Opinion
No. 03-CV-0796A.
June 7, 2004
ORDER
Petitioner, James Pearce, acting pro se, seeks relief pursuant to 28 U.S.C. § 2254, alleging that his conviction in County Court, Monroe County, State of New York, was unconstitutionally obtained, as set forth more precisely in the petition. By Order filed November 12, 2003, 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. (Docket No. 3). 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.
On December 5, 2003, petitioner filed his response. (Docket No. 4). 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. Specifically, petitioner's judgment became final and his time expired to seek direct review of his conviction on November 14, 2001. 28 U.S.C. § 2244(d)(1)(A); 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 (2001). Petitioner did not file this habeas corpus petition until October 24, 2003, or 344 days too late.
Petitioner's request for leave to appeal to the New York Court of Appeals was denied on August 16, 2001, People v. Pearce, 96 N.Y.2d 923 (2001) (Table). Petitioner had 90 days from that date in which to seek direct review of his conviction in the United States Supreme Court and that is the date his judgment became final for purposes of the statute of limitations. 28 U.S.C. § 2244(d)(1)(A).
Exclusive of any tolls provided by 28 U.S.C. § 2244(d)(2), petitioner had until November 14, 2002 to file this petition. He did not file it until October 24, 2003, which is 344 days past the expiration of the statute of limitations.
Petitioner's explanation does not provide any information which would permit the Court to extend the limitations period beyond the one year. While petitioner does indicate that he filed a separate state court collateral attack on his conviction, pursuant to New York Criminal Procedure Law ("C.P.L."), §§ 440.10 and 440.20, on July 30, 2002, which was ultimately denied on May 12, 2003 (Docket No. 4; Docket No. 1, Petition, ¶ 12(b)(7)), when the New York State Supreme Court, Appellate Division, Fourth Department, denied him leave to appeal from the trial court's denial of the C.P.L. §§ 440.10 and 440.20 motion, the toll provided during the pendency of that collateral attack, see 28 U.S.C. § 2244(d)(2), does not save the petition. The one-year period 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 claims is pending." 28 U.S.C. § 2244(d)(2). Petitioner's delay in waiting an additional 165 days to file this petition after the Appellate Division denied him leave to appeal from the denial of the C.P.L. §§ 440.10 and 440.20 motion is fatal to his petition even taking into consideration petitioner's claims set forth in his response to this Court's Order as to why this petition is not time-barred. (Docket No. 4).
Petitioner did file an application for leave to appeal from the May 12, 2003 denial of leave to appeal by the Appellate Division, which was denied on July 14, 2003, but that time is not tolled because the relief sought in that application is not recognized in New York. See C.P.L. § 450.90(1); Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 2 (2002) (a state-court petition is "pending" from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedure).
The time between November 14, 2001, the date the conviction became final under § 2244(d)(1)(A), and July 30, 2002, the date petitioner filed the C.P.L. §§ 440.10 and 440.20 motion, or 258 days, was not tolled and, therefore, ran on the statute of limitations clock. The time between July 30, 2002 and May 12, 2003, the date leave to appeal to the Appellate Division was denied, was tolled. Therefore, petitioner had an additional 107 days (365 days less 258 days, the time that had already run on the statute of limitations clock) after the end of the toll on May 12, 2003 to file his petition. He waited until October 24, 2003 to file the petition or an additional 165 days. Therefore, the petition was filed 58 days too late.
Petitioner claims that between February and May 2002, the Deputy Superintendent of Security at the Elmira Correctional Facility confiscated the law clerk's computer's "C.P.U. Units," which contained the inmate populations' legal material, and that between August and October 2002, the Superintendent at Elmira relocated the law library to an adjacent building that was handicap accessible as a result of a lawsuit filed by another inmate. These two events, petitioner claims, caused a delay in his filing of the C.P.L. § 440.10 and 440.20 motion. This, the Court finds, is not sufficient to equitably toll the statute of limitations because, even if you accept that these two events delayed the filing of the post-conviction motion, the motion was filed within the statute of limitations and, therefore, did toll the statute of limitations in petitioner's favor. In fact, the petitioner filed his C.P.L. §§ 440.10 and 440.20 motion on July 30, 2002, which was during the time the law clerk's computer was confiscated. Morever, the motion was denied by the trial court on January 24, 2003 (Docket No. 4), well after these two periods of "down time" had ended. Thus, there was no delay in filing the application for leave to appeal from the trial court's denial. Accordingly, petitioner has not identified any "extraordinary circumstance" which made it impossible to file his petition within the one-year time period and, therefore, petitioner has failed to provide a basis for the Court to 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."), cert. denied, 531 U.S. 840 (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).
Furthermore, and particularly relevant here, "the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d at 17. As noted above, petitioner waited an additional 165 days to file this petition after his application for leave to appeal from the denial of his C.P.L. §§ 440.10 and 440.20 motion was denied by the Appellate Division. Petitioner offers no explanation for this delay, which resulted in the filing of his petition in this Court 58 days beyond the end of the period of limitations. See fn. 4, supra.
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 (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.
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 (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.
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.