Opinion
02-CV-6305 (JBW), 03-MISC-0066 (JBW)
October 10, 2003
MEMORANDUM, JUDGMENT ORDER
Petitioner is presently in the custody of the Bureau of Immigration and Customs Enforcement ("BICE"). He has initiated numerous legal proceedings in an effort to avoid deportation, including at least three habeas corpus petitions brought pursuant to section 2241 of Title 28 of the United States Code, The instant proceeding is a challenge to his May 14, 1996 conviction in New York State for possession of a forged instrument.
His initial application was styled a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody," The district court judge previously assigned to the instant case observed that the application appeared to be untimely and ordered petitioner to clarify the dates on which certain slate court proceedings were initiated and terminated, and to explain in an amended petition why the habeas application should not he dismissed as time-barred.
In response, petitioner seeks to avoid the AEDPA limitations period by suggesting, inter alia, that he is not in state custody because he was released from state confinement in 1996. He thus asks this court to construe his petition as having been brought pursuant to section 2241, for which AEDPA's one-year limitations period docs not apply, See Amended Petition at 7,
Petitioner's motion to construe his habeas application as having been brought pursuant to section 224 J is denied. He is challenging the validity of a state conviction. Although his state sentence is fully expired and he is no longer in the physical custody of the state, his BICE incarceration and imminent deportation are attributable at least in part to the state conviction and arc therefore "collateral consequences" of the conviction sufficient to satisfy the "in custody" standing requirement of section 2254, See Spencer v. Kemna, 523 U.S. 1, 7 (1998) ("An incarcerated convict's . . . challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration . . . constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction, Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole — some `collateral consequence' of the conviction — must exist if the suit is to be maintained.").
Petitioner has not alleged in the instant habeas application that BICE has improperly relied upon the state conviction to justify his confinement and intended deportation, a circumstance in which a petition brought pursuant to section 2241 would be warranted. Instead he challenges directly the state conviction, which must be done pursuant to section 2254 and the timeliness provisions of section 2244,
For the reasons discussed below, petitioner's habeas application is dismissed as time-barred,
I. Law
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1), This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No, 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup, Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v, Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000), "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground," Id.
In calculating the one-year limitation period, 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." 28 U.S.C. § 2244(d)(2).
The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
In addition, the term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust stale court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000), "[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," Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v, Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause, See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.RY. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
The AEDPA statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances/ To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence7 during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 R3d 133, 138 (2d Cir. 2001), Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 US. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. — 2253; Miller-El v, Cockrell, 123 S.Ct. 1029 (2003), II Application
Petitioner pled guilty to possession of a forged instrument and was sentenced on or about May 14, 1996. His conviction was affirmed by the Appellate Division on May 4, 1998. Leave to appeal to the New York Court of Appeals was denied on July 2, 1998. Because petitioner did not seek a writ of certiorari from the Supreme Court, his conviction became final 90 days later, on September 30, 1998. Absent equitable or statutory tolling, his habeas application was due one year later, on September 30, 1999,
Petitioner initiated no state collateral proceedings until March 5, 2001. The present habeas application was filed on April 18, 2002, The tolling effect of petitioner's state collateral proceedings is of no consequence to the timeliness of his application, since by the date of the initiation of the state collateral proceedings the AEDPA limitations period had already expired by over 17 months.
Petitioner contends that, because of his "journey" through various state and federal detention centers, he could not have learned about the deportation consequences of his state court conviction prior to about March 2001 and that the limitations period therefore did not begin to run until that time, The argument is meritless. Pursuant to section 2244(d)(1)(B), the limitations period does not begin to run until "the date on which the impediment to filing an application created by State action in violation of the Constitution of laws of the United States is removed, if the applicant was prevented from filing by such State action," Because the incarceration of petitioner by federal and state authorities was not unlawful, subsection (B) has no application in the instant case. Pursuant to section 2244(d)(1)(D), the limitations period does not begin to run until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Petitioner's contention that he could not have learned of the deportation consequences of his conviction is not a factual predicate that could not have been discovered with due diligence, To the contrary, petitioner was informed at his sentencing of the potential deportation consequences of his guilty plea. Petitioner's invocation of subsections (B) and (D) is unavailing.
Petitioner has presented this court with no compelling argument in support of equitable tolling of the limitations period.
He does not make a colorable claim that he is actually innocent of the crime and that the time bar should therefore be waived, Petitioner's claims appear, in fact, to be frivolous. He pled guilty and was informed of the potential collateral consequences of his plea, His claim now that he was not so advised and that his plea was involuntary is not credible. The remaining claims he raises in the petition were waived by his guilty plea.
One final observation is necessary. Because petitioner has unsuccessfully moved the court to construe his section 2254 habeas application as one brought pursuant to section 2241, he stands in an analogous position to a prisoner who has improperly filed a section 2241 petition that should have been filed pursuant to section 2254, In such circumstances, rather than simply treating the petition as brought pursuant to section 2254, the district court ordinarily must allow the petitioner the option of withdrawing the petition altogether in order to avoid the adverse consequences that dismissal would have for a potential, subsequently filed habeas application, See Cook v. N.Y. State Div. of Parole, 321 F.3d 274 (2d Cir. 2003).
In the present circumstances, it is nonetheless appropriate for this court to treat the application as one brought pursuant to section 2254, without making further inquiry of petitioner. Any section 22S4 application which he intends to make would be dismissed as time-barred for the reasons discussed above. Presentation of a new factual predicate for a claim that could not have been discovered by the exercise of due diligence, or a new rule of constitutional law made retroactive to cases on collateral review, might serve to make a first section 2254 application timely, see 28 U.S.C. § 2244(d)(1)(B) and (D), but those same circumstances would likewise make consideration of a second or successive habeas petition proper. See 28 U.S.C. § 2244(b)(2)(A) and (B). Treating the application as filed pursuant to section 2254 therefore does not prejudice petitioner. Cf. Cephas v. Nash, 3 28 F.3d 98, 104 n .5 (2d Cir. 2003) ("Where a pi o se prisoner can still pursue a timely § 2255 motion, a district court may not construe an improperly filed § 2241 petition as a § 2255 motion without notice to the prisoner, who can then decide either to agree to the recharacterization or to withdraw his Filing." (emphasis added)),
III. Conclusion
The petition for a writ of habeas corpus is dismissed as time-barred.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct, 1029 (2003).
SO ORDERED.