Opinion
00 Civ. 6941 (DAB) (AJP)
January 26, 2001
REPORT AND RECOMMENDATION
Petitioner Joseph Shaw seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his June 4, 1993 conviction in State Supreme Court, Bronx County, of rape and sodomy, and sentence to six to twelve years imprisonment. (Dkt. No. 1: Petition ¶¶ 1-4.) Shaw's federal habeas petition is dated August 7, 2000 and was received by the Court's Pro Se Office on August 10, 2000. (Pet. at 2, 7.) The Petition raises various claims, including ineffective assistance of trial counsel, insufficient evidence, judicial comments that prejudiced him, and newly discovered evidence. (Pet. ¶ 12.)
For the reasons set forth below, I recommend that Shaw's petition be dismissed as barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). PROCEDURAL BACKGROUND
Along with his petition, Shaw applied for appointment of counsel. (Dkt. No. 2:8/7/00 Application for Appointment of Counsel.) Because the Petition is so clearly time-barred for the reasons discussed below, and the Court is recommending dismissal of the Petition, there is no need or reason to appoint counsel for Shaw.
As noted above, on June 4, 1993, Shaw was convicted in Supreme Court, Bronx County, after a non-jury trial of rape and sodomy and sentenced to six to twelve years imprisonment. (Pet. ¶¶ 1-7; see also Affidavit of Assistant District Attorney Nancy Killian, dated Jan. 18, 2001, ¶ 4.)
On November 28, 1995, the First Department affirmed Shaw's conviction. (See Killian Aff. ¶ 9 Ex. 5.) People v. Shaw, 221 A.D.2d 265, 635 N.Y.S.2d 465 (1st Dep't 1995). The New York Court of Appeals denied leave to appeal on February 20, 1996. (See Killian Aff. ¶ 9.) People v. Shaw, 87 N.Y.2d 977, 642 N.Y.S.2d 206 (1996).
On or about December 16, 1996, Shaw, through counsel, moved to vacate his conviction pursuant to CPL § 440.10. (Killian Aff. ¶ 10 Ex. 6; see also Pet. ¶ 11(a).) After a hearing, the trial court denied the motion on May 11, 1998, entered on May 14, 1998. (Killian Aff. ¶ 11 Ex. 8; see also Pet. ¶ 11(a).) Shaw did not appeal that decision to the First Department. (Pet. ¶ 11(c); Killian Aff. ¶ 12.) According to Shaw, his attorney advised him by letter dated February 5, 1999 that an appeal of the CPL § 440.10 decision would not be in Shaw's best interest, but rather that "our best shot is, if you are not paroled is another 440.10 motion." (Pet. Ex.: 2/5/99 Letter to Shaw from his then attorney, Scott Brettschneider; see also Shaw 10/2/00 Aff. at 1-2.) According to Shaw, that lawyer "is no longer retained." (Shaw 10/2/00 Aff. at 2.)
There is no evidence in the record before this Court of any further state court proceedings.
Shaw's Present Federal Habeas Petition
As noted above, Shaw's present federal habeas petition is dated August 7, 2000 and was received by the Court's Pro Se Office on August 10, 2000. (Pet. at 2, 7.)
On September 15, 2000, Chief Judge Mukasey ordered Shaw to show cause, by affidavit, as to why the Petition was not time-barred under the AEDPA. (Dkt. No. 3:9/15/00 Order.)
In response, all Shaw did was refer to the February 5, 1999 letter that he received from his lawyer advising him to consider filing a second CPL 440.10 motion. (Dkt. No. 4: Shaw 10/2/00 Aff., attaching 2/5/99 attorney letter, described above.)
By Order dated December 19, 2000, Judge Batts directed the State to respond to the Petition "addressing only the issue of timeliness." (Dkt. No. 7:12/19/00 Order at 2.) The State did so on or about January 18, 2001.
ANALYSIS
SHAW'S PETITION IS BARRED BY THE AEDPA'S STATUTE OF LIMITATIONS
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The 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 on May 20, 1996, ninety days after the New York Court of Appeals denied Shaw leave to appeal on February 20, 1996. Williams v. Artuz, No. 99-2195, 2001 WL 6708 at *3 n. 1 (2d Cir. Jan. 3, 2001).
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, 121 S.Ct. 104 (2000); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *9 (S.D.N.Y. Nov. 3, 2000) (Peck, M.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 by 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 by 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. March 9, 2000) (Sprizzo, D.J. Peck, M.J.). "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); accord, e.g., Smith v. McGinnis, 208 F.3d at 17; 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.
See also, e.g., Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); 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. April 29, 1999) (Peck, M.J.), rep. rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.).
Shaw's CPL § 440.10 motion tolled the AEDPA period during its pendency, i.e., from December 16, 1996 until May 14, 1998.
The Court sees no reason to equitably toll the AEDPA limitations period for the time between the May 14, 1998 denial of Shaw's CPL § 440.10 motion and his February 8, 1999 receipt of the lawyer letter on which he relies, but even if such a toll were applied, the Petition still would be untimely.
Indeed, even ignoring the time that the AEDPA limitations period ran before February 8, 1999, Shaw did not file his Petition until August 2000, approximately eighteen months after the February 1999 lawyer letter.
There is no doubt that Shaw's Petition in untimely under the AEDPA.
CONCLUSION
For the reasons set forth above, the Court should dismiss Shaw's Petition as barred by the AEDPA's one-year statute of limitations. Since Shaw has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability should not issue. 28 U.S.C. § 2253.
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 the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).