Opinion
02 Civ. 2312 (LAK)(KNF)
September 9, 2003
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Jose Garcia's ("Garcia") pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254, and the respondents' motion to dismiss. The respondents contend that Garcia's petition should be dismissed for failure to state a claim upon which relief may be granted, see Fed.R.Civ.P. 12(b)(6), because the petition is untimely, see 28 U.S.C. § 2244(d)(1). For the reasons set forth below, I recommend that the respondents' motion be granted.
II. BACKGROUND
On January 19, 1993, petitioner was convicted in New York State Supreme Court, Bronx County, after a jury trial, for murder in the second degree, see N.Y. Penal Law § 125.25, and sentenced to an indeterminate term of imprisonment of twenty-five years to life. On September 26, 1995, the New York State Supreme Court, Appellate Division, First Department unanimously affirmed the conviction. See People v. Garcia, 219 A.D.2d 541, 632 N.Y.S.2d 62 (App.Div. 1stDep't 1995). Garcia's application for leave to appeal to the New York Court of Appeals was denied on April 4, 1996. See People v. Garcia, 88 N.Y.2d 847, 644 N.Y.S.2d 694 (1996).
On November 26, 1997, the petitioner asked the Appellate Division to vacate its decision on the ground of ineffective assistance of appellate counsel. The motion was denied on July 23, 1998. On May 10, 1999, Garcia filed a petition for a writ of habeas corpus. In his petition, Garcia raised no claims but, rather, moved for an extension of the time in which to file an application for habeas corpus relief. The respondents moved to dismiss the petition as untimely pursuant to 28 U.S.C. § 2244(d). That motion was granted on March 3, 2000.
Thereafter, petitioner filed a motion to vacate the judgment of conviction pursuant to New York's Criminal Procedure Law ("C.P.L.") § 440.10. The motion was denied by the New York State Supreme Court, Bronx County, on December 7, 2000. The Appellate Division denied petitioner's application for leave to appeal on August 9, 2000.
In April 2002, Garcia sought leave to file a second or successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b). Garcia stated that his "first" petition "was not a habeas action" but, rather, a request for an extension of time. Garcia also asserted three grounds for habeas corpus relief: (i) his "actual innocence" of the offense for which he was convicted; (ii) "Brady violations" and the "practicing of fraud on the court" on the part of the prosecution; and (iii) ineffective assistance of trial counsel.
Under Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194 (1963), the prosecution is obligated to disclose to a criminal defendant exculpatory information which is known to be material to a defendant's guilt or punishment. The defendant is denied due process of law if the prosecution suppresses such material.
On May 7, 2002, the Court of Appeals for the Second Circuit denied the application for a second petition as unnecessary. See Garcia v. Portuondo, No. 02 Civ 3551 (2d Cir. May 7, 2002). The court stated: "[b]ecause the petitioner has never had a prior § 2254 petition decided on the merits, he is not subject to the Antiterrorism and Effective Death Penalty Act's ("AEDPA") gatekeeping provisions applicable to second or successive § 2254 petitions." The court concluded that the district court's dismissal of the 1999 petition as untimely, "absent any indication of the factual or legal basis for [the] § 2254 petition, especially given the various bases available for calculating the commencement of the AEDPA statute of limitations [under 28 U.S.C. § 2244(d)(1)]," was improper and, as such, not a determination on the merits. Id. The court ordered the matter remanded to the district court for a consideration on the merits of petitioner's claims and stated that it expressed "no opinion on the merits or timeliness of the claims." Id.
Garcia's case was reopened in the district court in June 2002, and the respondents were directed to serve and file an answer to his petition. The respondents have moved to dismiss the petition as time-barred. In the event the motion to dismiss is denied, the respondents have requested sixty (60) days in which to submit an answer to the petition. Petitioner opposes the motion; it is addressed below.
III. DISCUSSION
Timeliness of the Petition
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, amended 28 U.S.C. § 2244(d) to provide a one-year statute of limitations for habeas corpus petitions:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(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 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 he claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). "The limitation period is tolled during the time that a properly filed application for state post-conviction review is pending, and may be equitably tolled where appropriate." Acosta v. Artuz. 221 F.3d 117, 119 (2d Cir. 2000) (citing 28 U.S.C. § 2244(d)(2);Smith v. McGinnis. 208 F.3d 13, 17 [2d Cir. 2000]) (internal citations omitted).
Garcia's judgment of conviction became final after the effective date of AEDPA and is, therefore, subject to the one-year statute of limitations. Under 28 U.S.C. § 2244(d)(1)(A), Garcia was required to file his habeas corpus petition within one year of the date on which his judgment became final. A judgment becomes final, for the purposes of AEDPA, upon the conclusion of direct review or the expiration of the time to seek direct review in the United States Supreme Court by writ of certiorari. Sec Williams v. Artuz. 237 F.3d 147, 150-51 (2d Cir. 2001).
It does not appear that the other bases enumerated in 28 U.S.C. § 2244(d) for calculating the commencement of the AEDPA statute of limitations apply here. Specifically, as discussed infra, petitioner raises no new factual predicates relevant to his initial conviction to delay the triggering of the limitation period under subsection (D).
The respondents, noting that the Second Circuit Court of Appeals, in Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), found that a state conviction became final when leave to appeal to the New York Court of Appeals was denied, argue that "an analysis of the finality doctrine supports the Second Circuit's finding in Noble." However, in cases decided after Noble, the Second Circuit has adhered to the view that, for the purposes of 28 U.S.C. § 2244(d)(1), a state conviction becomes final ninety (90) days after the denial of leave to appeal by the New York Court of Appeals, that is, upon the expiration of the time to seek direct review in the United States Supreme Court by writ of certiorari.See, e.g., Pratt v. Greiner. 306 F.3d 1190, 1194 (2d Cir. 2002); Brown v. Artuz, 283 F.3d 492, 497 n. 1 (2d Cir. 2002).
Garcia's conviction became final on July 3, 1996, the date on which his time to seek certiorari from the United States Supreme Court expired. Therefore, Garcia was required to file his habeas corpus petition on or before July 3, 1997. The petition was filed, at the earliest, on the date Garcia filed his "motion" seeking an extension of time to file a petition — in effect, his "initial" petition — that is, May 10, 1999, nearly two years after the expiration of the limitations period. Thus, petitioner's application is untimely. Miscarriage of Justice
Garcia's "renewed" petition, in which he raised substantive grounds for habeas corpus relief, is dated September 25, 2001, and was received by the Pro Se Office for this judicial district on November 1, 2001. On May 22, 2002, the matter was transferred to the Court of Appeals for the Second Circuit which, as noted above, denied Garcia's request for leave to file a second or successive habeas corpus petition and remanded the matter to the district court for a determination on the merits. The case was reopened in the district court in June 2002. Setting aside the 1999 "motion" for an extension of time to file (the "initial" petition), Garcia's application for habeas corpus relief was filed, at the earliest, on September 25, 2001, more than four years after the expiration of the limitation period.
Neither Garcia's request for an order vacating the 1995 decision of the Appellate Division on the ground of ineffective assistance of appellate counsel, nor his C.P.L. § 440.10 motion to vacate the judgment of conviction, tolled the one-year limitations period because both motions were filed after the limitations period had expired.
Garcia nevertheless challenges the respondents' motion to dismiss on the ground that he can overcome the procedural bar to having his habeas corpus petition considered on the merits, by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice. The respondents contend that petitioner cannot meet the relevant standard for such a violation.
A petitioner who has committed a procedural default, in this case, the procedural bar of a statute of limitations, may be excused from the default and obtain federal review of his constitutional claims by demonstrating cause for the default and actual prejudice as a result of the alleged violation of federal law, or by demonstrating that failure to consider the claims will result in a fundamental miscarriage of justice.See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991). The Supreme Court has tied the miscarriage of justice exception to a petitioner's actual innocence. See Schlup v. Delo. 513 U.S. 298, 321, 115 S.Ct. 851, 864 (1995). Thus, in a habeas corpus petition challenging a conviction, the petitioner seeking to demonstrate a miscarriage of justice must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 327, 867 (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649-2650): see also Alexander v. Keane. 991 F. Supp. 329, 338-39 (S.D.N.Y. 1998).
The Supreme Court has distinguished between a habeas corpus petition challenging a conviction and a habeas corpus petition challenging a capital sentence. In the latter case, a different standard for demonstrating a miscarriage of justice applies: a petitioner must show by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty. See Schlup, 513 U.S. at 323-27, 115 S.Ct. at 865-67 (citing Sawyer v. Whitley. 505 U.S. 333, 336, 112 S.Ct. 2514, 2517 [1992]); Alexander, 991 F. Supp. at 339.
"Actual innocence means factual innocence, not mere legal insufficiency." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (quoting Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1607) (internal quotation marks omitted). In order to demonstrate actual innocence, "a petitioner 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.'" Lucidore v. New York State Division of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup, 513 U.S at 299, 327-28, 115 S.Ct. at 853, 867).
In this case, Garcia claims that he has new reliable evidence that was not presented at trial establishing that he could not have committed the murder for which he was convicted. Garcia states that his new evidence consists of documents proving that he was incarcerated in the Dominican Republic on the day before the murder took place and could not have returned to New York in time to commit that offense, affidavits from five additional alibi witnesses who did not appear at trial and proof that the testimony at trial of the identifying witness was unreliable because the witness was under the influence of psychotropic medications at the time.
The documents submitted by the petitioner include: (1) correspondence between employees of the Bronx County Office of the District Attorney and various individuals contacted or subpoenaed by that office in connection with a pre-trial investigation of this case concerning petitioner's activities at the time of the murder for which he was convicted; (2) statements of representatives of the Dominican Republic's international airport, and of members of the country's national police, attesting to the detention and incarceration of petitioner, on charges of attempting to leave the country illegally, on July 15, 1991, the day before the murder, and his release on bail at 2:00 p.m. on July 16, 1991; (3) information concerning airline flights destined for the United States that departed from the Dominican Republic's international airport after 2:00 p.m. on July 16, 1991; (4) affidavits from five individuals stating that each saw and spoke to Garcia on the night of July 16, 1991, and that he was then in the Dominican Republic; and (5) selected entries from a catalogue of prescription drugs.
The documents allegedly showing that Garcia was in the Dominican Republic at the time of the murder for which he was convicted are submitted as new evidence in support of Garcia's alibi defense. However, at a colloquy held during the trial between the trial judge and attorneys for the parties, the admissibility as evidence relevant to petitioner's alibi defense of some or all of these documents was discussed. Therefore, the documents can hardly be said to constitute new evidence. Moreover, Garcia's alibi defense was presented in part to the jury during testimony by the murder victim's sister to the effect that she had spoken to Garcia by telephone on the night of the murder and that he was in Santo Domingo, Dominican Republic, at the time of their conversation. Furthermore, even if the documents could be said to constitute new evidence, they fail to establish Garcia's actual innocence. The murder for which Garcia was convicted took place at 11:45 p.m. on July 16, 1991. The documents show that more than one flight destined for the New York area left the Dominican Republic after Garcia's release from custody at 2:00 p.m. on that day. Thus, the documents show that Garcia could have returned to New York in time to commit the offense for which he was convicted. Consequently, the documents submitted by Garcia in connection with his alibi defense do not constitute new evidence and are not sufficient to establish his claim of actual innocence.
Nor do the documents containing information concerning prescription drugs constitute new evidence. These documents are copies of selected pages of a previously published "guide" to prescription drugs the contents of which presumably were available at the time of trial. Moreover, the matter of the reliability of the identifying witness was presented to the jury during testimony by that witness concerning her history of mental illness and her use of prescription medications in treating that illness. As noted by the Appellate Division in Garcia's direct appeal, the jury considered the matter of the identifying witness' credibility and "reasonably accepted" her testimony:
[t]he witness testified that the prescribed medicine she had taken several hours prior to [the] viewing [of the crime] did not diminish her alertness and the jury reasonably accepted that testimony in light of the fact that, despite a substantially increased dosage of prescribed medication that continued through trial, the witness subsequently made independent identifications of the defendants through photo and lineup procedures, and repeated the circumstances of her observations throughout extensive cross-examination.Garcia, 219 A.D.2d at 542-543, 632 N.Y.S.2d at 64.
As to the affidavits of the additional alibi witnesses, while they may be regarded as new evidence in the sense that the testimony of these witnesses was not presented to the jury, at most these statements serve to bolster the testimony of the victim's sister that she spoke to Garcia while he was in the Dominican Republic on the night of the murder. As such, these documents do not constitute the kind of evidence that supports a claim of actual innocence. See Schlup, 513 U.S. at 324, 115 S.Ct. at 865 ("To be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.").
Under the circumstances, the Court finds that petitioner has not shown that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Therefore, since petitioner has not met his burden of demonstrating that he is actually innocent, he has failed to make an adequate showing to satisfy the fundamental miscarriage of justice exception. Equitable Tolling
The Second Circuit has held that AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar so that the courts may equitably toll the period." Smith, 208 F.3d at 17. The doctrine of equitable tolling permits courts to extend a statute of limitations beyond the time of expiration to prevent inequity. See Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (citing Johnson v. Nyack Hospital, 86 F.3d 8, 12 [2d Cir. 1996]). However, equitable tolling applies only in "rare and exceptional" circumstances. Smith, 208 F.3d at 17. To merit equitable tolling of the one-year limitations period, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." Id. In addition, a petitioner must show that he acted with "reasonable diligence" during the period he seeks to toll. Id.
In his 1999 petition for a writ of habeas corpus, petitioner stated that the delay in filing the petition timely was due to his difficulty in acquiring legal assistance and his inability to understand or speak the English language. However, petitioner has not identified reasons for the delay in filing his petition that are sufficiently "rare" or "exceptional" to toll the applicable limitation period. See, e.g.,Martinez v. Kuhlmann, No. 99 Civ. 1094, 2000 WL 622626, at *3 (S.D.N.Y. May 15, 2000)("Problems such as difficulty with the English language and insufficience of legal assistance are not 'extraordinary' such that they warrant equitable tolling of the AEDPA limitation period."). Accordingly, equitable tolling is not appropriate in this case.
Petitioner did not raise the issue of equitable tolling in his papers submitted in opposition to the instant motion to dismiss; the Court addresses the issue here for the sake of completeness.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the respondents' motion to dismiss the petition be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann. 9 F.3d 1049,1054 (2d Cir. 1993); Frank v. Johnson. 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd.. 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson. 714 F.2d 234, 237-38 (2d Cir. 1983).