Opinion
00 Civ. 8823 (DLC)
September 13, 2002
Duane Baity, Fishkill Correctional Facility, Beacon, NY, Petitioner, Pro Se.
Morrie I. Kleinbart, Assistant District Attorney for New York County, New York, NY, Attorney for Respondent.
OPINION AND ORDER
After finding that Duane Baity's ("Baity") instant habeas petition was untimely, respondent and petitioner were invited to address the issue of whether the voluntary dismissal of Baity's previous federal habeas petition warranted issuance of a certificate of appealability ("COA"). For the reasons that follow, the Court declines to issue a COA.
BACKGROUND
The facts relevant to the instant motion are outlined in this Court's prior two decisions in this case, familiarity with which is assumed. Baity v. Mazzuca, No. 00 Civ. 8823 (DLC), 2002 WL 87664 (S.D.N.Y. Jan. 23, 2002); Baity v. Mazzuca, No. 00 Civ. 8823 (DLC), 2001 WL 897174 (S.D.N.Y. Aug. 9, 2001).
On November 2, 1989, Baity was convicted of second degree felony murder and second degree attempted robbery of Christopher Watras ("Watras"), who was mugged and later died of injuries sustained during the attack. At trial, Ivan James ("James") testified that he saw a group of men at Times Square approach Watras, hit him in the face, and rob him, but also testified that he did not see Baity at the scene. Rodney Lewis ("Lewis") and Joseph Gordon ("Gordon"), both testifying pursuant to cooperation agreements, identified Baity as a participant in the attack on Watras.
Baity's state court conviction became final on June 8, 1992, and his federal habeas petition filed on April 14, 1997 ("1997 Petition"), in which he challenged the district court's failure to suppress identification testimony and instruct the jury on a defense to felony murder, as well as his lack of counsel at a lineup, was timely. On July 8, 1997, Baity's petition was dismissed at his request and without prejudice to allow him to exhaust an additional claim of ineffective assistance of counsel in state court. See Baity v. Greiner, No. 97 Civ. 3299 (KTD). The July 8, 1997 order dismissing his 1997 Petition did not advise him of the consequences and duties of dismissal or the fact that his claims remained subject to AEDPA's statute of limitations. When Baity's petition was dismissed, only ten days of his grace period remained. Not counting the time during which Baity's collateral challenge was pending in state court, it took Baity a total of 923 days — almost thirty-one months — to return to federal court.
Baity's grace period actually expired ten days after his federal petition was filed. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Because Baity's petition was pending for only seventy-five days in federal court, Duncan does not significantly affect the timeliness of his petition and thus does not present grounds for relief under Rule 60(b). See Devino v. Duncan, ___ F. Supp.2d ___, No. 01 Civ. 9044 (DLC), 2002 WL 1858768, at *5 (S.D.N.Y. Aug. 13, 2002).
Although the timeliness of Baity's petition was, in this Court's last Opinion, calculated as if Baity had petitioned for a writ of certiorari from the denial of his Section 440.10 petition in order to arrive at the most generous calculation possible, this time is not properly tolled. Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
This Court determined that Baity's federal habeas petition filed on September 23, 2000 ("2000 Petition") was untimely and that Baity had not asserted circumstances sufficient to warrant equitable tolling, principally because he did not act with diligence throughout the period he sought to toll. Baity, 2002 WL 87664, at *3-4. Because Baity was aware that AEDPA's one-year statute of limitations applied to his first federal petition, and because a misunderstanding of the law is not sufficient to warrant equitable relief, Baity's belief that AEDPA's statute of limitations was satisfied once he filed his federal petition on April 14, 1997, did not constitute grounds for equitable tolling. Id. at *4. Finally, the Court concluded that Zarvela v. Artuz, which requires district courts to stay a petition if dismissal of the entire petition "could jeopardize the timeliness of [the petitioner's] collateral attack," Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir.) (citation omitted), cert. denied, 122 S.Ct. 506 (2001), did not present grounds for equitable tolling or for relief under Rule 60(b), Fed.R.Civ.P., because Baity had not acted with diligence in pursuing his claims in state court and returning to federal court, much less within the time provided for under Zarvela. Baity, 2002 WL 87664, at *4; see also Warren v. Garvin, 219 F.3d 111, 114-15 (2d Cir.), cert. denied, 531 U.S. 968 (2000); Devino, 2002 WL 1858768, at *5. The Court requested additional briefing, however, on the issue of whether the pre-Zarvela discontinuance of a petition ten days before the end of the petitioner's grace period and without notice of the consequences of such discontinuance constitutes a violation of the Suspension Clause.
The Zarvela court explained that "[p]rompt action by the petitioner to initiate exhaustion and return to federal court after its completion serves as the functional equivalent of the `reasonable diligence' that has long been a prerequisite to equitable tolling of limitations periods." Zarvela, 254 F.3d at 382.
DISCUSSION
Under 28 U.S.C. § 2253 (c)(1), a petitioner may not appeal a final order denying a petition for habeas corpus unless issued a COA. A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2) (2002); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). When a court
denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Eltayib v. United States, 294 F.3d 397, 400 (2d Cir. 2002); Bethea v. Girdich, 293 F.3d 577, 577-78 (2d Cir. 2002) (per curiam). Because Baity's petition states on its face a valid claim of the denial of his Sixth Amendment right to counsel, a certificate of appealability should issue if reasonable jurists would find it debatable that this Court's dismissal of his petition as untimely was correct. Baity argues principally that the dismissal of his petition as untimely was incorrect because the pre-Zarvela dismissal of his first petition constitutes a violation of his rights under the Supension Clause and has resulted in the conviction of one who is actually innocent.
The Constitution's Suspension Clause protects the privilege of the habeas corpus writ. U.S. Const., art. I, § 9, cl. 2; see also Immigration Naturalization Serv. v. St. Cyr, 533 U.S. 289, 301 (2001). The Second Circuit has held that AEDPA's one-year statute of limitations does not per se violate the Suspension Clause because the limitations period "leaves habeas petitioners with some reasonable opportunity to have their claims heard on the merits." Lucidore v. N.Y.S.tate Div. of Parole, 209 F.3d 107, 113 (2d Cir.), cert. denied, 531 U.S. 873 (2000). Dismissal of Baity's petition with only ten days of his limitations-period left and without notice of the consequences constitutes a violation of the Suspension Clause only if it has rendered the habeas remedy "inadequate or ineffective to test the legality of detention." Id. (citation omitted); see also Swain v. Pressley, 430 U.S. 372, 381 (1977).
The Suspension Clause provides that the "Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const., art. I, § 9, cl. 2.
In interpreting the phrase "inadequate or ineffective" in the context of the habeas provision for persons convicted in federal court, the Second Circuit has explained that while inadequate or ineffective "is not necessarily limited to practical considerations" such as the physical impossibility of attending a hearing, it must nonetheless "refer to something that is still less than the full set of cases in which § 2255 is either unavailable or unsuccessful." Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997). In other words, while the "strict impossibility of filing a claim does not exhaust the subset of cases in which a procedural bar creates an unreasonable burden upon petitioners sufficient to raise serious issues under the Suspension Clause," Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) (per curiam) (citation omitted), at the same time, the Suspension Clause is not implicated by every potential procedural or substantive limitation on a petitioner's ability to successfully petition for a writ of habeas corpus.
In Muniz, the court explained that the application of a limitations period of less than one year would fall within the subset of cases in which a procedural bar creates an unreasonable burden upon petitioners. Id. at 128-29. The Second Circuit also has not foreclosed the conclusion that the strict application of the one-year statute of limitations may create in some circumstances an unreasonable burden on the habeas remedy. Id. at 129. In such "rare case[s]," however, equitable tolling may be available as an avenue for avoiding Suspension Clause issues. Warren, 219 F.3d at 113; see also Muniz, 236 F.3d at 129.
Jurists of reason would not find "debatable" the question of whether the discontinuance of Baity's 1997 Petition rendered his habeas remedy "inadequate or ineffective." As the Second Circuit has explained in a similar case, a petitioner, whose petition was voluntarily dismissed at his request to exhaust state remedies and who returned to federal court long after the one-year limitations period had expired, cannot "plausibly claim that he was unreasonably burdened here, inasmuch as he had years to file his federal petition, he was afforded reasonable time after the enactment of AEDPA to file, and he has given no satisfactory explanation as to why he was unable to file his petition on time." Warren, 219 F.3d at 113 n. 2.
Like the petitioner in Warren, Baity cannot plausibly claim that his right to pursue habeas relief was unreasonably burdened. Although his 1997 Petition was voluntarily dismissed with only ten days of his limitations period remaining, he was not denied the opportunity to file a federal habeas petition and was afforded AEDPA's full one-year grace period in which to file. It was not impossible for Baity to have exhausted his claims and returned to federal court. Even had he required more than ten days to do so, the limitations period could have been equitably tolled or the voluntary discontinuance vacated had he pursued his claims with diligence. While it would have been preferable for the district court to "include in the dismissal order an appropriate explanation to a pro se petitioner of the available options and the consequences of not following required procedures" when it "elect[ed] not to stay the exhausted claims," Zarvela, 254 F.3d at 382, failure to do so did not render the habeas remedy ineffective or inadequate, particularly since Baity admits that he was aware that the one-year limitations period applied to his petition.
Baity also argues, however, that he is actually innocent and that even if the application of AEDPA's statute of limitations would otherwise be constitutional, it may not be applied to preclude a claim that a constitutional violation has resulted in the conviction of one who is actually innocent. While foreclosing habeas review of a claim brought by one actually innocent raises Suspension Clause concerns, it is not necessary to address this constitutional question if the petitioner has failed to make a showing of actual innocence. Lucidore, 209 F.3d at 114. In order to demonstrate "actual innocence," Baity "must present new reliable evidence that was not presented at trial and show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt." Id. (citation omitted); see also Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002), petition for cert. filed (U.S. Aug. 9, 2002) (No. 02-5772). Actual innocence means "factual innocence, not mere legal insufficiency." Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998) (citation omitted).
Baity has not made the requisite showing of actual innocence. Baity emphasizes that James testified at trial that he had not seen Baity at the scene of the crime and that Lewis and Gordon, who did identify him, were unreliable witnesses. In addition, Baity claims that the medical evidence indicates that the fatal injury may not have been caused by a blow to the face and therefore even though Gordon and Lewis testified that Baity hit Watras in the face, such a blow did not cause Watras's death. In his habeas petition, Baity also claimed that he was denied effective assistance of counsel because his counsel did not interview certain eyewitnesses to the attack, including an eyewitness who did not identify Baity as one of Watras's attackers after being shown a photo array including Baity's mug shot. Baity has not shown that he is factually innocent of the crimes of which he was convicted — namely, felony murder and robbery. He has not presented evidence that makes it likely that he would have been acquitted. Because he has not demonstrated "actual innocence," it is not necessary to decide whether the dismissal of his 1997 Petition constitutes a violation of the Suspension Clause.
CONCLUSION
Because the petitioner has not made a substantial showing of a denial of a federal right, appellate review is not warranted, Tankleff, 135 F.3d at 241, and I decline to issue a COA. In addition, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case.
SO ORDERED.