Opinion
02 Civ. 1142 (CSH), 94 Cr. 313 (CSH)
November 19, 2002
MEMORANDUM OPINION AND ORDER
Angel Padilla, acting pro se, has filed a "barebones" petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Along with that petition, Padilla has filed a motion to excuse the petition's untimeliness and a motion to allow the filing of an amended petition once he is able to more fully develop and support his basic arguments. The government urges the Court to reject the petition as untimely. For the reasons that follow, I conclude that no extraordinary circumstances justify the equitable tolling of the applicable one-year statute of limitations and therefore deny plaintiffs request to file a late petition.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year limitation period on the filing of section 2255 petitions which begins to run on the day the defendant's judgment of conviction becomes final. See 28 U.S.C. § 2255 (1). A petitioner's conviction becomes final when the United States Supreme Court denies his petition for a writ of certiorari. United States v. Leon, 203 F.3d 162, 163 (2d Cir. 2000). Padilla acknowledges that his habeas petition was due on October 2, 2001, one year after the Supreme Court denied his petition for a writ of certiorari. Padilla first submitted his "barebones" 2255 petition on January 10, 2002, but it was returned by the Clerk's Office of this Court for an original signature. The petition with his original signature was returned and officially docketed on February 11, 2002. Using either date as the submission date Padilla's petition was several months late.
The Second Circuit has taken the position that the AEDPA's one-year statute of limitations is not a jurisdictional bar and is therefore subject to equitable tolling. Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001). However the court of appeals has also admonished that equitable tolling applies only in "'rare and exceptional' circumstances" in habeas cases. Id. (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). To qualify for equitable tolling, a petitioner must show that "extraordinary circumstances prevented him from filing his petition on time." Smith, 208 F.3d at 17. The burden is on the petitioner to demonstrate the existence of such extraordinary circumstances. Ortiz v. Senkowski, 01 Civ. 2402, 2001 WL 1267178, *2 (S.D.N.Y. Oct. 22, 2001). Even when extraordinary circumstances are shown, the statute of limitations will be stayed only if the petitioner "acted with reasonable diligence throughout the period he seeks to toll." Smith, id. If despite the exceptional circumstances the petitioner could have filed the petition on time through the exercise of reasonable diligence," the petitioner cannot secure the benefit of equitable tolling. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
In his motion requesting an extension of the limitations period, Padilla argues that his delay in filing resulted from the following circumstances which are not seriously in dispute. Padilla was not notified by his appellate counsel that the Supreme Court had denied his certiorari petition until three months after its denial. In January of 2001, soon after he learned that his conviction was final, he sought the assistance of students participating in the University of Kansas School of Law's Defender Project ("the Project"). Letters constituting a trail of correspondence between Padilla and the Project, as well as Padilla's letters to his former counsel and this Court, are attached to Padilla's motion. The letters demonstrate that the Project's potential assistance was initially delayed by confusion over whether Padilla's appellate counsel was planning to file a habeas petition on his behalf. The Project informed Padilla in late April that its law students could not assist him if he was still being represented by his appellate counsel. It was not until the middle of June that the Project was satisfied that Padilla was no longer represented by counsel and began to review his file in earnest.
The arguments Padilla evidently presented to the Project in support of habeas relief are the same as those he offers in the 2255 petition filed here. Padilla argues that the government committed prosecutorial misconduct in presenting two different theories of one of the murders of which Padilla was convicted — one theory offered through the testimony of Darrell Gray at Padilla's trial and one offered through the testimony of James Albizu at the separate trial of two of his co-defendants. Padilla also contends that his trial counsel provided ineffective assistance in failing to interview certain unspecified witnesses listed on government DD-5 witness reports whom he surmises would have contradicted the government's theory at his trial.
The Project students informed Padilla in a letter dated July 25, 2001 that they would not prepare a 2255 petition for him because their review of the record led them to conclude that his arguments had no merit. However, for the next several months, the Project students continued to review his file in an attempt to determine whether there was sufficient newly discovered evidence to support a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Unlike a 2255 petition, under Rule 33's different time limit, Padilla's motion would not have been due until February 2, 2002. However, in a letter dated October 31, 2001, a Project student carefully evaluated the evidence, explained to Padilla that sufficient grounds for a Rule 33 motion did not exist and notified him that they would not be preparing such a motion for him. The student also stated that he was returning all of Padilla's documents and transcripts to him by certified mail.
Padilla argues that the combination of the three month delay in learning about the denial of certiorari, the initial confusion about whether he was represented by counsel and his ignorance of the law warrant the extension of time. Padilla also seems to suggest that a delay in obtaining certain transcripts and DD-5 witness reports excuses his late filing. Padilla's reasons are not sufficient to justify equitable tolling.
As a preliminary matter, Padilla's suggestion that the process involving the Project law students' review of his case should somehow excuse his untimely filing is unavailing. Habeas corpus petitioners have no right to counsel. Bloomer v. United States, 162 F.3d 187, 192, n. I (2d Cir. 1998). Padilla certainly was not entitled to help from University of Kansas law students. He understandably sought their help in preparing his petition because he is an inexperienced layperson. But there was no guarantee the students would take the case, a consideration that the students made clear from the outset. Padilla was admittedly well aware of his October 2, 2001 deadline for many months before it expired. Despite Padilla's entirely understandable hope that the Project law students his sincere hope that the law students would assist him, the non-delegable responsibility for meeting that deadline rested firmly with him. Padilla should have been prepared for the possibility that the Project would not take his case. He had no reason to assume that it would, students wouldn't take his case. He should have been ready to file a timely 2255 petition if the Project turned him down.
The fact that the Project ultimately rejected Padilla's request for assistance cannot operate to extend his habeas filing deadline. It is common for habeas petitioners, most of whom are not professionally trained lawyers, to request help in preparing their petitions. Consequently a hope for, even an expectation of, assistance that is ultimately refused is not an extraordinary circumstance that would allow tolling for the period of time between the request and the refusal. If it were, countless habeas petitioners would have their deadlines extended indefinitely while they tried in vain to secure assistance. That sort of universally-applicable and limitless excuse would essentially do away with the AEDPA's statute of limitations. Cf Duran v. United States, Nos. 94 Cr. 300, 00 Civ. 407, 2002 WL 867864, *5 (May 3, 2002) (petitioner's lack of familiarity with English language not extraordinary circumstance justifying late filing given that "the majority of the inmates at Fort Dix could make the same claim"); Fennell v. Artuz, 14 F. Supp.2d 374, 377 (S.D.N.Y. 1998) (excuses common among prisoners such as lack of education and lack of legal knowledge cannot be regarded as extraordinary to justify tolling or AEDPA statute of limitations would be undermined); Davis v. McCoy, 00 Civ. 1681, 2000 WL 973752, *1 (S.D.N.Y. July 14, 2000) ("[F]iling delays associated with routine restrictions of prison life generally do not meet the requisite extraordinary circumstances standard.") (quotations omitted); Martinez v. Kuhlmann, 99 Civ. 1094, 1999 WL 156177 (S.D.N.Y. Dec. 3, 1999) (lack of English proficiency and lack of legal research assistance were not sufficiently extraordinary to equitably toll AEDPA statute of limitations) (citing cases).
To be sure, Padilla's appellate counsel's inexplicable three-month delay in notifying that his certiorari petition had been denied, and the Project law students' initial erroneous belief that they could not help him because he was still represented by counsel, were external forces out of Padilla's control that foreshortened his preparation process. But even assuming dubitante that these factors could be considered "exceptional" rather than ordinary, whatever delays were caused by the confusion and the late notification clearly did not affect his ability to file a timely petition. In January 2001, when Padilla finally learned that certiorari had been denied, he understood that his deadline for filing a 2255 petition was in May 2001. In April, he learned that this initial belief was mistaken and that he had until October to file the petition. The confusion about his representation was cleared up by mid-June. Padilla was aware by late July, 2001, more than two months before his petition was due, that the Project would not help him file his petition. The July 25, 2001 letter, in which a Project student informed Padilla that she saw no basis for a petition, also reminded Padilla that the deadline for filing his petition was October 2. A September 11, 2001 letter from another Project student included a blank form for filing a 2255 petition.
Nevertheless, Padilla waited until January of 2002 to submit his petition, more than five months after he learned that the students were not going to assist him and more than a year after he learned his conviction was final. This is not reasonable diligence. While Padilla points to his inexperience in legal matters and makes reference to a delay in obtaining transcripts and DD-5s, he does not explain how these or the other delays, even if extraordinary, prevented him from filing a timely motion. That failure is fatal. "If 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. Padilla gives no indication of what efforts he made to file his petition between July 25, 2001, when the Project students told him they would not be assisting him, and October 2, 2001, the date by which the Project students cautioned Padilla the petition must be filed. Given the abbreviated nature of the petition Padilla eventually filed in January 2002, it is difficult to understand why Padilla could not have filed the same barebones petition in October 2001.
As noted, Padilla cites delays in obtaining DD-5 witness reports and other unspecified "information and transcripts" as one of the reasons for filling the late petition. Memorandum in Support of Leave to File Late § 2255 Motion at 2. This argument does not excuse his default. Padilla does not describe the documents or transcripts sought, the length of or reason for the delay, or his efforts in obtaining them. Without knowing what materials he was missing and how he attempted to obtain them, it is impossible to assess the validity of Padilla's claim that his ability to file his petition was hindered by his late access to them. As the government points out, based on Padilla's claims in support of his habeas petition and some of his correspondence with the law students, the transcripts Padilla needed to support his motion seem to be the transcripts of Darrell Gray's testimony at Padilla's trial and of James Albizu at the trial of Padilla's co-defendants. Padilla would likely have also needed Albizu's post-arrest statement and DD-5s. But the July 25 letter from the law student indicates that the students had reviewed Albizu's DD-5s and post-arrest statement and Darrell Gray's trial testimony by the time they rejected the case. Moreover, the September 10 letter notes that they had by then received the Albizu transcript. Thus, although it is not clear what transcripts and DD-5s he was missing, it appears that Padilla had access to all of the materials that were necessary to make his arguments well before the October 2 deadline.
Even if Padilla did not have all the necessary materials or experienced a delay in obtaining them, those are not extraordinary circumstances warranting equitable tolling. See Davis v. McCoy, 2000 WL 973752, * 2 (prisoner's lack of access to necessary court papers for two years did not constitute an extraordinary circumstance); Fadayiro v. United States, 30 F. Supp.2d 772, 779 (D.N.J. 1998) (fact that petitioner had been unable to obtain transcripts and other records needed for his 2255 petition did not rise to the level of extraordinary circumstances justifying equitable tolling). Moreover, even if the delays in receiving whatever documents he believed necessary could be considered extraordinary, Padilla has not shown that he made any effort to file his petition without them, or filed his petition promptly after he obtained them. In short, Padilla has failed to demonstrate that he was reasonably diligent in attempting to file his petition despite the purported delays in obtaining the materials.
I cannot excuse Padilla's late filing because the reasons he has proffered do not invoke a circumstance so unusual and troubling that he has been "prevented in some extraordinary way from exercising his rights". Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (internal quotations omitted). To the contrary, the circumstances he faced are not uncommon among prisoners without a legal education. Were I to allow tolling of the AEDPA statute of limitations in this case, I would create an exception that would swallow the rule. Equitable tolling is not appropriate here.
Padilla's request to file a late petition is denied. The Clerk of the Court is directed to dismiss his petition with prejudice.
In view of this disposition, Padilla's further "Motion Pursuant to 28 U.S.C. § 2255", served by mail on August 29, 2002, and "Motion under Rule 36 to Correct Clerical Mistakes", served by mail on November 12, 2002, will not be accepted for filing. The Pro Se Office is hereby directed to return those papers to Mr. Padilla. The Court is mailing a copy of this Opinion to him.