Opinion
01 Civ. 9936 (LMM) (KNF)
December 30, 2002
REPORT AND RECOMMENDATION
TO THE HONORABLE LAWRENCE M. McKENNA, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is Thanh Giap's ("Giap") petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254, and the respondent's motion to dismiss. The respondent contends that Giap's petition is untimely pursuant to 28 U.S.C. § 2244(d)(1). Petitioner opposes the motion to dismiss on the ground that the one-year limitations period for filing a federal habeas corpus petition should be equitably tolled in this case because the extraordinary circumstances of the attacks on the World Trade Center on September 11, 2001, prevented him from filing his petition timely. For the reasons set forth below, I recommend that the respondent's motion to Dismiss be granted.
II. BACKGROUND
On December 23, 1997, petitioner was convicted in New York State Supreme Court, New York County, for murder in the second degree, see N.Y. Penal Law § 125.25(1), and sentenced to an indeterminate term of imprisonment of twenty-five years to life. On June 8, 2000, the New York State Supreme Court, Appellate Division, First Department unanimously affirmed the conviction. See People v. Giap, 273 A.D.2d 54, 709 N.Y.S.2d 62 (App.Div. 1St Dep't 2000). Giap's application for leave to appeal to the New York Court of Appeals was denied on August 3, 2000. See People v. Giap, 95 N.Y.2d 872, 715 N.Y.S.2d 227 (2000).
Giap filed his petition for a writ of habeas corpus on November 9, 2001. Thereafter, respondent filed a motion to dismiss Giap's petition as untimely pursuant to 28 U.S.C. § 2244(d). Petitioner argues that the time for filing his petition for a writ of habeas corpus should be equitably tolled because extraordinary circumstances beyond his control prevented him from filing his petition within the statutory period.
III. DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a prisoner has one year after his conviction becomes final in which to file a petition for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). A conviction becomes final, for the purposes of AEDPA, upon the conclusion of direct review or the expiration of the time in which a petitioner may seek direct review in the United States Supreme Court by writ of certiorari. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998).
Specifically, AEDPA provides in section 2244(d)(1):
(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 —
(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).
Giap's conviction became final on November 1, 2000, the date on which his time to seek certiorari from the United States Supreme Court expired. See Ross, 150 F.3d at 98; Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir. 2000). Pursuant to 28 U.S.C. § 2244(d)(1)(A), Giap was required to file his habeas corpus petition on or before November 1, 2001. Giap filed the instant petition on November 9, 2001, eight days after his time to file the petition expired. Thus, Giap's petition is untimely if the statute of limitations is not tolled for at least eight days.
The Second Circuit has held that AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar so that the courts may equitably toll the period." Smith, 208 F.3d at 17. The doctrine of equitable tolling permits courts to extend a statute of limitations beyond the time of expiration to prevent inequity. See Warren, 219 F.3d at 113 (citing Johnson v. Nyack Hospital, 86 F.3d 8, 12 [2d Cir. 1996]). However, equitable tolling applies only in "rare and exceptional" circumstances. Smith, 208 F.3d at 17. To merit equitable tolling of the one-year limitations period, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." Smith, 208 F.3d at 17. In addition, a petitioner must show that he acted with "reasonable diligence" during the period he seeks to toll. Id.
In order to show that he was prevented by extraordinary circumstances from filing his petition on time, a petitioner must "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); see also Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001). Thus, "[i]f 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."Valverde, 224 F.3d at 134; see also Hizbullahankhamon, 255 F.3d at 75.
Petitioner claims that the sole reason he is entitled to equitable relief is that the extraordinary events of September 11, 2001, prevented him from filing his petition timely. In her affirmation in opposition to the respondent's motion to dismiss, petitioner's counsel, who represented petitioner on direct appeal to the Appellate Division, recounted the circumstances that resulted in the delay in filing. According to counsel, although she had completed a memorandum of law in support of petitioner's application for a writ of habeas corpus by July 2001, the petition was not ready for filing until September 10, 2001. Counsel explained that, during that period, she was awaiting the return of certain forms she had sent to petitioner, that the forms were not received by her until after she had returned from her vacation on August 27, 2001, that she was then engaged in the preparation of a document to be filed in connection with another matter and that, between September 4 and September 10, 2001, she "made the final preparations for filing petitioner's habeas corpus petition."
On September 10, 2001, the petition, the memorandum of law and an appendix containing certain legal documents "were sitting on top of my window sill, where I placed all completed items that were to be filed within the week." Counsel, an attorney with The Criminal Appeals Bureau of The Legal Aid Society, explained that her office was on the thirteenth floor of the building located at 90 Church Street, New York, New York, which was directly north of the World Trade Center. Counsel avers that, as a consequence of the attacks on the World Trade Center, 90 Church Street was "completely shut down" between September 11 and September 20, 2001. In addition, in the period following the attacks, 90 Church Street was designated part of a "frozen zone" and was pronounced inaccessible for health and safety reasons. As a result, all of The Legal Aid Society divisions that were housed at 90 Church Street were forced to relocate. Counsel states that she was relocated to an office in Queens County on September 26, 2001. Counsel states further that, although she had access to a computer, she was unable to retrieve petitioner's memorandum of law from her files because the computer server that provided, among other things, the drive that contained this document was not functioning. Moreover, the only "hard" copies of the instant petition, memorandum of law and appendix were in counsel's office at 90 Church Street.
Counsel notes that, as a result of the events of September 11, 2001, all state and federal courts located in lower Manhattan were closed until September 17, 2001. On the day of the attack, New York Governor George E. Pataki ("the Governor") issued Executive Order Number 113, declaring a disaster state of emergency in the State of New York. See Randolph v. CIBC World Markets, 219 F. Supp.2d 399, 401 (S.D.N.Y. 2002). The following day, the Governor issued Executive Order Number 113.7, which continued Executive Order Number 113 and amended it to provide for the temporary suspension of statutes of limitations and time in which to take an appeal. See id. On October 4, 2001, the Governor issued Executive Order Number 113.28, extending his previous order until October 12, 2001, and also modifying CPLR § 201, which governs statutes of limitations, to provide an additional extension of the limitation period, from October 12 until November 8, 2001, for an action by or on behalf of "any person or an attorney for any person [who] has been directly affected by the disaster emergency." Id. (quoting Executive Order Number 113.28).
Since the extensions effected by the Governor's successive orders were applicable to state law claims, they are not relevant in this case.See Randolph, 219 F. Supp.2d at 402. In any event, petitioner's application for habeas corpus relief was filed after the revised expiration date of November 8, 2001.
According to counsel, access to The Legal Aid Society's computer server was partially restored on October 10, 2001. Thereafter, on October 29 or 30, 2001, counsel received boxes containing the documents pertaining to the instant petition. Counsel notes that concerns about asbestos contamination delayed delivery of the documents. Counsel states that "some of the pages were still wet . . . smelled of smoke, felt gritty, and were wrinkled and stained [and, therefore,] were not in any condition to be filed with this Court." According to counsel, she spent "the next six working days, excluding November 6, 2001, election day, when Legal Aid offices were closed and I was serving as a poll watcher for the New York City mayoral election . . . recop[ying] the portions of the petition and relevant legal documents that I could and recreat[ing] those that I could not." Counsel states that the supporting documents were bound on or about November 8th" and were filed, along with the petitioner's habeas corpus petition, on November 9, 2001. Counsel contends that "but for the September 11th attack on the World Trade Center . . . I would have, without doubt, filed petitioner's petition for a writ of habeas corpus approximately six weeks before expiration of the one-year limitation period."
The attacks on the World Trade Center on September 11, 2001, constituted extraordinary circumstances" within the meaning of the doctrine of equitable tolling. See Buckley v. Doha Bank Limited, No. 01 Civ. 8865, 2002 WL 1751372, at *2 (S.D.N.Y. July 29, 2002) (finding, in a Title VII action, that under the doctrine of equitable tolling "the unprecedented circumstances of the World Trade Center disaster and subsequent Court closure" warranted relief from strict application of the relevant statute of limitations); Martinez v. Kuhlmann, No. 99 Civ. 1094, 2000 WL 622626, at *3 (S.D.N.Y. May 15, 2000) (observing that equitable tolling requirements are met most often when some event effectively prohibits the pursuit of habeas corpus relief such as, inter alia, being denied access to materials necessary to file a habeas corpus petition). However, assuming that petitioner was prevented by these extraordinary circumstances from filing his petition for some length of time, it must still be determined whether they "prevented petitioner from filing his petition on time." Valverde, 224 F.3d at 134 (quoting Smith, 208 F.3d at 17) (internal quotation marks omitted) (emphasis inValverde).
As of September 26, 2001, approximately five weeks before the filing deadline of November 1, 2001, petitioner's counsel had been relocated to a new office where she had access to a computer. By October 10, 2001, approximately three weeks before the filing deadline, The Legal Aid Society's computer systems were at least partially restored. Counsel does not say whether she then had access to the files containing the documents she intended to submit in connection with the instant petition. If counsel did have access to such files, then preparation and filing of the petition and supporting documents certainly could have been accomplished within the limitations period.
Even assuming that counsel did not have access to the computer files containing her memorandum of law and other supporting documents on October 10, 2001, counsel still could have filed the petition (a preprinted seven-page form) on time, and then sought leave to submit any supporting documents at a later date. See Padilla v. United States, Nos. 02 Civ. 1142, 94 Crim. 313, 2002 WL 31571733, at *4 (S.D.N.Y. Nov. 19, 2002) ("[E]ven if the delays in receiving whatever documents he believed necessary could be considered extraordinary, [petitioner] has not shown that he made any effort to file his petition without them . . . .");Mandarino v. United States, Nos. 98 Civ. 590, 91 Crim. 868, 1998 WL 729703, at *2 (S.D.N.Y. Oct. 16, 1998) (finding that, from the date on which petitioner knew of the denial of certiorari and, thus, could have prepared and filed a habeas corpus petition, i.e., September 1997, until the filing deadline, i.e., November 1997, petitioner "still had a period of time, albeit a brief one, when he could have filed a timely motion and sought leave to expand on the motion thereafter"). Indeed, a review of the record in this case reveals that counsel to the petitioner never sought permission from the court to extend the time in which she might submit the instant petition, with or without supporting documents.Compare Green v. United States, 260 F.3d 78, 86-87 (2d Cir. 2001) (Kearse, J. concurring) (reasoning that because petitioner, among other things, requested an extension of time to file a habeas corpus petition on two separate occasions, the first occurring four months prior to the deadline and the second occurring more than a month prior to the deadline, petitioner acted with reasonable diligence and was entitled to equitable relief).
Thus, it would appear that the attacks on the World Trade Center on September 11, 2001, although they constituted "rare and exceptional" circumstances warranting equitable tolling, did not prevent counsel from filing the instant application for habeas corpus relief by the filing deadline of November 1, 2001. See Hizbullahankhamon, 255 F.3d at 76 (finding that, even if the alleged deprivation of access to legal materials constituted extraordinary circumstance warranting equitable tolling, petitioner failed to show that this prevented him from filing a timely habeas corpus petition).
Even if it can be said that the events of September 11, 2001, prevented counsel from filing the instant petition timely, it does not appear that counsel acted with the requisite reasonable diligence" in pursuing relief under the federal habeas corpus statute on petitioner's behalf. Counsel asserts that "it was not possible, with the exercise of reasonable diligence, i.e., using a fair, proper and due degree of care but not necessarily exhaustive efforts, to file the petition in two days so as to meet the statutory deadline of November 1, 2001." However, as noted above, even if counsel was unable to retrieve relevant documents from her computer files until some time after October 10, 2001, and did not receive "hard" copies of the documents until October 29 or 30, 2001, she still had open to her a number of options which would have enabled her to file the instant petition on time. For example, counsel could have sought an extension of the time to file or she could have filed the petition without supporting documents and sought leave to expand the petition thereafter.
In addition, a review of the record indicates that the sole claim presented in petitioner's application for a writ of habeas corpus is virtually the same as one of the claims petitioner presented on direct appeal. Hence, counsel, who represented petitioner on direct appeal, could have reconstructed her memorandum of law in support of the instant petition from the brief she submitted to the Appellate Division on petitioner's behalf during state court proceedings at any time during the more than seven weeks that remained in the limitations period following the attacks on the World Trade Center. Counsel does not explain why she was unable to do this and, therefore, why the inaccessible documents were necessary in the preparation of the instant petition. See Ouezada v. Artuz, No. 98 Civ. 2593, 2001 WL 1262402, at *2 (E.D.N.Y. Oct. 17, 2001) ("[P]laintiff does not indicate how the lost legal papers were necessary in the preparation of his petition [since] the petition required virtually no preparation because it merely raise[d] the same claims presented on direct appeal . . . .").
The Court notes that the period of delay involved in this case is relatively brief: Giap's petition was filed just eight days after the expiration of the applicable limitations period, whereas, in other cases decided in this circuit in which courts have declined to apply the doctrine of equitable tolling, the period of delay was much longer. See e.g., Hizbullahankhamon, 255 F.3d at 75 (finding a delay in filing of 635 days); Ross 150 F.3d at 98 (delay of almost two years); Padilla, 2002 WL 31571733, at *1 (delay of "several months"); Quezada, 2001 WL 1262402, at *1 (delay of almost one year); Saldana v. Artuz, No. 99 Civ. 5089, 2000 WL 1346855, at *2 (S.D.N.Y. Sept. 19, 2000) (delay of nearly two years);Martinez, 2000 WL 622626, at *1 (delay of almost five years).
However, the length of the delay involved in filing a habeas corpus petition has not been identified by the courts as a factor to be considered in determining whether, pursuant to the doctrine of equitable tolling, it is appropriate to extend a statute of limitations beyond the time of expiration to prevent inequity. Consequently, this disparity between petitioner's case and other cases involving the timely filing of a habeas corpus petition is not dispositive.
Under the circumstances, counsel has failed to demonstrate that she acted with reasonable diligence" in attempting to file the instant habeas corpus petition on time despite the exceptional difficulties posed by the events of September 11, 2001. Accordingly, equitable tolling is not appropriate in this case and Giap's habeas corpus petition should be dismissed as time-barred.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that respondent's motion to dismiss the petition be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKenna, 500 Pearl Street, Room 1640, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge McKenna. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).