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declining to find equitable tolling or to apply Zarvela, where initial petition was dismissed with only 10 days remaining in one-year limitations period, because petitioner did not act diligently in exhausting state court remedies, waiting 11½ months to file motion to vacate pursuant to N.Y. Crim. Proc. Law § 440.10 and 16 months to return to state court
Summary of this case from McCalla v. GreinerOpinion
00 Civ. 8823 (DLC).
January 22, 2002
Duane Baity, Beacon, NY., Petitioner, Pro Se
OPINION AND ORDER
Duane Baity's ("Baity") original petition for a writ of habeas corpus was dismissed without prejudice in 1997, to allow Baity an opportunity to exhaust a claim of ineffective assistance of counsel that was not included in his first petition. Baity had requested dismissal in order to consolidate all of his claims in a later petition and to avoid the bar to successive petitions under 28 U.S.C. § 2244 (b)(3). Having exhausted his ineffective assistance claim, on September 23, 2000, Baity filed his petition a second time. Approximately twenty-seven months of the time between the dismissal of the 1997 petition and the filing of the 2000 petition are not tolled through the pursuit of collateral remedies in state court. Having considered Baity's arguments in support of equitable tolling and for the reasons that follow, equitable tolling is not appropriate in this case. The petition shall be served on the state, however, so that both parties may be heard on whether a certificate of appealability should issue solely on the question of whether the district court's discontinuance of Baity's 1997 petition should be vacated.
BACKGROUND
Under AEDPA, a prisoner in state custody has one year after the date his conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244 (d)(1). Baity was convicted of second degree murder and second degree attempted robbery on November 2, 1989. The Appellate Division affirmed his conviction on December 10, 1991, and the Court of Appeals denied his application for leave to appeal on March 10, 1992. Baity's state court conviction became final ninety days later, on June 8, 1992.
A prisoner whose conviction became final prior to AEDRA's effective date of April 24, 1996, has a one-year grace period after that date to file a petition. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Baity's federal habeas petition, delivered to prison officials on April 14, 1997, was timely filed ("1997 Petition"). See Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (prison mailbox rule). Baity's 1997 Petition challenged the admission of identification testimony at trial, the court's failure to charge an affirmative defense to felony murder, and Baity's lack of counsel at a lineup.
On July 8, 1997, Baity's petition was dismissed at his request and without prejudice to allow him to exhaust a claim of ineffective assistance of counsel in state court. See Baity v. Greiner, No. 97 Civ. 3299 (KTD). Petitioner brought a motion under C.P.L. § 440.10 in state court on June 25, 1998, approximately eleven and a half months (352 days) after his federal petition was voluntarily dismissed. Baity's Section 440.10 motion was denied without a hearing on March 2, 1999. Baity had until May 31, 1999 to file a petition for review of that denial with the Supreme Court.
The court dismissed Baity's petition by endorsement on June 27, 1997, but the final judgment dismissing his petition for the reasons stated in the endorsement was not filed and entered until July 8, 1997.
Because Baity did not seek Supreme Court review of the denial of his application for state collateral review, the ninety-day time period during which he could have sought such review is not tolled under Section 2244(d)(2). Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). It is unnecessary to decide whether Smaldone applies retroactively because these ninety days do not affect the analysis of Baity's claim. The timeliness of Baity's claim will be evaluated as if this period could be tolled.
Baity refiled his federal habeas petition on September 23, 2000 ("2000 Petition"), almost sixteen months (481 days) after the end of the time period during which he could have appealed the denial of his Section 440.10 motion to the Supreme Court. Chief Judge Mukasey determined that Baity's 2000 Petition was untimely. When Baity's initial federal habeas petition was filed on April 14, 1997, all but ten days of his one-year grace period had run. Since Baity's 1997 Petition was dismissed on July 8, 1997, his one-year grace period thus lapsed no more than ten days later, on July 18, 1997. The one-year grace period was not reset after Baity sought state post-conviction collateral review. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), cert. denied, 531 U.S. 840 (2000)
Under Duncan v. Walker, Baity's grace period would have expired on April 24, 1997, because AEDPA's limitations period is not tolled during the pendency of federal collateral review. Duncan v. Walker, 533 U.S. 167. 121 S.Ct. 2120, 2129 (2001) Because this seventy-five day difference is not crucial to the analysis of Baity's claim, the Court declines to decide whether the rule in Duncan has retroactive effect.
On January 29, 2001, Baity submitted an affirmation describing the reasons for his delay. The case was reassigned to this Court on May 30, 2001. In Baity v. Mazzuca, No. 00 Civ. 8823, 2001 WL 897174 (DLC) (S.D.N.Y. Aug. 9, 2001), the Court determined that even discounting for the time during which Baity's Section 440.10 motion was pending in state court, see 28 U.S.C. § 2244 (d)(2), his 2000 Petition was untimely. In this decision, the Court explained that equitable tolling
is available when extraordinary circumstances" prevent a prisoner from filing a timely habeas petition. "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll."Id. at *2 (quoting Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (citation omitted)). The Court found that Baity had not yet described facts to warrant equitable tolling and gave Baity another opportunity to do so in response to the Court's more detailed description of the doctrine. The decision explained,
[Baity's] affidavit indicates that his delay in filing his October 2000 habeas petition was related to his understanding of the nature of the dismissal of his 1997 habeas petition but does not provide the Court with sufficient information to reach a decision about whether equitable tolling is appropriate here. Nor does petitioner's affidavit present sufficient information from which the Court can conclude that he acted with reasonable diligence throughout the period he seeks to toll. Accordingly, petitioner is again directed to show cause by affirmation by October 8, 2001 why the expiration of the AEDPA grace period should not bar his 2000 habeas petition.Id.
In an affirmation of September 27, 2001, Baity argues that equitable tolling of AEDPA's statute of limitations is warranted in his case for three reasons. First, he maintains that after the district court dismissed his petition, he "began the painstaking task of gathering information, acquiring legal assistance, and preparing the pleadings for his collateral attack on his conviction." Second, petitioner asserts that he was transferred from Ossining Correctional Facility to the Fishkill Correctional Facility while preparing his 2000 Petition. Third, Baity notes that he did not obtain satisfactory legal assistance at Fishkill Correctional Facility until September 2000.
DISCUSSION
Since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," courts may equitably toll the period. Smith, 208 F.3d at 17. Equitable tolling of the one-year limitations period for Section 2254 petitions is available "when 'extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren, 219 F.3d at 113 (quoting Smith, 208 F.3d at 17). The factors that can give rise to equitable tolling are the same factors that establish "cause" for failure to raise a claim on direct appeal. Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000) (citing factors such as official interference or the unavailability of a factual or legal basis for a claim). In order to show that extraordinary circumstances prevented him from filing his petition on time, a petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll." Warren, 219 F.3d at 113 (citation omitted)
Petitioner's failure to obtain satisfactory legal assistance after his transfer to Fishkill Correctional Facility does not constitute an "extraordinary circumstance" sufficient to warrant equitable tolling. According to Baity, he found it difficult to obtain the help of a legal assistant he trusted, and rejected the legal assistance made available to him. Since a petitioner's "pro se status [alone] . . . does not merit equitable tolling," Smith, 208 F.3d at 18, discontent with the quality of individuals available to provide legal assistance in the prison does not provide a basis for equitable tolling.
Baity does not complain that he was deprived of access to legal materials. See Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001); Valverde, 224 F.3d at 133.
Moreover, Baity was able to file his Section 440.10 motion in state court on June 25, 1998, apparently without legal assistance and possibly while in transit between correctional facilities. The causal link between the extraordinary circumstance and the lateness of a petitioner's filing cannot be demonstrated "if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Valverde, 224 F.3d at 134; see also Hizbullahankhamon, 255 F.3d at 75. That Baity filed a new state court petition while experiencing the conditions on which he relies for equitable tolling indicates that he could have filed a timely federal petition notwithstanding these circumstances. Similarly, because the only claim in Baity's 2000 Petition that was not contained in his 1997 Petition had been investigated and prepared for his Section 440.10 motion, it is not clear why Baity required almost sixteen months after dismissal of the motion and the help of a legal assistant to file his 2000 Petition.
For similar reasons, Baity has not established that he worked with the diligence required for equitable tolling. AEDPA's one-year grace period may not be tolled "[i]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the circumstances began." Valverde, 224 F.3d at 134. According to petitioner's affirmation, he began to prepare his subsequent collateral attacks as soon as his first habeas petition was dismissed on July 8, 1997. Even discounting the approximately eleven months (340 days) during which his Section 440.10 motion was pending, petitioner did not file his 2000 federal petition until over two years and three months — twenty-seven months — after the dismissal of his 1997 Petition. Delays of this length rarely constitute reasonable diligence. See Warren, 219 F.3d at 113 (twenty and a half month delay not tolled).
While a petitioner is not ineligible for equitable relief merely because he filed late in the grace period, Valverde, 224 F.3d at 135-36, Baity's 2000 Petition would be untimely even had his 1997 Petition been filed early in the grace period.
For a limitations period to be tolled, a petitioner "must have acted with reasonable diligence throughout the period he seeks to toll." Id. (quoting Smith, 208 F.3d at 17) (emphasis added). Even if the circumstances Baity alleges may have at times interfered with the preparation of a revised petition, he has not described circumstances that interfered with the preparation for any substantial portion of the twenty-seven months. The limitations period could only be tolled "to permit the filing of a petition on or before the earliest date after the [extraordinary circumstance] by which that petitioner, acting with reasonable diligence, should have filed his or her petition."Valverde, 224 F.3d at 134. The Court cannot reasonably assume that the circumstances Baity describes continued throughout the entire twenty-seven months he seeks to toll.
Baity maintains that he was unaware of the consequences of voluntary dismissal and believed that AEDPA's statute of limitations was satisfied once he filed his federal petition on April 14, 1997. 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. The district court's endorsement of June 27, 1997, referenced in the order dismissing Baity's petition, noted only that
[p]rocedurally, pro se Petitioner should know that because the Petition is dismissed without prejudice for failure to exhaust state remedies, Petitioner is not required to seek authorization from the court of appeals when ref iling. Petitioner is directed to submit a copy of this Endorsement with his petition if and when he decides to refile.
The Magistrate Judge, in a Report and Recommendation ("Report") dated July 1, 1997, had recommended dismissal without prejudice because "[t]his course of action will not prejudice any party." The Report was not referenced in the district court's order, but Baity received a copy and submitted it to the Court for attachment to his 2000 Petition.
Baity admits, however, that he knew that AEDPA's one-year statute of limitations applied to his first federal petition. At the very least, he should have expected that his second petition would also be governed by a one-year limitations period. Instead of filing the 2000 Petition within twelve months of the dismissal of the 1997 Petition, Baity filed it twenty-seven months later, after subtracting the eleven months during which his state collateral attack was pending. Further, even were Baity mistaken about the consequences of dismissal, a misunderstanding of the law is not sufficient to warrant equitable relief. See Warren, 219 F.3d at 114-15 (petitioner's lack of knowledge about effect of dismissal on subsequent petitions insufficient to toll).
Finally, Baity argues that under Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), cert. denied, 122 S.Ct. 506 (2001), his 1997 Petition should not have been dismissed. Under Zarvela, district courts are required to stay a petition if dismissal of the entire petition "`could jeopardize the timeliness of [the petitioner's] collateral attack.'" Id. at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)). IfZarvela's holding applies retroactively, the district court's dismissal of Baity's exhausted claims when only ten days of Baity's one-year grace period remained could warrant relief. The Second Circuit has declined to address the question of whether Zarvela's holding applies retroactively. Smaldone, 273 F.3d at 139. Had Baity acted with reasonable diligence in pursuing his state court remedies and in returning to federal court, the court would be presented with a closer question. See, e.g., Jimenez v. Walker, 166 F. Supp.2d 765, 772 (E.D.N.Y. 2001). Because Baity has not acted with diligence, however, it is unnecessary to decide whether Zarvela applies retroactively.
If Zarvela applies, Baity's 2000 Petition could be construed as an independent action under Rule 60(b) to vacate the order granting dismissal of his claims. Fed.R.Civ.P. 60(b); see Warren, 219 F.3d at 114.
Under 28 U.S.C. § 2253 (c)(1), a petitioner may not appeal a final order unless issued a certificate of appealability. A court may issue such a certificate if a petitioner demonstrates a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2);Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). To make this showing, "`the petitioner need not show that he should prevail on the merits. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.'" Nelson v. Walker, 121 F.3d 828, 832 (2d Cir. 1997) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)) (emphasis and alteration in original).
Baity's petition presents the question 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. Cf.Muniz v. United States, 236 F.3d 122, 128-29 (2d Cir. 2001). Given "the procedural complexities confronting a prisoner who endeavors to exercise his statutory right to challenge a state court conviction" by petition to federal court, Zarvela, 254 F.3d at 378, the petitioner may deserve an opportunity to address this limited legal issue.
CONCLUSION
For the reasons stated above, the Court finds Baity's petition untimely and declines to toll the twenty-seven months that are not tolled by the pendency of Baity's state court proceedings. Accordingly, it is hereby
ORDERED that the Clerk of Court shall serve the Attorney General of the State of New York and the District Attorney of New York County with a copy of Baity's petition and a copy of this Opinion and Order.
IT IS FURTHER ORDERED that the respondent shall have sixty (60) days from the date of service of the petition and this Opinion to file a response addressing whether a certificate of appealability should be granted 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.
IT IS FURTHER ORDERED that the petitioner shall have thirty (30) days from the date on which he is served with respondent's response to file a reply.
SO ORDERED: