Opinion
01 Civ. 547 (GEL)
December 9, 2003
OPINION AND ORDER
Wilson Rodriguez brings this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction for second-degree murder and sentence to imprisonment for twenty-five years to life. Rodriguez filed a habeas petition with the Pro Se Office of the United States Court for the Southern District of New York ("Pro Se Office") on October 10, 2000, arguing ineffective assistance of trial counsel and prosecutorial misconduct involving witness testimony. The petition was docketed on January 23, 2001, and by order of that date Rodriguez was directed to file an affirmation explaining why the statute of limitations should not bar his habeas petition. He timely filed such an affirmation on March 28, 2001. For no comprehensible reason, and no doubt to the great frustration of petitioner, who has been in prison throughout this period, the petition sat in administrative limbo for almost three years from the time that petitioner complied with the Court's request until his petition was finally assigned to the undersigned judge on November 18, 2003.
For purposes of the statute of limitations issue, it is appropriate to give petitioner — the benefit of the earliest arguable filing date for the petition, i.e., the date he states his petition was mailed to the Pro Se Office. See Mandarino v. United States, No. 98 Civ. 590 (LBS), 91 Cr. 868 (LBS), 1998 WL 729703, at *1 (S.D.N.Y. Oct. 16, 1998).
For the reasons that follow, the habeas petition is timely filed. However, because a subsequent letter from petitioner to the Court apparently seeks to amend the petition to add an additional, unexhausted claim, rather than ordering an immediate response to the petition, the Court will stay further proceedings pending exhaustion of state remedies on the additional claim.
I. Timeliness of Petition
Before addressing any other questions, the Court must determine the proper application of the habeas statute of limitations to Rodriguez's case. Under 28 U.S.C. § 2244(d)(1)(A), a habeas petition must be brought within one year of the date on which petitioner's conviction became final "by the conclusion of direct review or the expiration of the time for seeking such review." Rodriguez's conviction became final on August 25, 1997 (ninety days after the New York Court of Appeals denied him leave to appeal on May 27, 1997), when his time to file a petition for certiorari expired. Williams v. Artuz, 237 F.3d 147, 150-151 n. 1 (2d Cir. 2001). Petitioner includes with his affirmation a copy of a letter from his appellate attorney, dated September 9, 1997, advising him of the denial of leave to appeal. (Ex. H to Rodriguez Affirmation of March 21, 2001 ("Rodriguez Aff."). The instant petition was not mailed to the Pro Se Office until October 10, 2000, long after one year had passed.
Rodriguez claims the limitation period should be equitably tolled because his attorney did not promptly advise him of the denial of leave to appeal. But that failure does not affect the limitation period. Rodriguez was aware of the key date for calculating the limitation period within a few weeks of the beginning of the period. Any delay in becoming aware of the denial of leave to appeal thus is irrelevant to the beginning of the limitations period. See Mandarino, 1998 WL 729703, at * 2 (attorney's failure to furnish inmate with notice of denial of writ of certiorari insufficient to toll statute of limitations).
However, the limitations period is tolled when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment . . . is pending." 28 U.S.C. § 2244(d)(2). Rodriguez contends that his petition is timely, because state petitions for post-conviction relief were pending continuously from July 4, 1998, when he moved to vacate judgment pursuant to N.Y. C.P.L. § 440.10, through September 14, 2000, when the Appellate Division denied reargument of its denial of leave to appeal the trial court's denial of the § 440.10 motion. Thus, Rodriguez contends, the limitations period only ran from August 25, 1997, to July 4, 1998, and again from September 14, 2000, until the submission of the instant petition to the Pro Se Office on October 10, 2000, a total of only 339 days, 26 days ahead of the one-year filing deadline.
Whether this analysis is correct depends on the meaning of "pending" in the tolling provision of 28 U.S.C. § 2244(d)(2). That statute tolls the limitations period on federal habeas petitions while an appellant pursues state-court remedies, in order to provide appellants the opportunity to exhaust those remedies before turning to the federal courts. See Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). The Supreme Court has held that the word "pending" in § 2244(d)(2) "cover[s] the time between a lower state court's decision and the filing of a notice of appeal to a higher state court."Carey v. Saffold, 536 U.S. 214, 216 (2002). Carey thus compels the conclusion that the limitations period on Rodriguez's habeas petition was tolled from July 4, 1998, when he moved pro se to vacate the judgment of conviction pursuant to N.Y. C.P.L. § 440.10 in the Supreme Court of the State of New York, until at least June 22, 2000, when the First Department denied petitioner's timely motion to appeal the denial of his § 440.10 motion.
Petitioner describes his § 440.10 motion to vacate judgment of conviction as a coram nobis motion. This nomenclature is incorrect. A coram nobis motion is a flexible common law remedy, which the New York courts distinguish from the specific statutory remedy provided by § 440.10. See People v. Bachert, 69 N.Y.2d 593 (1987).
A more difficult question is whether Rodriguez's motion for reargument of the First Department's denial of his appeal further tolled the limitations period. Rodriguez argues that the habeas limitations period remained tolled between the denial of leave to appeal and the denial of his motion to reargue on September 14, 2000.
The habeas limitations period is only tolled by properly filed motions, and not by "creative, unrecognized motions for leave to appeal."Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000). The question thus becomes whether, under New York state law, a party may properly move to reargue the First Department's denial of a trial court's denial of a § 440.10 motion to vacate judgment. If the First Department's denial of leave to appeal the trial court's denial of the § 440.10 motion was not properly the subject of a motion to reargue, then Rodriguez's motion to reargue would not stop the clock. For the reasons that follow, the Court concludes that the motion to reargue did toll the limitations period.
At least one court in this district has already found that the habeas statute of limitations is tolled while a petitioner seeks reargument before the Appellate Division of a denial of leave to appeal a trial court's denial of a § 440 motion, because such reargument may properly be sought, Gomez v. Duncan, No. 02 Civ. 846, 2002 WL 1424584, at * 3-4 (S.D.N.Y. July 1, 2002) (Peck, M.J.). See also Rodriguez v. People, No. 01 Civ. 9374, 2003 WL 289598, at *13 (S.D.N.Y. Feb. 11, 2003) (Peck, M.J.) (habeas limitations period tolled by motion to reargue First Department's denial of motion for extension of time to file notice of appeal).
Motions for reargument of an appeal before the Appellate Division are permitted under N.Y. C.P.L. § 470.50(1) and N.Y.C.C.R.R. § 600.14(a). While it could be argued that an application for leave to appeal is not an "appeal" within the meaning of those statutes, such applications fit easily within a perfectly natural reading of the word, and New York practice is consistent with the broader reading. Research has not revealed any authority holding that a denial of leave to appeal the denial of a § 440 motion cannot be the subject of a reargument motion before the Appellate Division. In fact, one case indicates that the Second Department recently granted such a reargument motion.See People v. Riley, 765 N.Y.S.2d 890, 892 (2d Dept. 2003) (referring to prior grant of motion to reargue the denial of a motion for leave to appeal the trial court's denial of a § 440.20 motion to set aside sentence). Moreover, the history of this very case indicates that Rodriguez's motion for reargument was properly brought, since the People opposed it, and the First Department denied it, on the merits, and not because it was a nullity or improperly filed. See Order of Sept. 14, 2000, attached as Ex. S to Rodriguez Aff (holding that "there is no question of law or fact presented [in defendant's motion for reargument] which ought to be reviewed by the Appellate Division" and dismissing reargument on that basis.) See also Letter from District Attorney opposing motion to reargue, dated Aug. 16, 2000, attached as Ex. Q to Rodriguez Aff.
Section 470.50(1) provides that "[a]fter its determination of an appeal . . . an appellate court . . . may in its discretion, upon motion of a party . . . order a reargument or reconsideration of the appeal."
Section 600.14(a) provides that "[m]otions for reargument shall be made within 30 days after the appeal has been decided."
The Second Circuit has questioned whether the First Department permits motions to reargue coram nobis motions, Hizbullahankhamon v. Walker, 255 F.3d 65, 73-74 n. 6 (2d Cir. 2001). However, Hizbullahankhamon sought to reargue a coram nobis petition filed directly in the Appellate Division, which is clearly not an appeal, cf. Bachert, 69 N.Y.2d 593; the motion Rodriguez sought to reargue is not a coram nobis motion, but a motion for leave to appeal. At any rate, inHizbullahankhamon, the issue actually before the Court was whether the motion to reargue was timely under § 600.14. After holding that it was not, the Second Circuit went on to hold that no other New York rule permitted the motion to reargue.
Having determined that the reargument motion was permissible under state law, the next question is whether it was properly filed and tolled the habeas clock. Since Rodriguez moved to reargue the denial of leave to appeal the denial of his § 440 motion within the 30-day limit set forth in § 600.14(a), and since the First Department's disposition of the motion does not indicate otherwise, it follows that the motion's "delivery and acceptance [were] in compliance with the applicable laws and rules governing filings," and it is properly filed. Artuz, 531 U.S. at 364. Following the logic in Carey, Rodriguez's appeal of the trial court's denial of the § 440 motion was pending during the period between the First Department's denial of leave to appeal, and his timely motion to reargue that denial, through until the First Department's denial of reargument. Therefore, Rodriguez did have state petitions pending continuously from July 4, 1998, until September 14, 2000, and the limitations period was tolled during that time. Petitioner's calculation of the limitations period is therefore correct, and his habeas petition is timely filed.
II. Additional Claims
Ordinarily, upon determining that the petition was timely filed, this Court would order respondent to answer it. However, the Court has now received petitioner's letter dated November 25, 2003, protesting his innocence and presenting a new claim for habeas relief that was not asserted in the original habeas petition, and apparently has never been presented in state court. Rodriguez claims to have discovered evidence in the district attorney's files indicating that unduly suggestive procedures involving a photographic line-up led certain witnesses to falsely identify Rodriguez. As petitioner insists that the evidence in question is newly discovered, it appears that the state courts have never had the opportunity to examine this claim, and thus it is unexhausted for purposes of the habeas petition.
Rodriguez apparently seeks to amend his petition by presenting this additional issue, thus rendering his petition a "mixed" petition containing both exhausted and unexhausted claims. District courts presented with such mixed petitions have three basic options. If the petition is clearly without merit, the District Court may dismiss the petition on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). If the petition is not meritless on its face, the Court has two options: either to dismiss the petition in its entirety without prejudice, or, if appropriate, retain jurisdiction over the petition and stay further proceedings on the exhausted claims pending the exhaustion of state remedies on any unexhausted claims. Zarvela v. Artuz, 254 F.3d 374, 382 (2d Cir. 2001) The former option normally requires the district court to "include in the dismissal order an appropriate explanation to a pro se petitioner of the available options and the consequences of not following required procedures," such as the effect of the one-year limitations period set forth in 28 U S.C § 2244(d), while the latter option requires the district court's stay to be "explicitly condition[ed] upon . . . the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed."Zarvela, 254 F.3d at 381-82. While the choice between these two options is "generally" to be left to the discretion of the district court, id. at 382, in some instances — including those "where an outright dismissal `could jeopardize the timeliness of a collateral attack'" under the one-year limitations period in 28 U.S.C. § 2244(d) — staying the petition and retaining jurisdiction pending exhaustion "Will be the only appropriate course." Id. at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)).
In this case, it is clear that outright dismissal would make it almost impossible for petitioner to comply with the one-year statute of limitations, since Rodriguez has less than a month left on the limitations period. Under these circumstances, Zarvela compels the Court to stay proceedings on the petition and retain jurisdiction, while Rodriguez returns to the state courts to present his argument and any other unexhausted claims.
Accordingly, it is hereby ORDERED that:
All proceedings on this petition for habeas corpus are stayed, to permit petitioner to exhaust state remedies on his unexhausted claim(s), subject to the conditions (1) that petitioner moves in state court pursuant to New York Criminal Procedural Law § 440.10 to vacate his conviction based on his new claims, within 30 days of this order; and (2) that petitioner returns to this Court to renew his petition within 30 days after the state courts have completed their review of his claims. If petitioner fails substantially to fulfill both of these conditions, the Court will vacate the stay nunc pro tune as of the day of this order, and his petition may be dismissed. See Zarvela, 254 F.3d 381-82. Alternatively, if the Court has misinterpreted petitioner's letter, petitioner may notify the Court within 30 days that he wishes to withdraw the claim asserted in the letter, and the Court will proceed to adjudicate the issues raised in the original habeas petition.
The Clerk of Court is respectfully requested to docket the attached copy of petitioner's November 25, 2003, letter.