Opinion
98 Civ. 7367 (LMM)
March 30, 2001.
REPORT AND RECOMMENDATION
Ronald Holloway brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1981 conviction in New York State Supreme Court, Bronx County ("Bronx Supreme Court"), for murder in the second degree, New York Penal Law § 125.25(1). He contends that the prosecution withheld crucial evidence favorable to the defense. The respondent opposes the petition, arguing it is untimely, procedurally barred, and meritless. Because the petition is time-barred, I recommend that it be dismissed.
Background
On the morning of July 11, 1979, Mr. Holloway shot at Michael Allen, wounding him in the back. Mr. Allen died approximately an hour later. Mr. Holloway was arrested, and on May 31, 1981, he was convicted of murder in the second degree following a jury trial in the Bronx Supreme Court. He was sentenced to an indeterminate term of imprisonment of twenty years to life.
The petitioner appealed his conviction claiming that: (1) his guilt was not proven beyond a reasonable doubt; (2) he was deprived of his right to a fair trial because of prejudicial comments made by the prosecutor during summation; and (3) his sentence was excessive. (Brief for Defendant-Appellant dated August 1983, attached as Exh. 4 to Respondent's Memorandum of Law ("Resp. Memo.")). On October 25, 1983, the Appellate Division, First Department, affirmed the conviction without opinion, People v. Holloway, 97 A.D.2d 682, 468 N.Y.S.2d 290 (1st Dep't 1983), and on January 31, 1984, the New York State Court of Appeals denied leave to appeal. People v. Holloway, 61 N.Y.2d 763, 472 N.Y.S.2d 1044 (1984).
On March 14, 1984, the petitioner filed the first of four motions to vacate his conviction pursuant to section 440.10 of the New York Criminal Procedure Law ("CPL"). He alleged: (1) prosecutorial misconduct based on the failure to disclose evidence favorable to the defense; (2) use of coerced and false testimony by the prosecution; (3) the existence of an undisclosed relation between a juror and a prosecution witness; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel. (CPL § 440 Motion filed on March 14, 1984 ("1st 440 Motion"), attached Exh. 8 to Resp. Memo.). Justice Stanley Parness denied Mr. Holloway's motion in its entirety, holding that the petitioner had failed to document any of his claims and that they were all barred, with the exception of the ineffective assistance of appellate counsel claim, because they could have been raised on direct appeal. (Order dated April 16, 1984, attached as Exh. 10 to Resp. Memo.).
The petitioner's second § 440.10 motion raised the same grounds advanced in his first motion and additionally alleged that: (1) it was improper for a detective to be present during the assistant district attorney's interview of prosecution witnesses; (2) the prosecution witnesses were unreliable; and (3) his conviction was based on inconsistent testimony. (CPL § 440 Motion filed on June 11, 1984 ("2d 440 Motion"), attached as Exh. 11 to Resp. Memo.). Justice Parness denied the petitioner's motion in its entirety for the same reasons set forth in the April 16th order. (Order dated November 13, 1984, attached as Exh. 13 to Resp. Memo.). The petitioner's application seeking leave to appeal this order was denied. (Order dated April 11, 1985, attached as Exh. 14 to Resp. Memo.). The petitioner next filed a motion for a writ of error coram nobis in the Appellate Division, First Department, claiming that he received ineffective assistance of appellate counsel. (Motion for Writ of Error Coram Nobis dated October 19, 1989, attached as Exh. 15 to Resp. Memo.). This motion was denied on May 1, 1990. (Revised Petition, dated November 12, 1998, ("Rev. Pet.") at 3).
On August 1, 1994, the petitioner filed his third CPL § 440.10 motion ("3rd 440 Motion"), alleging jury misconduct based on newly discovered evidence revealing that one of the jurors knew a prosecution witness. (Rev. Pet. at 3). This motion was denied by the Bronx Supreme Court on February 1, 1995. (Affidavit of Nancy Killian dated March 12, 2001 ("Killian Aff."), ¶ 2).
On August 12, 1996, Mr. Holloway filed his fourth and final § 440.10 motion. He alleged that newly discovered evidence established that the victim, Mr. Allen, did not die solely from a gunshot wound. (CPL § 440 Motion filed on August 12, 1996 ("4th 440 Motion"), attached as Exh. 17 to Resp. Memo.).
According to a new witness, Juan Nieves, Mr. Allen injected a large quantity of heroin after he was shot, raising the possibility that a drug overdose contributed to his death. (Affidavit of Juan Nieves dated May 14, 1996 ("Nieves Affidavit"), attached as Exh. 18 to Resp. Memo.). Accordingly, the medical examiner should have undertaken a more thorough "analysis" of the victim's bile to determine the quantity of drugs present before reaching a conclusion as to the cause of death. This motion was denied by the Bronx Supreme Court (Order dated February 24, 1997, attached as Exh. 20 to Resp. Memo.), and the petitioner's application seeking leave to appeal this order was denied by the Appellate Division. (Order dated August 28, 1997, attached as Exh. 21 to Resp. Memo.).
Almost one year later, on August 21, 1998, Mr. Holloway filed the instant petition for a writ of habeas corpus. He has raised substantially the same claim he asserted in his fourth motion to vacate: he argues that in light of the newly discovered evidence that Mr. Allen injected heroin after he was shot, the medical examiner should have tested the quantity and quality of the drugs found in the victim's bile. This omission, he asserts, creates a rational possibility that the jury could have reached a different verdict.
Discussion
The respondent argues that Mr. Holloway's habeas corpus petition is time-barred. The Antiterrorism and Effective Death Penalty Act 1214 (1996) ("AEDPA"), imposes a one-year period of limitations for habeas corpus petitions, running 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 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). The AEDPA further provides that "[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 shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
Congress did not specify what limitations period applies to prisoners whose convictions became final prior to April 24, 1996, the date on which the AEDPA went into effect. The Second Circuit, however, has held that inmates in this category have a one year grace period in which to file their habeas corpus petitions, extending the deadline until April 24, 1997. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Mr. Holloway's conviction became final on May 1, 1984. He filed his petition for a writ of habeas corpus on August 21, 1998, 484 days after the Ross grace period ended. Even assuming that the Nieves Affidavit constitutes newly discovered evidence in accordance with 28 U.S.C. § 2244(d)(1)(D), thereby postponing the start date of the one-year period of limitations, Mr. Holloway's petition would still be time barred. The Nieves Affidavit, is dated May 14, 1996, just three weeks after the AEDPA's effective date. Thus, even if the period of limitations did not begin until May 15, 1996, pursuant to 28 U.S.C. § 2244(d)(1)(D), Mr. Holloway would still need 464 days of tolling for his petition not to be time-barred.
This includes the 90 days during which Mr. Holloway could have petitioned for a writ of certiorari from the United States Supreme Court. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (holding that the AEDPA limitation period does not begin to run until the completion of certiorari proceedings in the Supreme Court or — if the prisoner elects not to file a petition for certiorari — until the time to seek review by way of certiorari has expired).
The Second Circuit has held that the AEDPA's tolling provision applies to both the statute of limitations and to the Ross grace period. See Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999). The respondent claims that Mr. Holloway's first three motions to vacate cannot toll the period of limitations, because (1) "they did not implicate `the pertinent . . . claim' being made in the instant habeas petition," and (2) they "were not pending in state Court during the Ross grace period." (Resp. Memo. at 5 n. 5). While the first assertion reflects a misreading of the AEDPA, the second has ultimately proven to be correct.
The AEDPA allows tolling during the pendency of "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." 28 U.S.C. § 2244 (d)(2) (emphasis added). The pertinent judgment or claim refers to the petitioner's judgment of conviction, not to the claims being raised in the habeas petition. Cf. Deveaux v. Schriver, No. 98 Civ. 7563, 1999 WL 1095580, at *4 (S.D.N.Y. Dec. 3, 1999) (Article 78 in which defendant made FOIL request reviewed neither the "pertinent judgment" nor the "pertinent claim"). In other words, the pending state applications need not have raised the same claims being raised in the habeas petition for purposes of tolling. Such a requirement would thwart the intent of Congress to require petitioner's to exhaust all state post-conviction remedies before coming to federal court. See Bennett, 199 F.3d at 119 ("tolling provision preserves the long-standing federal policy of requiring habeas appellants to exhaust state court remedies prior to initiating suit in federal court") (internal quotations and citations omitted); see also Parisi v. Cooper, 961 F. Supp. 1247, 1248 (N.D.Ill. 1997) (consequences of reading tolling provision reference to "pertinent . . . claim" as limited to only those claims raised in the state collateral proceedings, would be "a result totally inconsistent with the thrust of the 1996 legislation").
The respondent's alternative argument regarding the petitioner's first three § 440 motions is that they were not pending during the Ross grace period. While this assertion is plainly true for the first two motions, it was not clear from the pleadings initially submitted to this Court whether it was accurate with respect to the third motion. The respondent's Affidavit in Opposition to the Petition for Habeas Corpus fails to mention this motion at all. In the corresponding memorandum of law, the respondent asserts that this motion was not pending during the Ross grace period, but fails to provide the date on which it was denied. Likewise, the petitioner mentions his third motion to vacate in his pleadings, but never discloses the date on which it was denied. Furthermore, the order denying the motion was not attached as an exhibit to any of the pleadings. At my request, respondent's counsel submitted an affidavit stating that, upon information and belief, this motion was denied on February 1, 1995. (Killian Aff. ¶ 2). Attached to this affidavit is a computer printout from the Bronx District Attorney's Office listing that same date as the one on which the motion was denied. The petitioner does not dispute this information or provide any contrary evidence.
The 4th 440 Motion was thus the only state motion pending during the Ross grace period. The respondent claims that this motion cannot count towards tolling because it was frivolous and therefore not "properly filed." In light of recent rulings of both the Second Circuit and the Supreme Court, this argument has no merit. In Bennett, the Second Circuit construed "properly filed" to mean simply that "an application for state post-conviction relief recognized as such under governing state procedures has been filed." 199 F.3d at 123. Congress could have drafted the AEDPA to exclude tolling during the pendency of frivolous state appeals, but it declined to do so. Id. at 122. Accordingly, the Second Circuit declined to "engraft a merit requirement into § 2244(d)(2) without some indication of congressional intent to do so." Id. (quoting Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999)).
At the time the respondent filed the opposition brief in this case, the Supreme Court had granted certiorari in Bennett. Artuz v. Bennett, 529 U.S. 1065 (2000). Since then, it decided the case and affirmed the Second Circuit's broad reading of the AEDPA's tolling provision. Artuz v. Bennett, U.S., 121 S.Ct. 361 (2000). Justice Scalia held that an application is properly filed "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." See at 364. As in the instant petition, the state application at issue in Bennett was a CPL § 440.10 motion. Thus, the Court rejected the very arguments that the respondent has made here. Id. at 365. The Supreme Court found it irrelevant that the petitioner's motion had little or no chance of success on the merits, so long as it was properly delivered and accepted by the court. Id. As in Bennett, Mr. Holloway's fourth motion to vacate met this requirement.
The period of limitations in this case was thus tolled from August 12, 1996, when the petitioner filed his fourth motion to vacate, until August 28, 1997, when his motion for leave to appeal the determination of that motion was denied. From May 14, 1996, when the Nieves Affidavit was submitted, until August 12, 1996, 90 days elapsed during which time Mr. Holloway had no motions pending in state court. Likewise, another 358 days passed between August 28, 1997, when his last state application was denied, and August 21, 1998, when the habeas petition was filed. Therefore, a total of 448 days ran without any tolling, thus exceeding the limitation period by 83 days. Accordingly, Mr. Holloway's petition is time-barred.
Mr. Holloway does not get an additional 90 days for the period within which he could have applied for a writ of certiorari from the United States Supreme Court. The 90 day extension, discussed above at note 1, applies only to § 2244(d)(1)(A), which triggers the period of limitation at the "conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). This language is not found in § 2244(d)(2), which tolls the period of limitation during the pendency of a properly filed application for state post-conviction or other collateral review. Thus, under the AEDPA, there is no tolling during the time period within which a certiorari petition could have been filed to appeal the denial of state collateral relief. See Ramos v. Walker, 88 F. Supp.2d 233, 236 (S.D.N.Y. 2000); see also Bunney v. Mitchell, 241 F.3d 1151 (9th Cir. 2001).
Conclusion
For the reasons set forth above, I recommend that Mr. Holloway's application for a writ of habeas corpus be denied and his petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Lawrence M. McKenna, Room 1640, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
JAMES C. FRANCIS IV, U.S. Magistrate Judge