Opinion
00 Civ. 8784 (LAK)
March 21, 2002
ORDER
Following the entry of the Court's order, dated March 18, 2002, which adopted the report and recommendation and dismissed the petition, the Court received objections. The Court therefore sua sponte vacates that order and considers the matter anew.
Petitioner was convicted in December 1990 of two counts of burglary in the first degree and resentenced as a persistent violent felony offender to concurrent indeterminate prison terms of twelve years to life. The conviction was affirmed and leave to appeal denied. People v. Velasquez, 187 A.D.2d 277, 589 N.Y.S.2d 435 (1st Dept. 1992), leave to appeal denied, 81 N.Y.2d 848, 595 N.Y.S.2d 748 (1993) (table). A subsequent petition for a writ of error coram nobis was denied by the First Department in 1995. People v. Velasquez, 218 A.D.2d 929, 630 N.Y.S.2d 928 (1st Dept. 1995).
On January 28, 1999, petitioner moved, pursuant to N.Y. Crim. Proc. L. § 440.10, to vacate the judgment of conviction. The motion was denied on September 20, 1999. His application for leave to appeal to the Appellate Division was denied on March 7, 2000 and a subsequent application for leave to appeal to the New York Court of Appeals was dismissed on June 20, 2000.
Petitioner filed this petitioner for a writ of habeas corpus on November 17, 2000. On August 13, 2001, the respondent moved to dismiss the petitioner as time-barred. By report and recommendation, dated February 27, 2002 (the "RR"), Magistrate Judge Ronald L. Ellis recommends that the motion be granted. Petitioner has objected to the RR.
1. Absent equitable tolling, the petition patently is untimely. As petitioner's
direct review was concluded well before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), he had one year from April 24, 1996 within which to file a timely petition. Ross v. Artuz, 150 F.3d 97, 102 (2d Cir. 1998). Section 2244(d)(2) of the Judicial Code is of no assistance to petitioner, despite the fact that petitioner had an application for collateral relief pending from January 28, 1999 until March 7, 2000, because the limitations period had expired almost two full years prior to the filing of the CPL § 440.10 motion.
The time consumed by the application for leave to the Court of Appeals from the Appellate Division's denial of leave to appeal from the Supreme Court's denial of his CPL § 440.10 motion is immaterial because there is no basis for Court of Appeals review of such an Appellate Division decision. E.g., Seals v. Greiner, No. 00 Civ. 5667(LAK), 2000 WL 1635702 (S.D.N.Y. Nov. 1, 2000).
2. The Second Circuit has held that Ross's one year grace period is subject to equitable tolling. Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000). In order to obtain the benefit of the doctrine, however, the petitioner "must show that extraordinary circumstances prevented him from filing his petition on time [and] must have acted with reasonable diligence throughout the period he seeks to toll." Id.
Petitioner claims that he was prevented by his age and medical condition — HIV/AIDS, hepatitis-C and syphilis, as well as acute memory loss and chronic headaches that "leave the Petitioner in a Stupor State" — from filing a timely petition. The Court assumes arguendo, as did Judge Ellis, that a sufficiently compelling showing of physical or mental inability to make a timely filing would toll the limitations period. See, e.g., Rhodes v. Senkowski, 82 F. Supp.2d 160, 173 (S.D.N.Y. 2000); but cf. Porter v. Nussle, 122 S.Ct. 983 (2002). But the RR concluded that the evidence submitted by petitioner was insufficient to justify equitable tolling because it demonstrated that petitioner had been hospitalized for less than fifty days during the three year period between April 24, 1997 and the filing of the petition and for less than eighty days during the five year period between his conviction having become final and April 24, 1997. Petitioner challenges this conclusion.
The reasons assigned by the Magistrate Judge, not to mention petitioner's pursuant of collateral review on the state courts while he claims he was disabled by illness, suggest that it is quite unlikely that petitioner will be able to make out a persuasive case for equitable tolling despite the undeniably serious nature of the medical conditions from which he suffers. The difficulty, however, is that the issue arises on a motion, so the Court is obliged to accept as true all of petitioner's allegations and to draw in his favor all inferences reasonably available. Moreover, the Magistrate Judge did not have the benefit of the affirmation submitted by petitioner in support of his objections to the RR, which squarely alleges that petitioner was prevented from acting "[s]ince 1996 up until the present . . ."
In view of petitioner's pro se status, the Court considers this affirmation notwithstanding the failure to set forth everything contained in it before the Magistrate Judge.
In these circumstances, the Court cannot say that the respondent has established the absence of a genuine issue of fact material to the determination whether petitioner's condition was so impaired as to warrant equitable tolling of the AEDPA limitations period. In consequence, respondent's motion to dismiss the petition as time-barred is denied without prejudice to renewal before the Magistrate Judge. In the event the motion is renewed, the Magistrate Judge shall hold an evidentiary hearing and making findings of fact and conclusions of law on the equitable tolling issue.
SO ORDERED.