Opinion
No. CV 00-1331 (RR)
May 3, 2002
James Edwards, Inmate No. 87-T1-1630, Sing Sing Correctional Facility, Fallsburg, New York, for Petitioner, Pro Se.
Honorable Denis Dillon, Nassau County District Attorney, Tammy J. Smiley, Assistant District Attorney, Daniel T. Butler, Assistant District Attorney, for Respondent.
Memorandum and Order
James Edwards, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a 1987 jury trial in Nassau County, Edwards was convicted of two counts each of Robbery in the First Degree, see N.Y. Penal Law § 160.15[2] (McKinney 1999), Robbery in the Second Degree, see N.Y. Penal Law § 160.10 (McKinney 1999), and Burglary in the First Degree, see N.Y. Penal Law § 140.30 (McKinney 1999), as well as one count of Criminal Use of a Firearm in the First Degree, see N.Y. Penal Law § 265.09 (McKinney 2000). He is presently incarcerated, serving a cumulative indeterminate sentence of 25 to 50 years.
Edwards challenges his conviction on the grounds that (1) the trial court's erroneous jury charge deprived him of due process; (2) the denial of his severance motion violated his right to due process; and (3) his trial counsel was ineffective. Respondent moves to dismiss Edwards' petition as untimely under 28 U.S.C. § 2244. Having carefully reviewed the submissions of the parties, the court concludes that the petition was not filed within the time required by federal law and must be dismissed without consideration of the merits.
Procedural History
On October 27, 1987, the jury found Edwards guilty of the aforementioned charges. Thereafter, he filed a direct appeal, arguing, inter alia, that the trial court should have granted his motion to sever certain counts of the indictment. The Supreme Court of New York, Appellate Division, Second Department, affirmed his conviction on April 2, 1990, finding that the trial court did not abuse its discretion in denying petitioner's severance motion. People v. Edwards, 553 N.Y.S.2d 797, 797, 160 A.D.2d 720, 721 (2d Dep't 1990). The New York Court of Appeals denied leave to appeal on June 25, 1990. People v. Edwards, 76 N.Y.2d 787, 559 N.Y.S.2d 992 (1990) (Alexander, J.).
Later that year, Edwards moved to vacate his judgment of conviction pursuant to New York State Criminal Procedure law § 440.10 on grounds not raised in the current petition. The Nassau County Court denied his motion on a procedural ground in January 1991. Over two years later, in August 1993, petitioner moved for a writ of error coram nobis in the Appellate Division on the ground that he had received ineffective assistance of appellate counsel. The Appellate Division denied the motion in January 1994.
Three years later, on February 7, 1997, Edwards filed a motion to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20 raising grounds not presented in this petition. The Nassau County Court denied his motion on August 4, 1997, and the Appellate Division denied leave to appeal from that disposition on November 14, 1997. On January 2, 1998, the Court of Appeals dismissed as unappealable petitioner's application for leave to appeal from the Appellate Division's denial of his leave application.
Although the records from the County Court, Nassau County, suggest that Edwards filed his § 440.20 motion on February 11, 1997, respondent explains that the Supreme Court, Nassau County, received that motion on February 7, 1997 and transferred it to the County Court. See Resp.'s Aff. and Memo at 4. This court therefore will use the earlier date to determine whether Edwards' petition was timely filed.
On March 20, 1997, while his § 440.20 motion was pending, Edwards filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was assigned to Judge Charles P. Sifton. See Edwards v. Keane, No. 97-CV-1380. Once again, he complained of the trial court's denial of his motion for severance. Although Judge Sifton initially dismissed the petition as untimely, the Court of Appeals for the Second Circuit vacated the judgment in light of its decision in Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998), and remanded for further proceedings. Thereafter, Edwards moved to withdraw the petition in order to exhaust additional claims. Judge Sifton granted his motion and, on June 11, 1999, dismissed the case without prejudice to refiling upon completion of state court proceedings. See Edwards v. Keane, No. 98-2075.
On August 31, 1999, Edwards filed a second motion to vacate his conviction pursuant to § 440.10 raising, inter alia, his claim regarding the jury instruction on reasonable doubt and multiple ineffective assistance of trial counsel claims. By order dated November 12, 1999, the Nassau County Court denied the motion due to petitioner's failure to raise the claims on direct appeal or in his first § 440.10 motion. The Appellate Division denied his application for leave to appeal on January 18, 2000.
On February 15, 2000, Edwards filed his second petition for a writ of habeas corpus with this court.
Because a habeas corpus petition is deemed to have been filed on or about the date an inmate delivers it to prison officials for transmittal to the court, see Houston v. Lack, 487 U.S. 266 (1988), this court assumes that Edwards delivered his petition on February 15, 2000, the day it is dated.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. 110 Stat. 1214, requires state prisoners seeking relief pursuant to 28 U.S.C. § 2254 to file their petitions within one year of whichever of the following events occurs last:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of 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).
Petitioners, such as Edwards, whose convictions became final prior to the enactment of AEDPA are afforded a one-year grace period from the effective date of the Act in which to file § 2254 petitions. Ross v. Artuz, 150 F.3d at 98. Excluded from this one-year limitations period is "[t]he 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. . . ." 28 U.S.C. § 2244(d)(2); see Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999) (applying statutory tolling provision to the grace period afforded convictions that became final prior to AEDPA's effective date), aff'd on other grounds, 531 U.S. 4 (2000); Duncan v. Walker, 533 U.S. 167, 181 (2001) (federal habeas corpus petition is not application for State post-conviction or other collateral relief).
Applying these rules to Edwards' case, Ross v. Artuz allowed him one year from April 24, 1996 to challenge his 1987 conviction. The limitations period was tolled 288 days later, on February 7, 1997, when Edwards filed his § 440.20 motion with the state court. Tolling continued until November 14, 1997, when the Appellate Division denied leave to appeal the adverse ruling on this motion. See Bennett v. Artuz, 199 F.3d at 120 (holding that state court petition is "pending" from time first filed until finally disposed of, i.e., time at which no further appellate review is available). The limitations period did not toll, however, while Edwards' application for leave to appeal was pending before the Court of Appeals because no appellate review was available before that court. Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.), cert. denied, 531 U.S. 1018 (2000) (after denial of leave to appeal by Appellate Division, no further appellate review available for § 440.20 motion).
As of the Appellate Division's denial of leave to appeal from the denial of his § 440.20 motion. Edwards had 77 days remaining in his one-year grace period. At that time, his first federal habeas petition was still pending before this court. As a rule, neither the AEDPA statute of limitations nor the Ross grace period is tolled during the pendency of a federal habeas petition. See Duncan v. Walker, 533 U.S. at 181. Nevertheless, Edwards argues that this court should equitably toll the period during which his federal petition was pending prior to its dismissal without prejudice on June 11, 1999. This argument is moot, however, because even if the court were to toll this period, Edwards' petition would still be untimely.
After the dismissal of his § 2254 petition on June 11, 1999, Edwards waited 81 days, until August 31, 1999, to file his second § 440.10 motion in state court, four days beyond the 77 days remaining on his one-year grace period. After the state court's January 18, 2000 denial of leave to appeal the adverse ruling on his § 440.10 motion, Edwards waited an additional 28 days to file his current § 2254 petition, making his present filing untimely by 32 days.
Finally, the court notes that Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001), provides no alternative relief for Edwards. First, a serious question exists as to whether Zarvela should be applied retroactively in determining the timeliness of a § 2254 petition. See Smaldone v. Senkowski, 273 F.3d 133, 139 (2d Cir. 2001) (declining to address retroactivity of Zarvela because not within certificate of appealability). Assuming that Edwards could clear that procedural hurdle, his case does not fall within the parameters outlined by Zarvela. That case holds that an unexhausted habeas petition should be stayed rather than dismissed when a petitioner has less than 60 days remaining in the limitations period. See Zarvela v. Artuz, 254 F.3d at 381-82. Since Edwards had 77 days to exhaust his state claims, Judge Sifton acted reasonably in dismissing rather than staying Edwards' petition. In any event, after the dismissal Edwards did not act with reasonable diligence in presenting his unexhausted claims to the state court. Zarvela conditions equitable intervention on petitioners presenting their unexhausted claims within 30 days. See id. at 382 (stating that prompt action by petitioner to initiate exhaustion and return to federal court serves as equivalent of "reasonable diligence" required for equitable tolling). Edwards' failure to present his unexhausted claims for 81 days therefore is well beyond any period of reasonable diligence. See Baity v. Mazzuca, 2002 WL 87664, *4 (S.D.N.Y. Jan. 23, 2002) (declining to determine whether to apply Zarvela retroactively because Baity did not act with reasonable diligence due to eleven and one-half month delay in initiating exhaustion); c.f. Jimenez v. Walker, 166 F. Supp.2d 765, 772 (E.D.N.Y. 2001) (awarding equitable tolling where, had court foreseen Duncan v. Walker, it would have been in its discretion to award Zarvela relief and the petitioner demonstrated diligence as no period between filings was greater than two weeks); Devino v. Duncan, 2002 WL 91615 (S.D.N.Y. Jan 24, 2002) (appointing counsel to address Zarvela retroactivity where petitioner initiated exhaustion within 33 days and returned in 13 days). Accordingly, equity will not intervene to excuse his untimely filing.
Conclusion
Because Edwards' petition was not filed within the one-year period provided by 28 U.S.C. § 2244 as interpreted in Ross v. Artuz, 150 F.3d at 98, the court hereby dismisses the petition as untimely. A certificate of appealability is denied. The Clerk of the Court is directed to mark this case closed.