Opinion
21-CV 04744 (GHW) (JLC)
12-09-2022
KWAMIE MITCHELL, Petitioner, v. SUPT. MARK MILLER, Respondent.
Honorable Gregory H. Woods, United States District Judge:
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Kwamie Mitchell, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, on May 20, 2021. Currently before the Court is Respondent's motion to dismiss the petition on timeliness grounds. For the reasons set forth below, I recommend that the motion be granted and Mitchell's petition be dismissed.
I. BACKGROUND
A. State Court Proceedings
On August 10, 2011, a jury convicted Mitchell of four counts of second degree robbery and two counts of third degree assault. Trial Transcript (“Tr.”) at 840-43, Dkt. No. 20, Ex. 2. Mitchell was convicted in absentia when he absconded from the trial on August 4, 2011 after the prosecution rested its case. Id. at 704. On September 16, 2011, Mitchell was sentenced in absentia to an aggregate sentence of 16 years in prison followed by five years post-release supervision. Id. at 852-54. Mitchell was received into custody on August 29, 2014. Memorandum of Law In Support of Motion to Dismiss the Petition For a Writ of Habeas Corpus (“Resp. Mem.”), Dkt. No. 19, at 8-9.
Citations to this exhibit refer to pagination created by ECF.
On June 30, 2016, Mitchell, through counsel from the Office of the Appellate Defender (“OAD”), appealed his conviction to the Appellate Division, First Department. State Court Record (“SR”) at 116-55, Dkt. No. 20, Ex. 1. The Appellate Division unanimously affirmed the conviction on April 27, 2017. Id. at 220-23. On May 24, 2017 Mitchell sought leave to appeal his case to the New York Court of Appeals. SR at 224-25. On June 29, 2017, Mitchell's appellate counsel sent a supplemental letter in support of the application for leave to appeal. Id. at 227-34. The Court of Appeals denied Mitchell's application on August 15, 2017. SR at 238.
On February 17, 2021, Mitchell filed a pro se writ of coram nobis arguing ineffective assistance of appellate counsel and insufficient evidence. Id. at 243-47. The Appellate Division, First Department, denied Mitchell's application on May 6, 2021. Id. at 279.
B. Federal Court Proceedings
Mitchell filed a petition for a writ of habeas corpus on May 20, 2021 asserting two grounds for relief: (1) ineffective assistance of appellate counsel, and (2) fundamental miscarriage of justice and “new law issued.” Petition for Writ of Habeas Corpus (“Habeas Pet.”), Dkt. No. 1 at 6, 8. On December 10, 2021, the Court issued an order directing Mitchell to file a declaration within 60 days showing why the petition should not be dismissed as time-barred. Dkt. No. 7. In response to this order, Mitchell submitted a declaration on December 27, 2021. Declaration/Order Showing Cause/Affirmation dated December 27, 2021 (“Pet. Decl.”), Dkt. No. 8. The case was referred to me for a report and recommendation on February 18, 2022. Dkt. No. 12.
While the petition that was filed on the docket on May 26, 2021 was not dated, Mitchell sent a letter to the Court dated May 20, 2021, Dkt. No. 1, Ex. 1, along with exhibits that he had intended to include with the petition. This correspondence included the last several pages of his petition, which is dated May 20, 2021. Dkt. No 1, Ex. 1 at 8. Therefore, pursuant to the prison-mailbox rule, under which a petition is considered to be “filed” by a pro se prisoner on the date it is given to a prison official for mailing (which I infer to be on the date it was signed), see, e.g., Houston v. Lack, 487 U.S. 266, 271-72 (1988), the filing date of the petition is deemed to be May 20, 2021.
Citations to this declaration refer to pagination created by ECF.
On May 31, 2022, Respondent moved to dismiss the petition as untimely and filed a memorandum of law in support of the motion. Dkt. Nos. 18-19. In opposition to the motion, Mitchell filed a Traverse in Support of Petitioner's Writ of Habeas Corpus (“Pet. Trav.”) on June 14, 2022. Dkt. No. 23. Respondent filed a letter in further support of the motion on June 21, 2022. Dkt. No. 24, Letter Reply (“Reply”).
II. DISCUSSION
A. Legal Standards
1. AEDPA Statute of Limitations
The AEDPA imposes a one-year statute of limitations on federal habeas corpus petitions filed by prisoners in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). The one-year filing period begins on the latest of four dates:
(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)(A)-(D). In calculating the one-year period, “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.” 28 U.S.C. § 2244(d)(2). Therefore, “proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run.” Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
2. Equitable Tolling
The AEDPA's statute of limitations “does not set forth an inflexible rule requiring dismissal whenever its clock has run.” Holland v. Fla., 560 U.S. 631, 645 (2010) (internal quotations omitted). The statute of limitations period is subject to equitable tolling when a petitioner demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Rivas v. Fischer, 687 F.3d 514, 538 (2d Cir. 2012) (citations omitted).
The Second Circuit sets a “high bar to deem circumstances sufficiently ‘extraordinary' to warrant equitable tolling.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011). 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.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). To demonstrate this causal relationship, a petitioner seeking equitable tolling must have “exercised reasonable diligence in attempting to file after the extraordinary circumstances began.” Id. As discussed further below, the petitioner has the burden to prove both extraordinary circumstances and reasonable diligence. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
a. Extraordinary Circumstances
“Whether a circumstance is extraordinary depends not on ‘how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the petitioner endeavoring to comply with AEDPA's limitations period.'” Rivas, 687 F.3d at 538 (quoting Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008) (petitioner's inability to read English, while not uncommon, was serious obstacle in complying with AEDPA's statute of limitations)). Still, courts only rarely find extraordinary circumstances. See Alvarez v. Perez, No. 14-CV-8088 (VB) (JCM), 2017 WL 1384003, at *5 (S.D.N.Y. Mar. 20, 2017) (collecting cases), adopted by 2017 WL 1379387 (Apr. 14, 2017). Courts in this District set a high bar for extraordinary circumstances, requiring that they effectively preclude the petitioner from filing a habeas petition. See id. at *6.
b. Reasonable Diligence
Even in the case of extraordinary circumstances, “[a] petitioner must also show that he acted with reasonable diligence.” Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir. 2003). “Reasonable diligence” means the petitioner acted “as diligently as reasonably could have been expected under the circumstances[.]” Id. (emphasis in original). If a petitioner does not exercise reasonable diligence after the extraordinary circumstance begins, courts will deem “the link of causation” to be broken, and thus determine that “the extraordinary circumstances . . . did not prevent timely filing.” Valverde, 224 F.3d at 134. However, “[t]he standard of diligence appropriate for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Williams v. LaValley, No. 11-CV-104 (RJH) (JLC), 2011 WL 2671511, at *6 (S.D.N.Y. June 28, 2011) (cleaned up), adopted by 2011 WL 6399686 (Dec. 20, 2011). Courts must therefore consider the specific factual circumstances when evaluating whether a petitioner, despite extraordinary circumstances, made “all reasonable efforts” to file a habeas petition. See e.g., Baldayaque, 338 F.3d at 153 (remanding with instructions for lower court to consider specific circumstances).
2. Equitable Exception
Equitable exceptions apply in cases “where a petitioner appears to be the ‘victim[ ] of a fundamental miscarriage of justice.'” Doe v. Menefee, 391 F.3d 147, 160 (2d Cir. 2004) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). Petitioners who qualify for this exception have suffered a miscarriage of justice if “they are actually innocent of the crimes for which they were convicted.” Id. To establish a claim of actual innocence, “a petitioner must present ‘new reliable evidence that was not presented at trial' and ‘show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'” Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995)). The Supreme Court has made clear that the fundamental miscarriage of justice exception should be applied rarely and only in extraordinary cases. Schlup, 513 U.S. at 299.
B. Analysis
As discussed below, after Mitchell's conviction became final on November 13, 2017, he had one year to file his petition for habeas corpus. See 28 U.S.C. § 2244(d)(1)(A). His failure to file for habeas relief before November 13, 2018, therefore, violated the AEDPA's statute of limitations. Nonetheless, Mitchell contends that his petition should not be time-barred because he is entitled to equitable tolling. But Mitchell has not demonstrated the extraordinary circumstances and reasonable diligence that would entitle him to equitable tolling. Moreover, he does not qualify for an equitable exception under the claim of actual innocence because he has not presented any new evidence that was not presented at trial.
The Court does not address the merits of Mitchell's petition in this report and recommendation because timeliness is a threshold issue and a finding that the petition is time-barred, as this Court recommends, would be dispositive. See, e.g., Jimenez v. Lilley, No. 16-CV-8545 (AJN) (RWL), 2018 WL 2768644, at *4 (S.D.N.Y. June 7, 2018).
1. AEDPA Statute of Limitations
The New York Court of Appeals denied Mitchell's leave to appeal on August 15, 2017. SR at 238. Mitchell's conviction therefore became final 90 days later, on November 13, 2017, the date on which his time expired to petition the United States Supreme Court for a writ of certiorari. See, e.g., Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000). Pursuant to 28 U.S.C. § 2244 (d)(1)(A), Mitchell had one year after his conviction became final-until November 13, 2018-to file his petition for habeas corpus. Mitchell appears to contend that there was an “unreasonable” six-year delay in affirming his conviction. Pet. Trav ¶ 4. However, the time during which his direct appeal was pending has no bearing on the AEDPA's statute of limitations. 28 U.S.C. § 2244(d)(2). Thus, Mitchell's failure to file his petition by November 13, 2018, violates the requirements of 28 U.S.C. § 2244(d) and renders his petition untimely.
Respondent notes that the Court's December 10, 2021 order directing Mitchell to address the timeliness of his petition stated that the conviction became final on January 15, 2018, 150 days after his leave to appeal was denied. Resp. Mem. at 14 n.9. During the COVID-19 pandemic, the Supreme Court temporarily extended the period for seeking certiorari from 90 to 150 days “for any case where the petition was due on or after March 19, 2020.” Shoy v. Annucci, No. 22-CV-0084 (LTS), 2022 WL 1004615, at *1 (S.D.N.Y. Apr. 4, 2022). However, Mitchell's petition was due before March 19, 2020, so the 150-day extension did not apply. Even assuming arguendo that the 150-day extension did apply to Mitchell, then his petition would have been due on January 15, 2019, and as Respondent notes, is still untimely.
This remains true despite the fact that Mitchell filed a writ of coram nobis in state court on February 17, 2021. See SR at 243. “Though [a coram nobis] application would normally toll a limitations period,” Mitchell filed his writ of coram nobis more than two years after the expiration of the November 13, 2018 limitations period. Alvarez, 2017 WL 1384003, at *5. “This filing, therefore, does ‘not reset the date from which the one-year statute of limitations begins to run.'” Id. (quoting Smith, 208 F.3d at 17).
2. Equitable Tolling
Despite the expiration of the statute of limitations in this case, Mitchell contends he is entitled to equitable tolling. See Pet. Trav. ¶¶ 8-9. As discussed further below, Mitchell has not demonstrated that there were extraordinary circumstances that stood in his way and prevented timely filing, or that he exercised reasonable diligence. Thus, he is not entitled to equitable tolling.
a. Extraordinary Circumstances
Mitchell alleges a number of extraordinary circumstances that prevented him from timely filing his habeas petition: 1) a lack of legal knowledge; 2) a violation of his rights to notice and an opportunity to be heard; and 3) the conduct of his appellate counsel. See Pet. Decl. at 2-3; Pet. Trav. ¶¶ 4-8. Mitchell has failed, however, to establish that any of these reasons constitutes “extraordinary circumstances” that entitle him to equitable tolling.
i. Lack of Legal Knowledge
In support of the argument that his petition should not be time-barred, Mitchell claims that he has “no type of legal litigation knowledge” and was therefore unaware of “any statutory time limit” for filing his petition. Pet. Decl. at 2. This argument is unavailing. Courts in this Circuit have repeatedly observed that an unintentional or mistakenly late filing “does not rise to the level of an extraordinary circumstance meriting equitable tolling.” Alvarez v. United States, No. 14-CV-2491 (KMK), 2019 WL 1428350, at *5 (S.D.N.Y. Mar. 29, 2019) (citing Hickey v. Senkowski, No. 02-CV-1437 (DC), 2003 WL 255319, at *4 (S.D.N.Y. Feb. 4, 2003)); see also Clemente v. Lee, No. 18-CV-1978 (AMD), 2019 WL 181304, at *5 (E.D.N.Y. Jan. 9, 2019). Courts have reached the same conclusion regardless of whether a petitioner was pro se. See, e.g., Wood v. Conway, No. 08-CV-8377 (DAB) (JLC), 2010 WL 11723617, at *4 (S.D.N.Y. May 12, 2010) (“[a] habeas petitioner's pro se status does not merit equitable tolling”) (citing Smith, 208 F.3d at 18), adopted by 2011 WL 2802933 (July 14, 2011). Mitchell's argument that his lack of legal knowledge entitles him to equitable tolling therefore fails.
ii. Notice and Opportunity to be Heard
Mitchell alleges that his rights to notice and an opportunity to be heard under the 14th Amendment of the U.S. Constitution were violated during his state court appeal. See Pet. Trav. ¶ 6. In the Second Circuit, a violation of a petitioner's 14th Amendment rights, such as the “intentional obstruction of a prisoner's access to the courts,” may constitute extraordinary circumstances. See Valverde, 224 F.3d at 133-34 (extraordinary circumstances when corrections officers violated petitioner's 14th Amendment right by confiscating handwritten habeas petition and legal papers right before filing deadline) (citing Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987)). Here, Mitchell alleges his rights to notice and an opportunity to be heard were violated because his appellate counsel never sent him the following documents: 1) a copy of his appellate counsel's two-page application for leave to appeal; 2) a response letter from the clerk of the court advising appellate counsel that the leave application was assigned to the Chief Judge of the New York Court of Appeals; 3) a copy of the “memorandum of law” in support of the leave application; and 4) the district attorney's response to the leave application. See Pet. Trav. ¶¶ 57; SR 224-37. However, even taking these allegations as true, Mitchell has not demonstrated a causal relationship between any failure on the part of his appellate counsel and his ability to timely file his habeas petition. See Valverde, 224 F.3d at 134. The appellate counsel's alleged failure to send documents was not an “intentional obstruction” of Mitchell's access to the courts. Therefore, there was no violation of Mitchell's 14th Amendment rights to notice and an opportunity to be heard.
Mitchell suggests that he has a statutory right under New York law to a copy of the aforementioned materials. See Pet. Trav. ¶ 6 (citing CPL § 460.20). However, New York Criminal Procedure Law § 460.20 only requires notice to the respondent of a petitioner's application for leave to appeal; it provides no right for a petitioner represented by counsel to receive or review an application for leave to appeal before it is submitted to the court. See N.Y. Crim. Proc. Law § 460.20(3).
Notably, Mitchell does not allege that he failed to receive notice of the appellate court's decision, a fact that may constitute extraordinary circumstances. For example, in Diaz v. Kelly, the Second Circuit held that a “prolonged delay by a state court in sending notice of a ruling that completes exhaustion of state court remedies can toll the AEDPA limitations period.” 515 F.3d at 155 (citations omitted). In fact, Mitchell appears to acknowledge in his papers that he did receive the decisions of his state court proceedings. See Pet. Decl. at 3. As such, Mitchell cannot establish that his alleged lack of notice is an extraordinary circumstance.
In claiming a constitutional violation of his 14th Amendment rights, Mitchell cites Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). Pet. Trav. ¶ 6. In that case, the Court declared that “[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” 400 U.S. at 437. Accordingly, the Supreme Court struck down a state statute authorizing a police chief to post a notice in all retail liquor outlets that sales of liquor to the appellee were forbidden. Id. at 439. The Court reasoned that such a “‘posting' or characterization of an individual will expose him to public embarrassment and ridicule,” and therefore “procedural due process requires that . . . the individual involved must be given notice of the intent to post and an opportunity to present his side of the matter.” Id. at 436 (citations omitted). Mitchell's circumstances are not analogous to the appellee in Constantineau and therefore his reliance on this case is misplaced.
iii. Appellate Counsel's Conduct
Mitchell alleges that the negligence of his appellate counsel “was an extraordinary circumstance, as required for equitable tolling.” Pet. Trav. ¶ 8 (quoting Nickels v. Conway, 480 Fed.Appx. 54 (2d Cir. 2012)). “Attorney negligence may constitute an extraordinary circumstance when it is ‘so egregious as to amount to an effective abandonment of the attorney-client relationship.'” Samo v. Keyser, 305 F.Supp.3d 551, 558-59 (S.D.N.Y. 2018) (quoting Martinez v. Supt. Of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015)), adopted by 2018 WL 4565143 (Sept. 21, 2018). The Second Circuit has recognized three types of attorney error to be so extraordinary: “(1) failure to file a timely habeas petition despite the client's specific order; (2) misleading the client as to the status of the petition or case; and (3) failure to communicate with and keep the client reasonably informed about the case.” Williams, 2011 WL 2671511, at *4 (internal citations omitted). However, Mitchell cannot establish that his appellate attorney's conduct rose to the level of what the Circuit has found to be an extraordinary circumstance.
First, Mitchell cannot establish that his appellate counsel failed to file a timely habeas petition on his behalf despite specific orders to do so. In Baldayaque, the Second Circuit found that failure by petitioner's counsel to file a habeas petition on his behalf “[i]n spite of being specifically directed by his client's representatives” to do so constituted extraordinary circumstances. Baldayaque, 338 F.3d at 152. Similarly, the Court in Nickels held that appellate counsel's failure to file a habeas petition “despite . . . apparent direction from [the petitioner], to do so” was an extraordinary circumstance that entitled the petitioner to equitable tolling. Nickels, 480 Fed.Appx. at 56. Here, however, there is no evidence that Mitchell ever asked or instructed anyone from OAD to file a petition on his behalf. Furthermore, Mitchell does not allege that OAD ever communicated to him an intent or promise to do so. Therefore, Mitchell cannot establish that his appellate counsel committed an extraordinary error by failing to timely file a habeas petition despite specific orders to do so. See Williams, 2011 WL 2671511, at *5 (equitable tolling unwarranted where no evidence that petitioner specifically requested that counsel file his habeas petition).
Second, there is no evidence that Mitchell's appellate counsel misled him as to the status of the petition or case. Attorneys who “affirmatively and knowingly” mislead their clients by promising that they would file a habeas petition before a specific deadline commit an extraordinary error entitling the petitioner to equitable tolling. See, e.g., Dillon, 642 F.3d at 364. In Dillon, the court determined petitioner's counsel had committed an extraordinary error by failing to file his client's habeas petition before the expiration of the AEDPA statute of limitations despite assuring petitioner that “he would file the petition prior to [the deadline].” Id. at 363 (internal quotations omitted). The court determined that the petitioner's detrimental reliance on “the lawyer's deeply misleading statement to his client that he would not wait until the last day to file the petition” was an extraordinary circumstance warranting equitable relief. Id. at 364. Here, there is no evidence in the record to suggest that such a communication or such reliance existed. While Mitchell expresses frustration with the lack of communication from his appellate counsel, he does not allege that OAD ever “affirmatively” or “knowingly” misled him about the status of his petition or case. Dillon, 642 F.3d at 364; See Pet. Trav. ¶¶ 46, see also Pet. Decl. at 3. Therefore, Mitchell is not entitled to equitable tolling on the basis that his attorneys misled him about his petition or case.
Finally, Mitchell cannot establish that OAD's failure to sufficiently communicate with him rises to the level of extraordinary circumstances. Mitchell first alleges that his appellate counsel did not advise him of his right to “move forward to a federal court.” Pet. Decl. at 3. However, OAD had no obligation to do so as “the right to appointed counsel extends to the first appeal of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Even if Mitchell was unaware of the law regarding representation in collateral proceedings, as discussed above, a petitioner's lack of education or familiarity with legal research and procedures does not warrant a finding of extraordinary circumstances. See, e.g., Fennell v. Artuz, 14 F.Supp.2d 374, 377 (S.D.N.Y. 1998) (court refused to give petitioner's “‘excuse' of being uneducated and not familiar with legal research and legal procedures” any weight when determining if petition was timely).
Next, Mitchell alleges that during the appellate process “communications between OAD and Petitioner became dry, as if Petitioner did not have a direct appeal pending,” although he “was asking whether a higher court state appeal took place.” Pet. Trav. ¶ 4. While abandonment by counsel may constitute an extraordinary circumstance, “[m]erely describing an attorney's act as ‘abandonment' does not make it so.” Romero-Padilla v. United States, No. 05-CR-1262 (DLC), 2014 WL 774957, at *4 (S.D.N.Y. Feb. 27, 2014). In Holland, the Supreme Court found attorney abandonment where counsel “failed to communicate with his client over a period of years, despite various pleas from [the petitioner] that [counsel] respond to his letters.” Holland, 560 U.S. at 652. Mitchell does not claim that he attempted to contact OAD “numerous” times to seek “crucial information” or “direction” regarding his habeas petition. Id. at 653. In fact, Mitchell has not alleged that he tried to contact OAD at all after his leave of appeal was denied. Moreover, the record does not indicate that Mitchell had any reason to believe his representation by OAD extended beyond the first right of appeal.
Mitchell's case is distinguishable from cases where courts have found effective abandonment. For example, in Martinez, the court found extraordinary circumstances where counsel stopped responding to petitioner's letters after being hired to seek post-conviction relief, discussing a writ of coram nobis with petitioner, and telling petitioner he was “working very hard to make [federal habeas corpus relief] happen.” Martinez, 806 F.3d at 30. Unlike in Martinez, nothing in the record here suggests that OAD indicated to Mitchell that it would represent him beyond his direct state appeal, or that Mitchell believed he was still represented by OAD after his state appeal. Cf. Maples v. Thomas, 565 U.S. 266, 271 (2012) (“lawyers [that the petitioner] believed to be vigilantly representing him had abandoned the case without leave of court, without informing [him] they could no longer represent him, and without securing any recorded substitution of counsel.”); Ainsley v. La Manna, No. 18-CV-3738 (PKC), 2019 WL 1407325, at *5 (E.D.N.Y. Mar. 28, 2019) (petitioner's post-conviction counsel “essentially disappeared” after coram nobis petition was denied and was nonresponsive to petitioner and family as habeas deadline approached). For these reasons, Mitchell is unable to establish that he was “essentially abandoned” by his counsel. Maples, 565 U.S. at 282.
In sum, Mitchell has not alleged any conduct by his appellate attorneys that would qualify as the type of conduct constituting extraordinary circumstances.
b. Reasonable Diligence
Regardless of whether Mitchell sufficiently demonstrated an extraordinary circumstance, he “has failed to demonstrate that he acted with reasonable diligence throughout the period he seeks to toll.” Williams, 2011 WL 2671511, at *6.
A petitioner seeking equitable tolling must demonstrate that he diligently pursued his legal rights throughout the entire limitations period he seeks to toll. See, e.g., Verrilli v. Gonyea, No. 17-CV-7886 (VB) (JCM), 2019 WL 8580409, at *7 (S.D.N.Y. Dec. 13, 2019) (citing Baldayaque, 338 F.3d at 150), adopted by 2020 WL 1957570 (Apr. 23, 2020). Despite receiving notice that the Court of Appeals denied his application for leave to appeal on August 15, 2017, SR at 238; see also Pet. Decl. at 3, Mitchell did not file his writ of coram nobis until February 17, 2021. SR at 243. He waited more than two years after the AEDPA statute of limitations expired, not filing his habeas corpus petition until May 20, 2021. See Dkt. No. 1. That Mitchell “waited far longer than a year to take action runs afoul of the principle adopted by a number of courts, which generally have found that periods of delay lasting for more than a year do not exhibit due diligence.” Samo, 305 F.Supp.3d at 562 (cleaned up) (collecting cases). Even if Mitchell was unaware of the status of the state appeal, “nothing stopped [him] from writing the Court of Appeals earlier and there is no evidence he ever contacted [OAD] to find out the disposition of his leave application.” Samo, 305 F.Supp.3d at 562. Courts in this District have found that “[i]naction over . . . an extended period of time does not justify the rare remedy of equitable tolling.” Florio v. Cuomo, No. 10-CV-0998 (SHS) (JLC), 2010 WL 5222123, at *12 (S.D.N.Y. Nov. 16, 2010) (collecting cases), adopted by 2010 WL 5222122 (Dec. 22, 2010) and 2011 WL 223217 (Jan. 24, 2011). Mitchell is therefore unable to demonstrate that he diligently pursued his legal rights throughout the entire limitations period.
Though Mitchell alleges he was unaware “whether a higher court state appeal took place,” Pet. Trav. ¶ 4, he does acknowledge receiving notice of the decisions by mail. See Pet. Decl. at 3.
3. Equitable Exception
Mitchell further asserts he is innocent of the crimes with which he was charged and is therefore entitled to a de novo review of his habeas petition under the doctrine of equitable exception. See Pet. Trav. ¶ 12. “To make a colorable claim of actual innocence, a petitioner must establish that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt” and “must also present new reliable evidence . . . that was not presented at trial.” Alvarez, 2017 WL 1384003, at *6 (cleaned up). Here, as in Alvarez, Mitchell has not alleged any new facts or provided any new evidence that demonstrates his innocence. The Court therefore “has no reason to question the jury's verdict, and Petitioner cannot rely on any potential ‘actual innocence' exception to the AEDPA as a basis for overcoming the one-year statute of limitations.” Id.
III. CONCLUSION
For the reasons stated herein, the petition should be dismissed as time-barred.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections (plus three days because the Report is being mailed to Mitchell). See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. 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 Gregory H. Woods and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Woods.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
If Mitchell does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for the Respondent. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York. Dated: New York, New York December 9, 2022