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denying relief when petitioner made "no suggestion, for example, that he could not have redrafted any petition that may have been lost as a result of the action of prison authorities or that he could not have obtained copies of state court briefs, transcripts or other papers that might have been required for that purpose"
Summary of this case from Rush v. LempkeOpinion
99 Civ. 5088 (LAK)
October 8, 2002
ORDER
On March 13, 2000, this Court dismissed petitioner's application for a writ of habeas corpus as time barred. Ramos v. Walker, 88 F. Supp.2d 233 (2000). Judgment was entered two days later, and petitioner appealed. The appeal, however, was dismissed by the Court of Appeals. Petitioner now moves, pursuant to Fed.R.Civ.P. 60(b), to vacate the judgment on the ground that the Court erred in dismissing the petition as time barred. The motion must be denied on at least two independent grounds.
While the Court of Appeals later reinstated the appeal, it denied petitioner's motion for a certificate of appealability, holding, as had this Court, that the petition was not timely filed.
First, a motion under Rule 60(b) is not a substitute for an appeal. Whatever problems petitioner may have had with the Court's ruling should have been raised on his direct appeal. There are only two possibilities: either petitioner raised his concerns to the Second Circuit only to have them rejected or he failed to raise them. If the former is the case, the mandate rule precludes this Court from questioning the Court of Appeals' decision, at least where the basis for doing so would be disagreement with its determination. If the former is the case, he is precluded from raising them here. In any case, even if the Court were to consider petitioner's argument on the merits, it would reject it.
Petitioner was convicted in the state courts in 1992 and concedes that the one year AEDPA statute of limitations began to run on April 24, 1996. Ramos Aff. ¶ 11. On January 3, 1997, he filed a motion pursuant to N.Y. Crim. Proc. L. § 440.10, which tolled the statute. As petitioner concedes, 254 days of the one year limitation period had expired by then. Ramos Aff. ¶ 12. He asserts that his state court collateral attack remained pending until August 28, 1997, when the Appellate Division denied leave to appeal. Id. ¶ 13. At that point, however, the limitations period began to run again.
Petitioner now claims that his legal papers were confiscated on December 15, 1997 and that the confiscated papers, or some other legal papers, were lost in the mail in the course of his being transferred to a different correctional facility in 1998. Ramos Aff. ¶¶ 14-17. He contends further that he realized that his papers might not be recovered in time to file within one year of the final state court decision and sought copies of his papers from family members. Id. ¶ 18. He acknowledges that he received copies of his state court briefs on April 1, 1999 and filed his petition on April 14, 1999. Id. ¶ 19. Based on these circumstances, he makes two arguments: first, that the statute should be equitably tolled from December 15, 1997 to April 14, 1997, and, second, that the confiscation of his papers was an "impediment to filing an application created by State action in violation of the Constitution" which reset the statute of limitations period. See 28 U.S.C. § 2244(d)(1)(B). Neither argument is persuasive.
The Court assumes, arguendo, that the confiscation of petitioner's papers on December 15, 1997 resulted in an equitable tolling of the statute. "Equitable tolling," however, "requires a party to pass with reasonable diligence through the period it seeks to have tolled." Iavorski v. United States Immigration and Naturalization Service, 232 F.3d 124, 134 (2d Cir. 2000) (quoting Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (internal quotation marks omitted)); Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000); Dodds v. Cigna Securities, Inc., 12 F.3d 346, 350 (2d Cir. 1993) (equitable tolling will stay running of statutory period "only so long as the plaintiff has exercised reasonable care and diligence" (internal quotation marks omitted), cert. denied, 511 U.S. 1019 (1994). In this case, petitioner's legal papers, assuming the accuracy of his account, were confiscated on December 15, 1997 at a time when there were only three days left before the statute ran. While he claims that he asked for their return, he was told on February 5, 1998 that he would have to contact a senior staff member to retrieve them (Ramos Aff. ¶ 14), and there is no claim that he ever did so. He then waited, according to his affidavit, a full year following which he was transferred to another facility, at which time his papers allegedly were lost in the mail, without doing a thing, at least so far as his affidavit discloses. In the last analysis, he was able to get copies of what he needed from his family on April 1, 1999, but there has been no showing that this could not have been done in late 1997 or early 1998. His lack of diligence was so extreme that the Court finds no difficulty in concluding that the three remaining days on the limitations period elapsed long before the petition finally was filed on or about April 14, 1999.
The second of petitioner's arguments is somewhat more substantial, but only marginally so. Section 2244(d)(1)(B) provides in relevant part that the one year period of limitations runs from "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." The Court assumes that the seizure of petitioner's legal papers on December 15, 1997, three days before the filing deadline, was unconstitutional state action that prevented petitioner from filing by the deadline. Valverde, 224 F.3d at 133-34. Moreover, reading the statute literally suggests that the seizure reset — rather than tolled the running of — the one year period. Hence, the Court assumes further, without deciding, that the seizure resulted in petitioner having until one year after the impediment imposed by the seizure was removed, which was at least until December 15, 1998. Petitioner's difficulty, however, is that his papers do not even attempt to show for how long the seizure, however immediately disruptive it may have been, continued to prevent him from filing his habeas petition. There is no suggestion, for example, that he could not have redrafted any petition that may have been lost as a result of the action of prison authorities or that he could not have obtained copies of state court briefs, transcripts or other papers that might have been required for that purpose. Indeed, his papers indicate that when he began to worry in early 1999 about the timeliness of any habeas petition, he was able to obtain whatever he needed from his family and then draft and file his petition within a thirteen day period. See Ramos Aff. ¶¶ 18-19. Nor is there any reason to assume that petitioner was dependent upon his family, as opposed to his trial counsel or others, to obtain copies of whatever he needed.
This assumption may be unduly favorable to the petitioner. One unpublished Second Circuit decision describes the effect of Section 2244(d)(1)(B) as one of tolling, not resetting, the statute. Crawford v. Costello, 27 Fed. Appx. 57, 59 (2001).
This is not a case like Acosta v. Artuz, 221 F.3d 117 (2d Cir. 2000), in which the petitioner has not had an adequate opportunity to be heard. The Court here acts in response to petitioner's motion in which he had a full opportunity to set forth whatever facts and argument he desired. Moreover, although petitioner is proceeding pro se, his citation and discussion of Valverde (Ramos Aff. ¶¶ 23-27) makes clear that he fully understands precisely what the issues in this case are and the legal standards that govern them. Thus, he plainly recognizes that he is obliged to demonstrate, as a factual matter, "a causal relationship" between the December 15, 1997 seizure and the delay in filing his petition. (Id. ¶ 26) This he has not done.
The motion pursuant to Rule 60(b) is denied in all respects.
SO ORDERED.