Opinion
No. 03 CV 3289 (JG).
September 24, 2004
ANTHONY AYALA, No. 99-A-0259, Woodbourne Correctional Facility, Woodbourne, New York, Petitioner Pro Se.
CHARLES J. HYNES District Attorney, Kings County, Brooklyn, New York, Adam S. Charnoff, Assistant District Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Anthony Ayala, an inmate at the Woodbourne Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. Respondent has opposed the petition both on the merits and on the ground that it was not timely filed. I held oral argument by teleconference on September 17, 2004, and now, for the reasons set forth below, grant respondent's application to deny the petition as untimely.
Because Ayala was originally incarcerated in the Eastern Correctional Facility, he named David Miller as respondent.
BACKGROUND
Between 1992 and 1994, Ayala repeatedly forcibly sodomized his eleven-year-old stepdaughter, Shemeka Pinckney, inside their Brooklyn apartment. He was charged with multiple counts of sodomy and sexual abuse, and one count of endangering the welfare of a child. On December 3, 1998, he was convicted by a jury of sixteen counts of sodomy in the first degree, fifteen counts of sodomy in the second degree, and one count of sodomy in the third degree. On February 13, 2001, the Appellate Division, Second Department, unanimously affirmed Ayala's conviction, People v. Ayala, 720 N.Y.S.2d 407 (2d Dep't 2001), and leave to appeal was denied on June 27, 2001, People v. Ayala, 96 N.Y.2d 859 (2001) (Kaye, C.J.).
On April 2, 2002, Ayala filed a pro se motion in New York State Supreme Court, Kings County, dated November 16, 2001, to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. In the same envelope as that motion was a pro se petition for a writ of habeas corpus directed to this Court. The habeas petition raised the same claims Ayala had raised on direct appeal.
On May 24, 2002, the state court denied Ayala's § 440.10 motion. In doing so, the court explicitly addressed (and denied) the claims raised in Ayala's habeas corpus petition, in the event that Ayala had intended those claims to be raised in his § 440.10 motion. That court also explicitly advised Ayala that if he "intended to mail the writ to the Federal District Court, he has been unsuccessful and should renew his application in that court." (Resp. Ex. H at 6.) On September 5, 2002, leave to appeal that decision was denied. In the instant petition — dated June 28, 2003, and received by the Clerk of Court on July 2, 2003 — Ayala raises the same claims he raised on direct appeal.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, provides in relevant part:
(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 . . . 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); see also Lindh v. Murphy, 521 U.S. 320, 327 (1997) ("[Section 2244 applies] to the general run of habeas cases . . . when those cases had been filed after the date of the Act."); Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998).
Here, Ayala's conviction became final — and the one-year statute of limitations began to run — on September 25, 2001, ninety days after Chief Judge Kaye denied leave to appeal from the Appellate Division's affirmance of Ayala's conviction. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). As New York does not recognize a "prisoner mailbox rule," see N.Y.C.P.L.R. § 2102; McKinney's N.Y. Rules of Court §§ 200.3-.5, Ayala's § 440.10 motion tolled the statute when it was received — and hence filed — by the New York Supreme Court on April 2, 2002.See Artuz v. Bennett, 531 U.S. 4 (2000) ("An application is `filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record."). That motion remained pending until September 5, 2002, when leave to appeal the denial of the § 440.10 motion was denied by the Appellate Division.
As stated above, the instant petition is dated June 28, 2003, one year and 276 days after Ayala's conviction became final on September 25, 2001. Ayala's § 440.10 motion was pending for only 156 days: from April 2, 2002 until September 5, 2002. The exclusion of those 156 days leaves Ayala 120 days beyond the applicable one-year statute of limitations and his petition is therefore untimely.
Ayala argues that I should deem his petition filed on March 27, 2002, which was the date of a similar habeas petition Ayala served on the King's County District Attorney around that date. By letter dated June 20, 2003, Ayala claims that he was under the erroneous assumption that he had satisfied this Court's filing requirements by mailing the petition to the District Attorney, who was to forward it to the Court. Were it not for the negligence of the District Attorney, Ayala concludes, his petition would be timely.
Ayala's argument is meritless. At bottom, Ayala argues that I should equitably toll the limitations period based on his mistaken belief that mailing his petition to the District Attorney constituted the filing of the petition in this Court. Equitable tolling, however, applies "only in the rare and exceptional circumstance." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Neither a prisoner's pro se status, nor his lack of legal expertise, provides a basis for equitable tolling of AEDPA's statute of limitations. See, e.g., id. at 18;Francis v. Miller, 198 F. Supp. 2d 232, 235 (E.D.N.Y. 2002). Though Ayala claims that the District Attorney acted negligently, in fact the District Attorney did nothing to impede the filing of Ayala's petition. Furthermore, Ayala did not act with reasonable diligence throughout the time period he seeks to toll, Smith, 208 F.3d at 17; to the contrary, he ignored the clear warning of the state court on May 24, 2002, that he should file his petition in this Court. Ayala waited more than a year after that advice was given to file his petition in this Court. For these reasons, Ayala is not entitled to equitable tolling and his petition is untimely.
CONCLUSION
For the foregoing reasons, the petition is denied. As Ayala has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.