Opinion
No. 03-CV-0923S.
July 22, 2004
DECISION AND ORDER
INTRODUCTION
Petitioner John H. Martino, acting pro se, seeks relief pursuant to 28 U.S.C. § 2254, alleging that his conviction in Ontario County Court, Ontario County, State of New York, was unconstitutionally obtained, as set forth more precisely in the petition. By Order filed January 13, 2004, petitioner was directed to file information regarding why the petition is not untimely under 28 U.S.C. § 2244(d)(1), which imposes a one-year statute of limitations on the filing of § 2254 habeas petitions. The limitations period is counted from —
(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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the [United States] Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or the "Act"), Pub.L. No. 104-132, 110 Stat. 1214, effective April 24, 1996.
DISCUSSION
On January 22, 2004, petitioner filed his response (Docket No. 7). The Court has examined the response and finds that the petition is barred by the limitation of time established by 28 U.S.C. § 2244.
A. Timeliness Under § 2244(d)(1)(A)
Petitioner's conviction was affirmed by the Appellate Division on November 19, 1997. 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 ( 92 N.Y.2d 1035), and petitioner's motion for reconsideration was denied by the Court of Appeals on February 23, 1999 ( 93 N.Y.2d 855). Petitioner's judgment thus became final and his time expired to seek direct review of his conviction on May 24, 1999, the day on which his time to petition for certiorari to the Supreme Court of the United States expired. Walker v. Artuz, 208 F.3d 357, 358 (2d Cir. 2000) (holding that petitioner's conviction became final "when his time expired to seek direct review by writ of certiorari to the United States Supreme Court"), rev'd on other grounds sub nom. Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120, 150 L.Ed.2d 251 (2001). Petitioner did not file this habeas corpus petition until December 3, 2003, over three and one-half years after his conviction became final, and thus on its face the petition was filed well beyond the one-year statute of limitations period established by the AEDPA. The one-year statute of limitations 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). Therefore, the timeliness of the instant petition depends on the extent to which the petitioner's post-conviction applications and motions in state court tolled the statute of limitations.
Petitioner's response and the papers appended thereto indicate that he filed four separate collateral attacks on his conviction, beginning on April 27, 1999 with an application for a writ of coram nobis, which was denied by the Appellate Division, Fourth Department on October 1, 1999. People v. Martino, 265 A.D.2d 945 (4th Dept. 1999). Petitioner filed a second application for coram nobis on May 3, 2000, which was denied by the Fourth Department on July 7, 2000 ( 274 A.D.2d 980); his application to appeal the Fourth Department's order was dismissed as not appealable by the Court of Appeals on August 15, 2000 ( 95 N.Y.2d 868). Petitioner's third collateral attack came in April, 2002, when he filed a motion pursuant to New York Criminal Procedure Law Article 440.10 to vacate his conviction. Petitioner's Article 440.10 motion was denied by the Ontario County Court in a decision dated July 8, 2002 and an amended decision dated May 28, 2003. Petitioner's application for leave to appeal the denial of his Article 440 motion was denied by the Fourth Department on July 23, 2003; petitioner's motion for reargument of his motion for leave to appeal was likewise denied by the Fourth Department on October 1, 2003. Petitioner filed a third application for coram nobis relief on January 9, 2003, which was denied by the Fourth Department on March 21, 2003 ( 303 A.D.2d 1059); permission for leave to appeal was denied by the New York Court of Appeals on July 2, 2003 ( 100 N.Y.2d 584).
The one-year statute of limitations on a petition for habeas corpus is tolled only for "[t]he 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). As previously noted, Petitioner's first application for coram nobis was filed on April 27, 1999, about one month prior to the date on which his conviction became final. That application was denied by the Appellate Division, Fourth Department on October 1, 1999. Petitioner's initial attempt to obtain collateral review of his conviction in state court thus operated to toll the one-year statute of limitations applicable to petitions for habeas corpus by 131 days, measured from the time his state conviction became final (May 24, 1999) until the date that the Fourth Department denied his application for coram nobis (October 1, 1999). Petitioner's second application for coram nobis relief was filed on May 3, 2000 and denied by the Fourth Department on July 7, 2000. The time that elapsed between the denial of the petitioner's first application for coram nobis and the filing of his second application for such relief (215 days) was not tolled, with no motions for collateral relief pending during that period. The filing of petitioner's second application for coram nobis caused tolling to resume on May 3, 2000 and continue for 66 days, ending July 7, 2000 when the Fourth Department denied that application. Petitioner thus received the benefit of an additional 66 days of tolling during the pendency of his second application for coram nobis relief. Petitioner's next collateral attack on his conviction did not take place until the filing, on April 1, 2002, of his N.Y. CRIM. PROC. LAW 440.10 motion to vacate his conviction. The lapse of 633 days between the denial of petitioner's second application for coram nobis and the filing of his N.Y. CRIM. PROC. LAW 440 motion was therefore not tolled.
At the time petitioner's second application for coram nobis was in state court, New York's procedural rules provided that the Court of Appeals could not review a denial by the Appellate Division of such an application. Therefore, the tolling period for petitioner's application ended with the Fourth Department's denial of his application, even though petitioner filed application with the Court of Appeals for leave to appeal, which was dismissed by the Court as not appealable on August 15, 2000. See Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001).
Petitioner's response does not indicate the precise date on which he filed his Article 440 motion. However, inasmuch as the copy of his Notice of Motion for 440.10 relief attached to his response is dated "April __, 2002," the Court will assume, for the purpose of determining tolling, that it was filed on April 1, 2002.
Petitioner's filing of the C.P.L N.Y. CRIM. PROC. LAW § 440 motion on April 1, 2002 caused tolling to resume until the Fourth Department's final denial, on October 30, 2003, of his attempt to appeal the denial of that motion by the Ontario County Court. The statute of limitations under AEDPA was thus tolled during the pendency of petitioner's § 440.10 motion (578 days). During this period petitioner's third application for coram nobis was filed (January 9, 2003) and denied by the Fourth Department (March 21, 2003), with the Court of Appeals denying leave to appeal (July 2, 2003). Inasmuch as this application for coram nobis ran concurrently with petitioner's N.Y. CRIM. PROC. LAW § 440 motion, it thus did not cause any additional time to be tolled.
With respect to a N.Y. CRIM. PROC. LAW § 440.10 motion, the limitations period is tolled from the time it is filed in the trial court until the Appellate Division decides the motion or denies an application for leave to appeal from the denial of the motion. Bethune v. Sabourin, 299 F. Supp. 2d 162, 164 (W.D.N.Y. 2004). Petitioner's § 440.10 motion was denied by the County Court on May 28, 2003. The Fourth Department denied his motion for leave to appeal on July 23, 2003, and denied his application to reargue that motion on October 30, 2003.
Petitioner filed his federal habeas petition on December 3, 2003, or 1,288 days after the statute of limitations under AEDPA expired on May 24, 2000. Aggregating the tolling periods provided by the filing of petitioner's several collateral attacks upon his conviction in state court, as described above (his first and second applications for coram nobis, and his N.Y. CRIM. PROC. LAW § 440.10 motion), petitioner accrued the benefit of 775 days of tolling. Therefore, to be timely, petitioner would have had to file his petition by July 8, 2002 (775 days from (May 24, 2000). But the petition was not filed until December 3, 2003 and is therefore untimely.
Apparently anticipating that the Court's computation of the relevant time periods, as set forth above, would lead to the conclusion that his petition was not timely filed, petitioner's response notes that in addition to his several motions for post-conviction relief in state court, he had also filed motions pertaining to a New York Civil Practice Law and Rules Article 78 application in which he had sought to obtain information that would bolster his application for collateral relief; his response attaches a notice of appeal he had filed in the Article 78 proceeding in April, 2001, which recites that he had commenced that proceeding in November, 1999. He asserts that the Article 78 motions would "cover the period between collateral motions," which the Court takes to mean that additional time would have been tolled during the pendency of his Article 78 proceeding. However, in Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001), the Second Circuit held that Article 78 proceedings to obtain material relevant to a petitioner's motions for collateral relief are not "applications for State post-conviction or other collateral review" of his claim under 28 U.S.C. § 2244(d)(2), and thus do not toll the statute of limitations established by AEDPA. Therefore, the Article 78 motions filed by the petitioner did not serve to toll additional time.
Further, petitioner has not identified any "extraordinary circumstance" which made it impossible for him to file his petition within the one-year time period. Therefore, petitioner has failed to provide a basis for the Court to equitably extend the limitations period beyond the one year. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) ("In order to equitably toll the one-year period of limitations, [a petitioner] must show that extraordinary circumstances prevented him from filing his petition on time. . . . In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll"), cert. denied, 531 U.S. 840, 121 S. Ct. 104, 148 L.Ed.2d 63 (2000); see also Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (noting that the Second Circuit has applied equitable tolling doctrine "as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights") (internal quotation marks and citation omitted).
The burden is on the petitioner to demonstrate that he has met the high standard required before the Court may consider applying equitable tolling to his situation. Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) ("[P]etitioner [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.'") (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)), cert. denied, 536 U.S. 925, 122 S. Ct. 2593, 153 L.Ed.2d 782 (2002). Because the Court finds that petitioner has failed to meet this high standard, the Court is constrained to apply the statute as written and dismiss the petition as untimely.
B. Timeliness Under § 2244(d)(1)(D).
While concluding that the petition is not timely under the one year rule of § 2244(d)(1)(A), the Court has also considered whether the petition may nevertheless be timely under § 2244(d)(1)(D) based upon petitioner's assertion that his claim is based upon newly discovered evidence. Section 2244(d)(1)(D), the so-called "newly discovered evidence" provision of the AEDPA, provides a petitioner with one year in which to seek federal habeas relief beginning "from the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
Petitioner alleges that in 2002, in connection with his prosecution of his Article 440 motion (described above), he discovered evidence that his trial attorney had a conflict of interest, and that he had thus been denied the effective assistance of counsel at trial. The facts alleged by petitioner do not support the application of § 2244(d)(1)(D) to this petition. The law is clear that when computed under subsection (d)(1)(D), the one-year statute of limitations begins to run from the date on which the facts supporting the claim presented could have been discovered "through the exercise of due diligence . . . regardless of whether petitioner actually discovers the relevant facts at a later date." Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000) (citation omitted; internal quotations omitted). See also Hector v. Greiner, No. No. 99 CV 7863 FB, 2000 WL 1240010 at *1 (E.D.N.Y. Aug. 29, 2000) ("Evidence in existence at an earlier date, though perhaps unknown to a petitioner, cannot later be described as newly discovered."). In the instant matter, evidence of petitioner's attorney's alleged conflict of interest, having to do with counsel's membership on a city council in the county in which petitioner was tried, was clearly in existence and could have been obtained by him before and during his trial. Because the factual predicate for petitioner's claim thus could have been discovered prior to the date on which his conviction became final, the extension of limitations period provided by § 2244(d)(1)(D) is not applicable.
CONCLUSION
The petition is hereby dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 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, 82 S.Ct. 917, 8 L.Ed.2d 21 (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 HEREBY IS ORDERED, that the petition is dismissed;
FURTHER, that a certificate of appealability is denied; and
FURTHER, that leave to appeal as a poor person is denied.
SO ORDERED.