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finding that "the applicability of the Federal Rules of Civil Procedure is discretionary in the habeas context"
Summary of this case from Wong v. AshcroftOpinion
Civil Action No. 97-CV-1295 (DGT) (MDG)
October 10, 2003
ORDER
Petitioner Eddie Subervi ("Subervi") was convicted after a jury trial of one count of assault in the first degree, and one count of criminal possession of a weapon in the second degree. He was sentenced as a persistent felony offender to two indeterminate terms of imprisonment of fifteen years to life.
On March 25, 1997 — less than one month before the running of the statute of limitations — Subervi, represented by an attorney who had not served as trial counsel, filed a petition for a writ ofhabeas corpus in this court. The petition raised the following six claims: 1) the trial court improperly admitted evidence of petitioner's prior uncharged crimes and failed to instruct the jury on the limited purpose for which it was admitted; 2) the trial court erred in permitting the complainant to display his scars to the jury; 3) ineffective assistance of trial counsel for failing to conduct an adequate pre-trial investigation; 4) ineffective assistance of trial counsel for failing to object to a number of erroneous rulings by the trial court and acts of prosecutorial misconduct; 5) ineffective assistance of appellate counsel for failing to raise meritorious arguments and to alert the appeals courts of the federal constitutional nature of the claims he raised; and 6) the sentencing court relied on erroneous information in imposing sentence.
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which, inter alia, established a one-year statute of limitations for the filing of habeas petitions. See 28 U.S.C. § 2244(d)(1). Petitioners, such as Subervi, whose convictions became final prior to the enactment of AEDPA, were afforded until April 24, 1997 — one year from AEDPA's effective date — to file a timely petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
Before a federal court can entertain claims on habeas review, the petitioner must first exhaust available remedies in the state court system. See 28 U.S.C. § 2254(b). Prior to filing his initial habeas petition, Subervi had initiated two post-verdict proceedings in state court — a direct appeal to the Appellate Division of the New York state Supreme Court, and a pro se motion to vacate the judge of conviction pursuant to N.Y. Crim. Proc. Law §§ 440.10, 440.20. Through these post-conviction proceedings, Subervi had exhausted state court remedies as to some, but not all, of the claims raised in his initial habeas petition. As a result of the one-year statute of limitations enacted under AEDPA, district courts presented with such "mixed" petitions faced a new problem: if the district court were to dismiss the entire mixed petition without prejudice to allow for exhaustion, as the Supreme Court's pre-AEDPA case law suggested, see Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982), the statute of limitations might run "during the time taken to initiate state court exhaustion and to return to federal court after exhaustion is completed." Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001), cert. den. sub nom. Fischer v. Zarvela, 534 U.S. 1015, 122 S.Ct. 506 (2001). This risk is particularly acute where, as here, the initial petition is filed close to the end of the one-year statute of limitations. In light of these concerns, this court granted the application of petitioner's counsel that the petition be held in abeyance pending the exhaustion of state remedies as to all of petitioner's claims.
On direct appeal, Subervi's conviction was unanimously affirmed.See People v. Subervi, 178 A.D.2d 669, 578 N.Y.S.2d 227 (2d Dep't 1991), and his application for leave to appeal this ruling to the Court of Appeals was denied. See People v. Subervi, 79 N.Y.2d 1054, 584 N.Y.S.2d 1022, 596 N.E.2d 420 (1992). Subervi's pro se motion to vacate his conviction was dismissed on June 12, 1992, and his application for leave to appeal was denied by the Appellate Division.
The time during which a properly filed application post-conviction relief is pending in state court is exempted from the one-year statute of limitations. See 28 U.S.C. § 2254(d)(2).
On October 21, 1998, Subervi filed a second motion to vacate his conviction and set aside the sentence, which was dismissed as procedurally barred on February 23, 1999. The Appellate Division denied leave to appeal on July 1, 1999. On November 29, 1999, petitioner filed apro se writ of error coram nobis, which was dismissed by the Appellate Division on February 28, 2000.
On October 12, 1999, this court granted the application of petitioner's attorney to withdraw as counsel and directed petitioner to file an amended petition by December 15, 1999. On December 3, 1999, petitioner filed an amended habeas petition, which raised the following claims: 1) the trial court erred in denying petitioner's application for appointment of new counsel; 2) ineffective assistance of trial counsel for failing to investigate and pursue a misidentification defense; 3) ineffective assistance of trial counsel for failing to move for dismissal at the end of the government's case and failing to move for a directed verdict at the end of the presentation of the evidence; 4) ineffective assistance of trial counsel for failing to object to the prosecutor's improper remarks in summation; 5) ineffective assistance of counsel for failing to request a missing witness charge; 6) ineffective assistance of appellate counsel for failing to raise the trial court's error in denying petitioner's application for appointment of new counsel. In his reply papers, Subervi raised an additional claim: 7) ineffective assistance of counsel for failing to object to the trial judge's improper remarks and erroneous rulings.
Subervi's amended petition was referred to United States Magistrate Judge Marilyn D. Go for a Report and Recommendation (the "RR"). In her RR, dated May 19, 2003, Magistrate Judge Go recommended that the petition be dismissed. Specifically, she found that claims 1 through 5 and 7 — though exhausted — were procedurally barred from federalhabeas review, and that claim 6 (alleging ineffective assistance of appellate counsel) should be dismissed on the merits.
In a letter, dated June 11, 2003, respondent objected to the R R,; arguing that the entire petition should instead be dismissed as time barred. Respondent raises three principal objections:first, that the initial habeas petition was a "sham," submitted solely to circumvent the statute of limitations, and should therefore have been dismissed when filed; second, that after his petition was stayed, Subervi engaged in "excessive delay" in pursuing state court remedies; and third, that the claims asserted in petitioner's amended petition, which was filed after the running of the statute of limitations, should not be considered timely because they do not "relate back" to the claims raised in the initial petition. In connection with these arguments, respondent asserts that Magistrate Judge Go erroneously applied the Second Circuit's decision in Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), a decision, decided after the filing of Subervi's amended petition, which set forth procedures for district court's faced with "mixed" petitions.
This court has not received any objections from petitioner.
Respondent argues that Subervi's initial habeas petition was created "solely to circumvent the purposes of the statute of limitations," and was, therefore, not a "legitimate document." Respondent Objections at 8. In advancing this argument, respondent notes that petitioner's counsel acknowledged that at the time of the initial filing he had not yet fully reviewed the transcripts of the case, and, therefore, had not yet determined precisely what remedies he would pursue in state court. According to respondent, the petition was "self-evidently incomplete and filed in bad faith." Id. Notwithstanding respondent's assertion, the fact that Subervi's initial petition was in some respects incomplete when filed is hardly indicative of counsel's bad faith or of the illegitimacy of the initial petition. To the contrary, it was entirely legitimate for counsel, facing an impending statute of limitations, in a case involving a lengthy trial record with which he was not fully familiar, to file a petition within the limitations period, with the knowledge that the petition would have be amended at a later date. The situation is analogous to a civil action outside the habeas context where a plaintiff files a complaint to "beat the clock," relying on the liberal pleading standards of the Federal Rules of Civil Procedure to amend the complaint after the facts of the case are better developed. Thus, Respondent's argument that Subervi's initial petition "did not serve to satisfy the statute of limitations" is without merit. Id.
Respondent further argues that, after his initial petition was held in abeyance, Subervi engaged in excessive delay in pursuing state court remedies: the second motion to vacate the conviction and set aside the sentence was filed in October 1998 — a year and a half after the filing of the initial petition; and, petitioner waited an additional six months, following the final resolution of the motion to vacate, to file the coram nobis motion. Respondent points out that these time periods "wildly exceed" the time limitations the Second Circuit established inZarvela. Id. at 11; see Zarvela, 254 F.3d at 381 (concluding that when staying a mixed petition, a district court should condition the stay on "the prisoner's pursuing state court remedies within a brief interval, normally 30 days."). However, Zarvela was not decided until two-yearsafter Subervi's amended habeas petition was filed. The initial petition was filed in the wake of the significant changes in habeas procedure brought about by AEDPA, when the state of the law was uncertain. This court did not impose any time frame for the exhaustion of state remedies as a condition of staying the petition — and, at that time, no Supreme Court or Second Circuit precedent mandated the imposition of such conditions. As the RR points out, "it would be unfair now to vacate the stay nunc pro tunc or find the claims in the amended petition tardy in light of the court's prior orders." RR at 17-18. Moreover, inasmuch as the stay was granted before the Second Circuit decidedZarvela, it would seem that the procedures set forth therein do not apply here. See RR at 17 n. 6 (noting that the Second Circuit has "declined to address" whether Zarvela applies retroactively). Indeed, respondent argues that the decision should not be retroactively applied.See Respondent's Objections at 10 (noting, inter alia, that the decision "imposes obligations on district courts of which they necessarily would have been unaware"). Under the circumstances of this case, Subervi's delay in exhausting administrative remedies does not render his amended petition untimely.
Respondent challenges Judge Go's reliance on Zarvela on three grounds: 1) that the opinion should not be applied retroactively; 2) thatZarvela was not intended to apply to entirely exhausted petitions; and 3) assuming Zarvela does apply, Magistrate Go applied it inconsistently in that she failed to apply the time restrictions on the exhaustion of state remedies imposed by the Second Circuit. As an initial matter, it does not appear that Magistrate Go "relied" on Zarvela. Indeed, like respondent, she acknowledged that the Second Circuit had not ruled on its retroactive applicability. Instead, in response to respondent's argument that Subervi's initial petition should have been dismissed, the RR simply notes that this court's general approach — i.e., staying a mixed petition, rather than dismissing it outright — has since been endorsed by the Second Circuit. Because the RR did not in fact rely on Zarvela, respondent's arguments distinguishing that case or suggesting that it was misapplied are unavailing. Moreover, respondent's suggestion that Subervi's petition was "entirely exhausted," see Repondent's Objections at 10, is plainly erroneous; it is clear that Subervi's initial habeas petition was a mixed petition, involving both exhausted and unexhausted claims.
Finally, respondent argues that because Subervi's amended petition was filed after the running of the statute of limitations, the claims asserted are time barred unless they "relate back," under Rule 15(c) of the Federal Rules of Civil Procedure, to the claims asserted in the initial petition. Magistrate Judge Go did not reach the relation-back issue as to the first six claims in the amended petition on the grounds that "the limitations period was tolled and did not expire until the amended petition was filed." RR at 18.
Judge Go found that claim 7, alleging ineffective assistance of trial counsel for failing to object to the trial judge's improper remarks and erroneous rulings, did relate back to the original petition. It appears that respondent does not contest this finding. See Respondent's Objections at 7.
Although the Second Circuit has applied Rule 15(c) to amended habeas petitions, see Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 816-17 (2d Cir. 2000), a stringent interpretation of the relation-back doctrine is unwarranted in this case. As this court has previously noted in Rodney v. Miller, 2003 WL 22282362, at *1 (E.D.N.Y. Sept. 18, 2003), the applicability of the Federal Rules of Civil Procedure is discretionary in the habeas context. See Fed.R. Governing § 2254 Cases in the U.S. Dist. Cts. 11 ("The Federal Rules of Civil Procedure, to the extent they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.") (emphasis added). Because this case arose out of a criminal prosecution, respondent — unlike a party in a typical civil action — is in no position to claim financial or other reliance on the running of the statute of limitations. Moreover, respondent has not been materially prejudiced in opposing the petition, because all but one of the grounds raised in Subervi's amended petition are based on evidence contained in the trial and/or appellate records, which, of course, have been available to respondent. For these reasons, this court is well within its discretion granted by Rule 11 of the § 2254 Rules in permitting Subervi to pursue claims in his amended petition that might not "relate back" to his initial petition under a literal interpretation of Rule 15(c) of the Federal Rules of Civil Procedure.
Claim 2 in the amended petition might implicate matters outside the record insofar as it concerns trial counsel's failure to "investigate" a misidentification defense. However, respondent has not established any prejudice in defending this claim. Indeed, the initial petition asserted that trial counsel failed to conduct an adequate pre-trial investigation, thus putting respondent on notice of a potential claim concerning this issue.
With these observations, and after an independent review of the record, the court hereby adopts Magistrate Judge Go's thorough RR. Petitioner's petition for a writ of habeas corpus is, therefore, denied. Furthermore, no certificate of appealability shall issue, as petitioner has not made a substantial showing of the denial of a constitutional right.
The clerk of the court is directed to close this case.