Opinion
98 Civ. 7365 (RPP)
June 28, 2001
Law Office Robert A. Culp, Counsel for Petitioner.
Eliot Spitzer, Attorney General for the State of New York By: Susan H. Odessky, Assistant Attorney General, Counsel for Respondent.
OPINION AND ORDER
Petitioner Ali Celaj ("Petitioner") moves for an order applying the doctrine of equitable tolling and accepting late filing of Petitioner's application pursuant to 28 U.S.C. § 2254 for habeas corpus relief Respondent opposes the motion. For the following reasons, Petitioner's motion is denied.
BACKGROUND
Petitioner was convicted on August 25, 1983, in New York State Supreme Court of one count of conspiracy in the second degree, two counts of criminal sale of a controlled substance in the first degree, and two counts of criminal possession of a controlled substance in the third degree. Petitioner was sentenced to a term of incarceration of twenty-five years to life. Petitioner is currently serving his sentence at Green Haven Correctional Facility, a New York penitentiary.
On December 14, 1984, Petitioner's trial counsel, attorney Martin Light, was convicted of drug trafficking in the Eastern District of New York. See United States v. Light, 599 F. Supp. 874 (E.D.N.Y. 1984). Light was sentenced to fifteen years in prison by the district court and has since been disbarred. See Matter of Light, 491 N.Y.S.2d 52 (N.Y. A.D.2d Dep't 1985).
On appeal to the Appellate Division, First Department, Petitioner's conviction was affirmed without opinion. See People v. Celaj, 536 N.Y.S.2d 361 (N.Y. A.D. 1st Dep't 1988) (table). The appeal was not decided until five years after trial, apparently in part because Petitioner had also filed with the trial court a petition pursuant to New York Criminal Procedure Law § 440 claiming ineffective assistance of trial counsel. (Affirmation of Robert A. Culp dated Oct. 30, 2000 ("Culp Affirm.") Ex. 5 (Copy of Appendix Submitted on Appeal) at A-8). On April 7, 1989, Petitioner was denied leave to appeal to the New York Court of Appeals. See People v. Celaj, 73 N.Y.2d 1012(1989) (table). Petitioner's conviction became final at the conclusion of the ninety day period following April 7, 1989, during which he could have petitioned for a writ of certiorari to the United States Supreme Court. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (holding that petitioner's conviction became final when his time to seek direct review in the United States Supreme Court by writ of certiorari expired); see also Sup.Ct. R. 13(1).
Petitioner was represented in his post-conviction proceeding pursuant to N.Y. Crim. Proc. § 440 and his appeal by Harvey A. Kaminsky, Esq. (Culp Affirm. Ex. 5 at A-12.)
Sup.Ct. R. 13(1) provides in pertinent part:
A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.
In 1992, Petitioner was contacted by an attorney named Stanley Meyer, who was a former partner of Petitioner's trial counsel Martin Light. (Culp Affirm. Ex. 5 at A-28.) Meyer told Petitioner that he had information which would demonstrate that his trial counsel had been ineffective. (Id.) Meyer had represented Light in Light's criminal trial, appeal, and disbarment proceedings. (Culp Affirm. ¶ 6.) Meyer suggested to Petitioner and Petitioner's children that he possessed information related to Light's being investigated for drug activity at the same time he was representing Petitioner. (Culp Affirm. Ex. 2 (Affirmation of Linda Celaj Qerimaj dated Oct. 27, 2000 ("Qerimaj Affirm.")) ¶ 4.) Meyer told Petitioner's family that Light was involved in drug trafficking in the Albanian and Yugoslavian communities, and that this information was the key to and would result in securing Petitioner's release from prison. Culp Affirm. Ex. 3 (Affirmation of Arben Celaj dated Oct. 28, 2000 ("Arben Celaj Affirm.")) ¶ 2.) Petitioner and his family paid Meyer a total of $3,500 to file a petition for habeas corpus on his behalf. (Culp Affirm. Ex. 5 at A-28.) The payments were made in January 1993 and April 1994. (Id. at A-35-A-36.) Petitioner and his family also furnished Meyer with documents relevant to Petitioner's case. (Id. at A-28.) In a handwritten letter dated December 6, 1994, Meyer acknowledged receiving a letter from Petitioner dated December 6, 1993, and stated that he was "still definitely interested." (Id. at A-63.) After hinting that more information about Light might become known the "next week in the federal court," Meyer advised Petitioner to "be patient." (Id.) Petitioner and his family made several attempts to contact Meyer in 1994 and 1996, but Meyer did not return their calls. (Id. at A-28.)
Some of the facts presented here were not considered by the Court in its February 2, 1999, Opinion dismissing the petition because the evidence was submitted in support of Petitioner's motion pursuant to Fed.R.Civ.P. 60(b), which was not considered by this Court due to lack of jurisdiction because Petitioner had filed an appeal. Additional facts are taken from the affirmations of Petitioner's children Linda Celaj Qerimaj and Arben Celaj which were submitted in support of this motion.
Petitioner was born in Albania and emigrated to the United States approximately thirty years ago. (Qerimaj Affirm. ¶ 2.)
On October 19, 1995, Prisoners' Legal Services of New York, apparently in response to Petitioner's request for assistance, wrote to Petitioner advising him that they could not assist him since Prisoners' Legal Services does not handle "criminal issues." (Id. at A-51.) In August 1997, Petitioner contacted the New York State Bar Association, apparently in an attempt to locate Meyer. (Id. at A-24.) The New York State Bar Association referred Petitioner to the Office of Court Administration. (Id.) Eventually, by letter dated April 27, 1998, Petitioner was advised that Meyer had been disbarred. (Id. at A-30.) In April 1998, Petitioner wrote a letter of complaint about Meyer to the State of New York Grievance Committee and in May 1998, Petitioner sought reimbursement of the $3,500 paid to Meyer from the Lawyers' Fund for Client Protection. (Id. at A-28-30.)
Meyer was disbarred on April 13, 1998, for, inter alia stealing funds from a different client (not Petitioner). See Matter of Meyer, 671 N.Y.S.2d 118 (N.Y.App.Div.2d Dep't 1998). On December 26, 2000, Meyer was held in criminal contempt for his failure to comply with the order of disbarment. See In re Meyer, 717 N.Y.S.2d 380 (N.Y.App.Div.2d Dep't 2000).
Approximately four months after learning of Meyer's disbarment, Petitioner filed in the Southern District of New York a petition pro se pursuant to 28 U.S.C. § 2254, which Petitioner signed and dated August 25, 1998. Upon receipt, then-Chief Judge Griesa directed Petitioner to show cause why the petition should not be dismissed for failure to meet the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d). In response, Petitioner filed an affirmation arguing that his delinquency should be excused due to the difficulties he experienced with his retained counsel, Stanley Meyer. By Order dated February 2, 1999, this Court denied Petitioner's application to be excused from the one-year limitation period, but granted a Certificate of Appealability because of the lack of appellate guidance on the applicability of the doctrine of equitable tolling to the AEDPA statute of limitations. In response to the February 2, 1999, Order, Petitioner pro se filed a Notice of Appeal on March 9, 1999. Also on March 9, 1999, Petitioner pro se moved pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 60(b) to vacate the February 1999 Order. By memorandum endorsement dated April 30, 1999, Petitioner's motion pursuant to Fed.R.Civ.P. 60(b) was denied by this Court for lack of jurisdiction due to the pending appeal.
On appeal, Petitioner, who was then represented by counsel, argued that certain documents which Petitioner submitted with his motion pursuant to Rule 60(b) and which were not considered by this Court should be considered with respect to whether the statute of limitations should be tolled. On March 23, 2000, the Second Circuit Court of Appeals vacated this Court's February 1, 1999, Order, holding that Petitioner should have an opportunity to have those additional documents considered by the district court in determining whether he is entitled to equitable tolling. Celaj v. Artuz, 208 F.3d 202, 2000 WL 311047 (2d Cir. March 23, 2000) (table). The Second Circuit also noted that it had recently spoken to the issue of equitable tolling in Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000). Id. at *2.
On remand, Petitioner, represented by counsel, moved on October 30, 2000, with accompanying affidavits and memorandum of law, for an order applying the doctrine of equitable tolling and accepting late filing of Petitioner's habeas corpus petition. On December 22, 2000, Respondent submitted a memorandum of law in opposition. On January 18, 2001, Petitioner submitted a reply memorandum of law. On January 25, 2001, oral argument was heard on the motion.
In addition to the documents previously submitted by Petitioner in support of his motion pursuant to Fed.R.Civ.P. 60(b), Petitioner now submits affirmations from two of his children, Linda Celaj Qerimaj and Arben Celaj, and selected excerpts from a report by the President's Commission on Organized Crime concerning Petitioner's trial lawyer Martin Light and testimony by Light before the Commission. (Culp Affirm., Exs. 2-4.)
DISCUSSION
Petitioner, represented by counsel, moves for an order applying the doctrine of equitable tolling and accepting late filing of Petitioner's habeas corpus petition. The petition is subject to the statute of limitations set forth in AEDPA. AEDPA, enacted on April 24, 1996, provides in relevant part:
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 —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(2000).
Petitioner's conviction became final in 1989, prior to the enactment of AEDPA, which entitled him to the one-year grace period from the date of enactment of AEDPA. See Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Thus AEDPA required Petitioner to file his petition for relief by April 27, 1997. See id. The petition was signed and dated August 25, 1998, almost sixteen months after the expiration of the one-year grace period. Accordingly, the petition is untimely filed.
Petitioner argues that equitable tolling is appropriate in this case because of the fraudulent acts of his retained counsel, Stanley Meyer. "Equitable tolling allows courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances."
Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996). The Second Circuit has held that courts may equitably toll the one-year statute of limitations period in 28 U.S.C. § 2244(d) or the grace period announced in Ross v. Artuz. Smith, 208 F.3d at 17. However, "[e]quitable tolling applies only in the `rare and exceptional circumstance.'" Id. (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)). "[T]o equitably toll the one-year period of limitations, [a petitioner] must show that extraordinary circumstances prevented him from filing his petition on time." Id. "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id.
Here, Petitioner claims that extraordinary circumstances exist because Stanley Meyer, the counsel he retained in 1993, defrauded Petitioner by stealing money from Petitioner and his family and never filing the habeas petition for Petitioner. Petitioner also argues that Meyer did not disclose his conflict of interest, namely that Meyer was the former law partner of Petitioner's trial attorney Martin Light, and that Meyer had also represented Light in his criminal trial and appeal and in disbarment proceedings.
In Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999), in the context of deportation proceedings, the Ninth Circuit Court of Appeals held that the statute of limitations to reopen an order of deportation was equitably tolled where the alien's petition was filed sixteen days late as a result of the deceptive acts of a notary posing as an attorney. In Lopez, the notary told Lopez that he was an attorney, did not file the work permit Lopez requested, advised Lopez not to attend any of his INS hearings, and failed to attend the hearings himself. Id. at 1098. The court held that "`where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part'" the statute of limitations will be equitably tolled. Id. at 1100 (quotingHolmberg v. Armbrecht, 327 U.S. 392, 397(1946) (internal citation omitted)). The court found that Lopez had reasonably relied on the notary and thus the court equitably tolled the statute of limitations. Id. In the case at hand, Meyer, like the notary in Lopez, deceived Petitioner by agreeing to file the petition for habeas relief, accepting payment to do so, and then failing to file the petition. Such fraud by a retained attorney may be considered extraordinary circumstances.
Even if extraordinary circumstances occurred, however, those circumstances still must have prevented Petitioner from filing his petition on time and Petitioner "must have acted with reasonable diligence throughout the period he seeks to toll." Smith, 208 F.3d at 17. The Second Circuit has explained that:
[t]he word "prevent" requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). The lack of access to a law clerk, illiteracy, lack of English fluency and ignorance of the law have all been considered and rejected by courts as insufficient to demonstrate that circumstances effectively prohibited petitioner from filing in a timely manner. See Zarvela v. Artuz, No. 97 Civ. 2393 (RR), 1999 WL 1487595 at *2 (E.D.N.Y. Dec. 3, 1999) (citing Armand v. Strack, No. 98 Civ. 6650(RJD), 1999 WL 167720 at *5 (E.D.N.Y. Feb. 19, 1999) and cases cited therein), rev'd on other grounds, ___ F.3d ___, 2001 WL 671762 (2d Cir. June 14, 2001). Additionally, courts have declined to invoke equitable tolling in cases of lack of notice regarding the outcome of an appeal where the petitioner failed to exercise reasonable diligence. See Plowden v. Romine, 78 F. Supp.2d 115, 119 (E.D.N Y 1999);see also Ferguson v. Mantello, No. 00 Civ. 2098 (SAS), 2000 WL 1721140 at *2 (S.D.N.Y. Nov. 16, 2000).
Thus the issue is whether Petitioner acted with reasonable diligence throughout the period he seeks to toll. In the case at hand, Petitioner retained counsel in January 1993 and signed and dated his petition August 25, 1998. Petitioner's last written contact from Meyer is a handwritten letter dated December 6, 1994, which states that Meyer was "still definitely interested" and that new information regarding Petitioner's trial counsel might come to light the following week. (Culp Affirm. Ex. 5 at A-63.) The letter does not indicate that the petition had been filed at that point, and indeed suggests that the evidence Meyer intended to offer in support of the petition had not yet been fully marshaled. Thus Petitioner should have been aware that his petition for habeas relief had not been filed as late as December 1994, nearly two years after Petitioner retained counsel in January 1993. Although Petitioner states that he and his family attempted to contact Meyer sometime in 1996, Meyer did not return their calls. Accordingly, forty-four months elapsed between the December 1994 letter from Meyer and Petitioner's filing of the instant petition. Petitioner's only other evidence of dilience in pursuit of his habeas corpus rights is that prior to October 19, 1995, Petitioner sought assistance on "criminal issues" from Prisoners' Legal Services of New York. (Id. at A-51.)
In August 1997, Petitioner inquired of the New York State Bar Association for Meyer's address. Id. at A-24.) In April 1998, Petitioner wrote a letter of complaint about Meyer to the State of New York Grievance Committee and in May 1998, Petitioner sought reimbursement of the $3,500 paid to Meyer from the Lawyers' Fund for Client Protection. (Id. at A-28-30.) These efforts of Petitioner appear to have been directed at contacting Meyer and getting back the money paid to Meyer. This evidence is insufficient to show that Petitioner acted with reasonable diligence in filing a petition for habeas corpus throughout the period he seeks to toll.
Equitable tolling is only permitted "if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Petitioner does not claim that he was impeded from filing a petition pro se. Thus Petitioner, acting with reasonable diligence, could have timely filed a petition for habeas corpus, notwithstanding his retained counsel's fraud. Indeed, Petitioner ultimately filed a detailed petition pro se with the assistance of jailhouse lawyers raising four grounds for relief. In light of the petition he ultimately filed, Petitioner's argument that he was prevented from filing his petition because he had given his legal papers to Meyer and was unable to get them back is unavailing. Since Petitioner has not shown that extraordinary circumstances beyond his control prevented him from filing on time, Petitioner is not entitled to equitable tolling.
Petitioner acknowledges that his petition was filed with the assistance of jailhouse lawyers. (Pet.'s Mem. at 10.) Petitioner raised four grounds for relief in his petition pursuant to 28 U.S.C. § 2254: (1) the introduction of inadmissible evidence at trial; (2) an unconstitutional charge to the jury on reasonable doubt; (3) his trial counsel's ineffective assistance; and (4) the introduction of false testimony at trial relating to the terms of a cooperation agreement. (Culp Affirm. Ex. 5 at A-13-14.)
Petitioner argues that his claims on the merits favor equitable intervention and tolling of the statute of limitations. One of the grounds raised by Petitioner is ineffective assistance of trial counsel. (Culp Affirm. Ex. 5 at A-13-14.) Petitioner asserts that his trial counsel failed to advise him before trial of a plea offer of six years, which, in view of the sentence of twenty-five years to life that Petitioner received, warranted his consideration. See. e.g., Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) (holding that counsel must communicate to the defendant the terms of the plea offer and should usually inform the defendant of the strengths and weaknesses of the case against him and the alternative sentences to which he will most likely be exposed). Petitioner alleges that his trial counsel was involved in some respect with drug trafficking in the Albanian community during the period when Light was defending Petitioner, which may have created a conflict of interest in advising Petitioner whether to accept the plea offer. See United States v. Light, 599 F. Supp. 874, 876 (E.D.N.Y. 1984) (finding that "the court is satisfied . . . that [Light] was involved for some two years in sales of heroin"). Petitioner argues that this claim of ineffective assistance of counsel renders review "glaringly warranted." In Helton v. Sec'y for the Dep't of Corr., 233 F.3d 1322, 1325 (11th Cir. 2000), the application of equitable tolling was upheld where review was "glaringly warranted." In Helton, the petitioner received incorrect information from his counsel as to the relevant statute of limitations and was also prevented from discovering the appropriate calculation due to the found deficiencies in the prison library system. Id. Additionally, in Helton the court specifically noted that the petitioner had "diligently pursued his legal remedies without delay." Id. Here, Petitioner argues that review of his claim of ineffective assistance of counsel is similarly "glaringly warranted," and that equitable tolling is therefore appropriate. However, the factors present in Helton are not present here. Although Petitioner retained counsel in 1993 to file his petition for habeas corpus, Petitioner's last written contact from retained counsel was in December 1994. Petitioner thereafter sought assistance from Prisoners' Legal Services, which was denied in October 1995. Accordingly, other than retaining counsel in 1993, from whom Petitioner's last written contact was in 1994, and seeking assistance from Prisoners' Legal Services in 1995, there is no evidence that Petitioner diligently pursued his legal remedies without delay. Moreover, there is no indication that Petitioner, like Helton, was prevented from discovering the applicable statute of limitations in the prison library, nor has Petitioner alleged deficiencies in the prison library system that would have so prevented him. Thus Petitioner's case does not present extraordinary circumstances sufficient to allow equitable tolling.
Petitioner also argues that, under AEDPA, the one-year limitation period should not be deemed to commence running until Petitioner learned of Meyer's disbarment in April 1998. Under AEDPA, the one-year limitation period runs from the latest of four events, one of which is "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). In support of this argument, Petitioner relies on Wims v. United States, 225 F.3d 186 (2d Cir. 2000), where the petitioner claimed that his attorney's failure to appeal the district court's sentencing determination constituted ineffective assistance of counsel. Id. at 188. The Second Circuit applied 28 U.S.C. § 2255 which, like 28 U.S.C. § 2244(d)(1), provides that the limitation shall run from the latest of four events, one of which is "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Id. (quoting and applying 28 U.S.C. § 2255(4)). The Second Circuit reversed the district court's dismissal of Wims's petition and remanded the case to the district court to determine when a duly diligent person would have discovered that his lawyer had not filed the appeal, i.e., when a duly diligent person would have discovered the facts supporting his claim.Id. at 190-91. Unlike the situation in Wims, however, the factual predicate of Petitioner's ineffective assistance of counsel claim for relief in his petition for habeas corpus is not Meyer's failure to file Petitioner's application for habeas corpus, but Light's ineffective assistance of trial counsel. The four grounds for relief Petitioner raised in his habeas petition relate to alleged constitutional violations at and before trial. Most of these grounds were available to Petitioner in 1983 and Petitioner does not argue that he only learned of Light's alleged ineffective assistance after the expiration of the one-year grace period in April 1997. Accordingly, 28 U.S.C. § 2244(d)(1)(D) is not applicable here.
As noted above, Petitioner raised four grounds for relief in his petition pursuant to 28 U.S.C. § 2254: (1) the introduction of inadmissible evidence at trial; (2) an unconstitutional charge to the jury on reasonable doubt; (3) his trial counsel's ineffective assistance; and (4) the introduction of false testimony at trial relating to the terms of a cooperation agreement. (Culp Affirm. Ex. 5 at A-13-14.)
Finally. Petitioner argues that the United States Constitution affords Petitioner a remedy because of the "miscarriage of justice" that would ensue were he to be barred from federal review of his conviction. However, "[w]ithout any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Schlup v. Delo, 513 U.S. 298, 316(1995). If a petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, [then] the petitioner should be allowed to . . . argue the merits of his underlying claims." Id. Thus "the habeas petitioner [must] show that `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496(1986)). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. "It is important to note in this regard that `actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623(1998).
In this case, Petitioner concedes that he does not present evidence of innocence, nor does he argue that he is factually innocent. (See Pet.'s Mem. at 22-23.) Rather, Petitioner alleges constitutional violations at trial and the failure of his counsel to render competent unconflicted advice regarding a plea offer. Since Petitioner does not present evidence of innocence, the "miscarriage of justice" exception is inapplicable and the petition is barred by the statute of limitations.
CONCLUSION
For the foregoing reasons, Petitioner's motion for an order applying the doctrine of equitable tolling and accepting late filing of Petitioner's application pursuant to 28 U.S.C. § 2254 for habeas corpus relief is denied.
IT IS SO ORDERED.