Opinion
Nos. 04 Civ. 5764 (SAS), 98 CR 1238 (SAS).
February 10, 2005
Alan Barton-Nachamie, FCI Otisville Camp, Otisville, NY, for Petitioner (Pro Se)
Christine Meding, Assistant United States Attorney, New York, New York, for Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On November 3, 2004, ¶ dismissed the pro se petition filed by Alan Barton-Nachamie under 28 U.S.C. § 2255 as untimely. Nachamie then submitted a letter dated November 13, 2004, which I treated as a motion for reconsideration. In his November 13th letter, Nachamie describes various difficulties he had with Valerie Amsterdam, the attorney from whom he sought assistance in preparing his petition. On December 21, 2004, I denied Nachamie's motion for reconsideration. Nachamie has since submitted another letter dated January 24, 2005, which describes in further detail his dealings with Ms. Amsterdam.
In his most recent letter, Nachamie states that Ms. Amsterdam assured him that she would get an extension for the filing of his petition. Nachamie also states that he was not aware that he could file a pro se petition which could be amended later. Nachamie also complains that the Otisville Camp, where he is currently incarcerated, does not have a working law library.
This Court is unaware of any authority for the granting of an extension to file a habeas petition before its due date. The practice of this Court is to review petitions for timeliness and, if untimely on their face, determine if there any circumstances that may warrant equitable tolling.
This statement is doubtful for a number of reasons. First, Nachamie was convicted of a complex scheme to defraud the Medicare system which shows a certain level of sophistication and intelligence. Second, in his November 13th letter, he states: "Prior to [Amsterdam's] visit Carmen [his fiancé] had contacted family friend Attorney Joel Cohen and told him about all the delays and we were concerned about the filing deadline." Mr. Cohen recommended several attorneys whom Carmen contacted, one of whom recommended that Nachamie file a complaint against Ms. Amsterdam with the Supreme Court Disciplinary Committee, which he did. It is unlikely that none of these attorneys informed Carmen about the possibility of filing a pro se petition. Third, in his January 24th letter, Nachamie describes how another inmate handed him a copy of a decision that specifically dealt with whether an inadequate prison law library can warrant equitable tolling. Again, it is unlikely that no other inmate at the Otisville Camp told him about filing pro se.
This statement is also disingenuous. The Otisville Camp has a satellite camp law library. The contents for satellite camp law libraries are indexed in Exhibit B to Program Statement 1315.07, Legal Activities, Inmate, a copy of which is appended to this Opinion and Order. Included among the required materials for satellite camp law libraries are Decisions of the United States Supreme Court, Federal Reporters, United States Code Annotated and a volume entitled Federal Habeas Corpus Practice and Procedure. Furthermore, inmates can request any materials not contained in the satellite law library from the main library at the Otisville facility. Chambers contacted the education staff at the Otisville Camp and was informed that their satellite library contains reference materials that require a six-page index. This is not the description of a "non-working library."
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), enacted a one-year limitation period for petitions filed under 28 U.S.C. § 2255. In order to equitably toll this period, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). In addition to the presence of extraordinary circumstances, a petitioner must establish that he diligently attempted to file his petition in a timely manner during the time he seeks to have tolled. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) ("If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing."). Determining whether equitable tolling is warranted is a "fact-specific inquiry." Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Because it is a fact-specific, discretionary doctrine, "equitable tolling does not lend itself to bright-line rules." Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
The Second Circuit has provided some guidance with regard to equitable tolling and attorney misconduct. In Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir. 2003), the court held 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. In Baldayaque, the attorney who was retained and specifically directed by petitioner's representatives to file a "2255," failed to file such a petition despite having ample time to do so. See id. at 152. The attorney did no legal research on petitioner's case and never spoke to or met petitioner. See id. When petitioner's representative called the attorney on a monthly basis, she was assured that he was just waiting for a court date and was taking care of everything. See id. at 149.
Although the court found these circumstances to be sufficiently extraordinary to justify the application of equitable tolling, it cautioned that a "petitioner must also show that he acted with reasonable diligence, and that the extraordinary circumstances caused his petition to be untimely." Id. at 153. A remand was warranted to allow the district court to consider whether petitioner had exercised reasonable diligence in light of evidence suggesting that he had no choice but to rely on his attorney. See id.
The evidence indicated that petitioner hired his attorney specifically to file his section 2255 motion, and he and his wife spoke almost no English, had little education, and were incapable of raising the funds necessary to retain another lawyer. See id. at 153.
The Second Circuit has further explained the concept of reasonable diligence in Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004).
Even where the extraordinary circumstances on which the petitioner rests his claim involve attorney incompetence, the petitioner must still demonstrate that he himself made reasonably diligent attempts to ensure that his petition was filed on time. See Baldayaque, 338 F.3d at 153. In other words, the act of retaining an attorney does not absolve the petitioner of his responsibility for overseeing the attorney's conduct or the preparation of the petition. Particularly because petitioners often are fully capable of preparing and filing their habeas petitions pro se, and pro se status does not in itself constitute an extraordinary circumstance meriting tolling, see Smith, 208 F.3d at 18, it would be inequitable to require less diligence from petitioners who are able to hire attorneys than from those who are forced to proceed pro se. In the attorney incompetence context, therefore, the reasonable diligence inquiry focuses on the purpose for which the petitioner retained the lawyer, his ability to evaluate the lawyer's performance, his financial and logistical ability to consult other lawyers or obtain new representation, and his ability to comprehend legal materials and file the petition on his own. See Baldayaque, 338 F.3d at 153 (listing factors relevant to reasonable diligence that district court should consider on remand).
The Court distinguished Baldayaque on the ground that "Doe was in a privileged position relative to most habeas petitioners, as he possessed the education, skills, and financial and logistical ability capably to evaluate his lawyer's performance and act to remedy any problems." Id. at 178. Accordingly, the court affirmed the district court's rejection of equitable tolling on the basis of attorney incompetence. See id. at 179.
The court found Doe fully capable of acting pro se as his personal submissions to the court were "well-written, articulate, and clearly the product of someone both fluent in English and highly educated." Id. at 177. The same can be said of Nachamie's letters to this Court.
Here, Nachamie claims that he first contacted Ms. Amsterdam in August 2002, and that he first met with her in April 2003, the very month in which his petition was due. According to Nachamie, he informed Ms. Amsterdam about the one-year deadline on more than one occasion but was assured by her that she would get an extension from the Court. However, as the November 22, 2004 letter from Carmen Perez indicates, Nachamie did not actually retain Ms. Amsterdam until March 13, 2003, when Ms. Perez mailed a $1,500 check to Ms. Amsterdam. This was done a little over one month before the petition was due on April 24, 2003. Therefore, it was unreasonable for Nachamie to rely on any of her assurances before he officially retained her. And hiring an attorney just weeks before the deadline for filing a petition does not show reasonable diligence on Nachamie's part.
III. CONCLUSION
For the foregoing reasons, I adhere to my earlier ruling finding that the instant petition is time-barred.
SO ORDERED.OPI: OGC Program NUMBER: 1315.07 Statement DATE: 11/5/99 SUBJECT: Legal Activities, Inmate
1. [ PURPOSE AND SCOPE § 543.10. The Bureau of Prisons affords an inmate reasonable access to legal materials and counsel, and reasonable opportunity to prepare legal documents. The Warden shall establish an inmate law library, and procedures for access to legal reference materials and to legal counsel, and for preparation of legal documents.]
2. SUMMARY OF CHANGES. The changes include allowing the Central Office to contact the institutions by way of BOPNet GroupWise or memorandum, rather than Operations Memorandum, to direct the ordering of law library materials.
The procedures for posting and maintaining Bureau and U.S. Parole Commission Federal Register documents at institutions are revised and streamlined. These documents will be sent via GroupWise to staff responsible for the institution law libraries instead of being issued by Operations Memoranda.
All references to the "Central Office Librarian" have been changed to "Bureau's Librarian" to reflect the Librarian's responsibility for providing services Bureau-wide.
The Standards Referenced have been updated to reflect the revised American Correctional Association standards.
Finally, the required publications in Attachments A, B, and C are updated to reflect a variety of changes including changes in name and title, volume numbers, publishers and publishing companies, etc. Specific changes to publications in Attachments A, B, and C, requirements for the main, satellite camp and basic inmate law libraries, include:
[Bracketed Bold — Rules]
Regular Type — Implementing Information
REQUIRED MATERIALS FOR SATELLITE CAMP LAW LIBRARIES
1. REPORTERS:
a. Decisions of the United States Supreme Court, 1964 — present. (Lexis Law Publishing Co.).
b. Federal Reporter, 2d Series, Volumes 604-999 (West Group).
c. Federal Reporter, 3d Series, Volumes 1 — present (West Group).
d. Criminal Law Reporter (new institutions purchase first annual subscription; subsequent subscriptions ordered by Central Office) (BNA).
2. STATUTES:
a. United States Code Annotated. (West Group). (Pamphlet volumes not included)
(1) Title 5, sections 1-5100.
(2) Title 18, complete.
(3) Title 21, complete.
(4) Title 26, sections 3101 to end.
(5) Title 28, volumes containing the Rules of the United States Supreme Court, United States Court of Appeals Rules and Federal Rules of Appellate Procedure.
(6) Title 28, sections 2201 to end.
(7) Title 42, sections 1771-2010.
b. United States Constitution and Amendments, (complete).
3. RULES:
a. Federal Civil Judicial Procedures Rules (West Group).
b. Federal Criminal Code Rules (West Group).
4. REGULATIONS:
Title 28 of the Code of Federal Regulations (U.S. Government Printing Office) (three copies).
These copies may be loaned to other inmate law libraries at the Supervisor of Education's discretion.
5. PROGRAM STATEMENTS:
a. All current Bureau of Prisons Program Statements which contain rules codified in Chapters III or V of Title 28 of the Code of Federal Regulations.
b. Any other Program Statement or Institution Supplement that the Warden may deem to be of interest to the inmate population, with the exception of those documents that are restricted.
6. OTHER MATERIALS:
a. Black's Law Dictionary (West Group).
b. Complete Manual of Criminal Forms, Bailey and Fishman (West Group).
c. Constitutional Rights of Prisoners, Palmer (Anderson Publishing Co.).
d. Law of Sentencing, Corrections and Prisoners' Rights, Krantz (West Group).
e. Criminal Procedure in a Nutshell, Israel and LaFave (West Group) (three copies).fn_
f. Federal Habeas Corpus Practice and Procedure, Liebman and Hertz (Michie Publishing Co.) (all volumes and supplements) (two copies).fn_
g. Legal Research in a Nutshell, Cohen and Kent (West Group) (three copies).
h. Legal Research and Writing: Some Starting Points, Statsky (West Publishing Co.).
i. Manual for Courts-Martial, 1995, United States (U.S. Government Printing Office).
j. Modern Criminal Procedure, Israel and Kamisar (West Group).
k. Prisoners' Assistance Directory (The National Prison Project).
l. ABA's Family Legal Guide, (Publications International Ltd.).