but that the extraordinary circumstances caused his petition to be untimely. Hizbullahankhamon, 255 F3d at 75. As noted above, petitioner has previously indicated that he became aware of his attorney's conflict of interest before filing a motion to vacate his conviction in State court in April, 2002. The motion was based upon that alleged conflict of interest. But after becoming aware of the alleged "extraordinary circumstances," petitioner waited until December, 2003 to file his federal habeas corpus petition. The Court therefore finds that petitioner did not act with "reasonable diligence" and, thus, has not presented a basis to equitably extend the limitations period.
Petitioner's argument that the Court should equitably extend the limitations period is also based on his claims that two other attorneys who represented him in connection with the several applications for postconviction relief that he brought in New York courts were dilatory, not sufficiently responsive, etc. Nothing in petitioner's allegations in this regard would support a finding that petitioner was prevented by "extraordinary circumstances" from timely filing his federal habeas petition.
CONCLUSION
The Court finds no merit in petitioner's other arguments in support of his motion for reconsideration, and, for the reasons stated above, the motion is denied. Petitioner's motion to amend his Petition is dismissed as moot. In addition, because the issues raised here are not the type of issues that a court could resolve in a different manner, and because these issues are not debatable among jurists of reason, the Court concludes that petitioner has failed to make a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), and accordingly the Court denies a certificate of appealability.
The Court also hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
ORDER
It is hereby
ORDERED, that the petition is dismissed; and it is further
ORDERED, that a certificate of appealability is denied; and it is further
ORDERED, that leave to appeal as a poor person is denied.
SO ORDERED.