Opinion
00 Civ. 401 (MBM)
June 18, 2001
ROBERT MORGENTHAU, ESQ. District Attorney, New York County MORRIE I. KLEINBART, ESQ. Assistant District Attorney (Attorney for Respondent Bennett) New York, New York.
RAFAEL RODRIGUEZ Elmira Correctional Facility Elmira, New York.
OPINION and ORDER
Rafael Rodriguez petitions pro se, pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), challenging his state court conviction for murder in the Second degree and attempted murder in the second degree Respondent has moved to dismiss Rodriguez's petition on statute of limitations grounds. Magistrate Judge Kevin Nathaniel Fox recommended in a Report and Recommendation dated July 17, 2000 (the "Report"), that Respondent's motion be denied. Respondent submitted a Notice of Objection to the Report challenging Magistrate Judge Fox's legal conclusions with respect to the statute of limitations issue. For the reasons stated below, Magistrate Judge Fox's Report is affirmed and Respondent's motion to dismiss the petition is denied.
I.
The relevant facts are set forth in the Report, and are summarized as follows Rodriguez was convicted on October 28, 1992, of murder in the second degree and attempted murder in the second degree after a jury trial in the New York State Supreme Court, New York County. (Report at 1) The conviction was affirmed by the Appellate Division, First Department, in a Decision and Order dated April 11, 1996. (Id.) The New York Court of Appeals denied Rodriguez leave to appeal on May 28, 1996. (Id.)
In an application dated April 14, 1997, Rodriguez petitioned this court for a writ of habeas corpus, alleging prosecutorial misconduct and ineffective assistance of trial counsel. (Id. at 2) On April 27, 1999, while Rodriguez's federal habeas corpus petition was still pending, Rodriguez made an application for a writ of error coram nobis to the Appellate Division, First Department, alleging ineffective assistance of appellate counsel. (Id.) On May 21, 1999, Rodriguez made a request to withdraw his petition in this court, without prejudice, advising the court that he had not exhausted his state remedies. (Id.) Rodriguez's request was granted by order dated June 21, 1999. (Id.)
On September 16, 1999, the Appellate Division, First Department, denied Rodriguez's application for a writ of error coram nobis, and Rodriguez submitted a new petition for a writ of habeas corpus to this court dated November 22, 1999, alleging (1) prosecutorial misconduct; (2) ineffective assistance of appellate counsel; and (3) trial court error based on the failure to suppress identification testimony as the fruit of an illegal arrest. (Id.) Respondent moved to dismiss the petition as timebarred under the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244 (d)(1). Magistrate Judge Fox recommended that Respondent's motion be denied, and Respondent now objects to this recommendation.
II.
The AEDPA requires a petitioner to file a habeas corpus petition within one year from the date the judgment of his conviction becomes final. See 28 U.S.C. § 2244 (d)(1)(A). This one-year period begins to run from the date direct review of the case has been completed by the highest court of the relevant state and the time to seek direct review in the United States Supreme Court by writ of certiorari expires — which is 90 days after entry of the judgment of conviction or entry of the order denying discretionary review. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). This one-year period also may be tolled by the filing of a state post-conviction application. 28 U.S.C. § 2244 (d)(2) provides:
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.
Here, a judge of the New York Court of Appeals denied Rodriguez leave to appeal on May 28, 1996. Ninety days later, on August 26, 1996, Rodriguez's conviction became final, and the one-year limitations period contained in § 2244(d)(1)(A) began to run. However, this one-year period was tolled by the filing on April 14, 1997 of Rodriguez's first federal habeas petition, see 28 U.S.C. § 2244 (d)(2); Walker v. Artuz 208 F.3d 357, 358 (2d Cir. 2000) (holding that Pendency of federal habeas petition tolls one-year limitations period of § 2244(d) (1)), and continued to be tolled by the Pendency of Rodriguez's petition to the Appellate Division, First Department for a writ of error coram nobis. See 28 U.S.C. § 2244 (d)(2). The limitations period began to run again on September 16, 1999, when Rodriguez's coram nobis petition was denied. At that time, 133 days of the one-year limitations period remained Rodriguez filed this federal habeas petition on November 22, 1999 — 68 days before the one-year period elapsed.
Respondent does not dispute that Rodriguez's petition would be timely if tolling were permitted However respondent argues that the filing of Rodriguez's first federal habeas petition did not toll the one—year limitations period Respondent relies in part on Slack v. McDaniel 120 S.Ct. 1595 In Slack, the Court held that a habeas petition filed after an earlier petition had been dismissed for failure to exhaust state court remedies was not a "second or successive petition" under 28 0S.C § 2244(b). The Court stated that it was "more appropriate to treat the [earlier] petition as if it had never been filed." Id, at 1606.
Relying on this language in Slack respondent argues that Rodriguez's voluntary dismissal of his first federal habeas petition, because he had failed to exhaust his state court remedies, means that the first petition must be treated as if it had never been filed, and it is incapable of tolling the one-year limitations period of § 2244(d)(2). I disagree. First, as Magistrate Judge Fox notes in the Report, the Slack Court considered only whether a petition filed after dismissal for failure to exhaust was a "second or successive" petition under § 2244(b). The Court did not consider or construe the tolling provisions of § 2244(d)(2). Moreover, although the Slack Court noted that petitions dismissed for failure to exhaust should be treated as if they had never been filed for purposes of § 2244(b), that holding does not compel the conclusion that such petitions do not toll the limitations period. If anything, to hold that such petitions do not toll the limitations period would make Slack academic, as most petitioners seeking to refile their federal habeas petitions, and to benefit from the holding of Slack, would be barred from doing so by the one-year limitations provision.
Respondent argues also that, because Rodriguez's first federal habeas petition contained unexhausted claims, it was not "properly filed" within the meaning of § 2244(d) and therefore cannot toll the one-year period. However, the Supreme Court recently held that § 2244(d)'s "properly filed" requirement is designed to ensure only that an application's "delivery and acceptance are in compliance with the applicable laws and rules governing filings." Bennett v. Artuz, 121 S.Ct 361, 364 (2000). As the Court observed, "the question of whether an application is 'properly filed' is quite separate from the question of whether the claims contained in the application are meritorious and free from procedural bar." Id.
Here, there is no indication that Rodriguez's first federal habeas petition was not "properly filed" under the federal rules governing filings. That the application may have contained unexhausted claims is irrelevant to whether it was "properly filed" under § 2244(d). See Bennett, 121 S.Ct. at 364. Accordingly, the one-year limitations period was tolled during the pendency of Rodriguez's petition, and did not begin to run again until Rodriguez's petition for a writ of error coram nobis was dismissed by the Appellate Division, First Department on September 16, 1999. The filing of the current petition on November 22, 1999 was therefore timely. * * *
For the reasons set forth above, respondent's motion to dismiss Rodriguez's habeas corpus petition is denied.