Opinion
02 Civ. 5880 (WHP) (AJP)
November 12, 2002
REPORT AND RECOMMENDATION
Petitioner Reginald Martin, pro se, commenced this habeas petition in November or December 2001, from his October 1, 1994 conviction and sentence to ten to twenty years imprisonment for criminal sale and possession of controlled substances. (Dkt. No. 1: Pet. ¶¶ 1-4.) His petition asserts four habeas claims. (Pet. ¶ 12(A)-(D).)
For the reasons set forth below, the petition should be dismissed as time barred by the AEDPA's one year limitations period.
DISCUSSION
The First Department affirmed Martin's conviction on September 22, 1998, and the New York Court of Appeals denied leave to appeal on April 6, 1999. People v. Martin, 253 A.D.2d 681, 680 N.Y.S.2d 78 (1st Dep't 1998), appeal denied, 93 N.Y.2d 900, 689 N.Y.S.2d 712 (1999).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:
(d)(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;
. . . .
(2) 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.28 U.S.C. § 2244(d)(1)-(2).
The AEDPA one-year limitations period started to run here on July 5, 1999 — ninety days after the New York Court of Appeals' April 6, 1999 denial of Martin's leave to appeal — when the time to file a petition for certiorari expired. Williams v. Artuz, 237 F.3d 147, 150-51 n. 1 (2d Cir.), cert. denied, 122 S.Ct. 279 (2001).
Accord, e.g., Pratt v. Greiner, No. 01-2460, 2002 WL 31285784 at *5 n. 1 (2d Cir. Oct. 4, 2002); Brown v. Artuz, 283 F.3d 492, 497 n. 1 (2d Cir. 2002); Matias v. Artuz, 8 Fed. Appx. 9, 10 (2d Cir.), cert. denied, 122 S.Ct. 93 (2001); Wheeler v. Artuz, 6 Fed. Appx. 57, 57 (2d Cir. 2001); King v. Greiner, 02 Civ. 5810, 2002 WL 31453976 at *1 (S.D.N.Y. Nov. 5, 2002) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2002 WL 1424584 at *3 (S.D.N.Y. July 1, 2002) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Bonilla v. Ricks, 00 Civ. 79225, 2001 WL 253605 at *2 (S.D.N.Y. Mar. 14, 2001) (Peck, M.J.); Shaw v. Mazzuca, 00 Civ. 6941, 2001 WL 66404 at *2 (S.D.N.Y. Jan. 26, 2001) (Peck, M.J.); 28 U.S.C. § 2244(d)(1)(A).
The Second Circuit has held that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000). "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases).
See also, e.g., Bethea v. Girdich, 293 F.3d 577, 578-79 (2d Cir. 2002) ("state-court applications for collateral relief do not `restart' the AEDPA limitations period") (citing Smith v. McGinnis, 208 F.3d at 17); Smaldone v. Senkowski, 273 F.3d 133, 138-39 (2d Cir. 2001) ("[T]he attorney's mistaken belief that the tolling period reset after each state collateral appeal does not constitute the `extraordinary' circumstances warranting equitable tolling."), cert. denied, 122 S.Ct. 1606 (2002); Steadman v. Senkowski, No. 99-2449, 234 F.3d 1263 (table), 2000 WL 1591268 at *1 (2d Cir. Oct. 23, 2000) ("the tolling provision of 28 U.S.C. § 2244(d)(2) excludes time while a state relief application is pending but does not reset the date on which the limitations period begins"); Jimenez v. United States, 02 Civ. 1187, 2002 WL 1870060 at *3 (S.D.N.Y. Aug. 14, 2002); Gomez v. Duncan, 2002 WL 1424584 at *3; Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *9 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.); Stokes v. Miller, 00 Civ. 0806, 2000 WL 640697 at *2 (S.D.N.Y. May 18, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1121364 (S.D.N.Y. July 21, 2000) (Berman, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *6 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Mojica v. David, 99 Civ. 1990, 2000 WL 631385 at *2 (S.D.N.Y. May 16, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 991391 (S.D.N.Y. July 19, 2000) (Cote, D.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *3 (S.D.N.Y. Mar. 9, 2000) (Sprizzo, D.J. Peck, M.J.); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Lucidore v. New York State Div. of Parole, 99 Civ. 2936, 1999 WL 566362 at *4 (S.D.N.Y. Aug. 3, 1999) (Peck, M.J.), aff'd, 209 F.3d 107 (2d Cir.), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *3 (S.D.N.Y. July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. Apr. 29, 1999) (Peck, M.J.), report rec. adopted, 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.).
Accord, e.g., Bethea v. Girdich, 293 F.3d at 578-79; Smith v. McGinnis, 208 F.3d at 17; Gomez v. Duncan, 2002 WL 1424584 at *3; Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 2000 WL 1663437 at *9; Stokes v. Miller, 2000 WL 640697 at *2; Foreman v. Garvin, 2000 WL 631397 at *6; Mojica v. David, 2000 WL 631385 at *2; Lucidore v. New York State Div. of Parole, 1999 WL 566362 at *4.
As noted above, Martin's conviction became final and the AEDPA limitations period started on July 5, 1999. The AEDPA limitations period ran until tolled by Martin's C.P.L. § 440 motion, which he filed on May 16, 2000. (Dkt. No. 5: Martin Aff. ¶ 10.) Thus, from July 5, 1999 to May 16, 2000, 316 days had run. The C.P.L. § 440 motion tolled the AEDPA limitations period until September 8, 2000, when the trial court denied the motion (Martin Aff. ¶ 11), and that toll continued through March 5, 2001 when the First Department denied leave to appeal (Martin Aff. ¶ 12). Carey v. Saffold, 122 S.Ct. 2134, 2138 (2002) ("[A]n application is pending [for AEDPA tolling purposes] as long as the ordinary state collateral review process is `in continuance' — i.e., `until the completion of' that process."); accord, e.g., Gomez v. Duncan, 2002 WL 1424584 at *3.
Martin claims that he did not know of the First Department's decision until May 1, 2001. (Martin Aff. ¶¶ 13-14.) Because the Appellate Division's denial of leave to appeal from denial of a C.P.L. § 440 motion is not further reviewable by the New York Court of Appeals, Notice of Entry of the First Department's Order was not required. See, e.g., Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.) (AEDPA limitations period began running again upon the Appellate Division's denial of leave to appeal from denial of § 440 motion, not from date on which petitioner received notice of the Appellate Division's order, since further appellate review of that order was unavailable.), cert. denied, 531 U.S. 1018, 121 S.Ct. 581 (2000); Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999) ("[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 procedures."), aff'd, 531 U.S. 4, 121 S.Ct. 361 (2000); Ramos v. Walker, 88 F. Supp.2d 233, 235-36 n. 9 (S.D.N.Y. 2000) ("Here . . . petitioner had no appellate remedies available to him under New York law with respect to his Section 440.10 motion once leave to appeal was denied. . . . [A]ny failure to serve petitioner with a copy of the order denying his motion for leave to appeal to the Appellate Division was immaterial."); see also, e.g., Forman v. Artuz, 211 F. Supp.2d 415, 425 n. 4 (S.D.N.Y. 2000) (Berman, D.J. Peck, M.J.) (Because petitioner "would be entitled to a toll from his state habeas petition only until the Second Department's decision[,]" petitioner's claim "that he did not receive notice of entry of the Second Department's order . . . [was] of no effect."). Nevertheless, because the petition is time barred even if the toll continued until Martin became aware of the First Department's decision on May 1, 2001, the Court gives him the benefit of the doubt and uses the May 1, 2001 date in the calculations below.
The AEDPA limitations period thus started to run again on May 1, 2001 (really, on March 5, 2001) and ran until no sooner than November 1, 2001, the date Martin signed his federal habeas petition. (Dkt. No. 2: Pet., last page.) Between May 1, 2001 and November 1, 2001, 184 days ran. When added to the 316 days that had run before Martin's C.P.L. § 440 toll, the petition clearly is time barred.
The envelope containing the petition is postmarked by the prison on December 24, 2001. The petition was received by the Court's Pro Se Office on January 3, 2002. (Pet., 1st page.) The Court will use the November 1, 2001 date as the date of Martin's petition, thus giving him every benefit of the doubt.
Martin contends he was in SHU from October 3, 2001 to January 9, 2002. (Martin Aff. ¶ 21.) That obviously did not prevent him from filing his petition, since he did file it in that time period. In any event, even if the period from October 3, 2001 to the November 1, 2001 date on Martin's petition were considered to be equitably tolled, the petition still would be time barred.
The Court notes that Chief Judge Mukasey gave Martin notice of the possibility his petition would be dismissed as time barred (Dkt. No. 4:7/25/02 Order), to which Martin responded with additional information about his C.P.L. § 440 petition. (Dkt. No. 5: Martin Aff.). Thus, since Martin was informed of this issue and given an opportunity to respond, there is no impediment to issuance of this Report and Recommendation without further notice to Martin.
CONCLUSION
For the reasons set forth above, the Court should dismiss Martin's petition as time barred, and should not issue a certificate of appealability.