Opinion
9:98-CV-1187 (TJM/GLS)
December 5, 2002
Vincent A. Salerno, Marcy, NY, Petitioner, Pro Se.
Carol A. Cocchiola, Esq., Office of Attorney General Asst. Attorney General, Binghamton, NY, for Respondent.
ORDER and REPORT-RECOMMENDATION
Petitioner, pro se Vincent A. Salerno ("Salerno"), a New York State prison inmate as a result of a 1990 Oneida County Court conviction for first degree sodomy and third degree burglary, filed a writ of habeas corpus asserting nine separate grounds in support of his claim that his conviction should be set aside (Dkt. No. 1) ("Pet."). Respondent has answered Salerno's petition, arguing both that as a procedural matter the petition is untimely, and additionally, that the grounds advanced in the petition do not entitle Salerno to the relief he seeks.
Since Salerno's petition is clearly barred by the one-year statute of limitations applicable to federal habeas petitions in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), the court recommends that his petition be denied and dismissed for this reason. Thus, the court declines to address the substance of the grounds asserted in the petition.
I. Background
On January 25, 1990, Salerno appeared before Oneida County Court Judge John T. Buckley to enter a guilty plea concerning certain criminal charges brought against him as a result of four indictments issued by an Oneida County Grand Jury (see Transcript of Change of Plea of Vincent Salerno (1/25/90) ("Plea Tr.") (reproduced at Dkt. No. 11, Ex. P).
Specifically, on that date, Salerno agreed to plead guilty to the charge of first degree sodomy (returned against him in Indictment No. 89-399) as well as third degree burglary (which charge was the first of three counts returned against him in Indictment No. 88-360), in satisfaction of all charges brought against him by the grand jury in those two indictments.
As a result of Salerno's guilty plea, two other indictments that charged him with, inter alia, second degree assault and rape in the first degree, were dismissed by the County Court (Plea Tr. at P. 8; Dkt. No. 11 at Ex. K).
Judge Buckley then sentenced Salerno to a term of imprisonment of 8 1/3 to 25 years on the sodomy conviction, with a lesser, concurrent sentence on the burglary conviction (Pet. at ¶ 3; Sentencing Tr. (4/16/90) (reproduced at Dkt. No. 11, Ex. P) at P. 43).
Salerno's conviction was affirmed by the Fourth Dep't, Appellate Division. People v. Salerno, 176 A.D.2d 1252 (4th Dep't 1991). The Court of Appeals denied Salerno permission to appeal. People v. Salerno, 81 N.Y.2d 1080 (1993).
On April 22, 1997, Salerno filed a motion to vacate the conviction pursuant to New York's Criminal Procedure Law ("CPL") § 440.10 ("Article 440 Motion") (reproduced at Dkt. No. 12, Ex. W). That motion was denied by Acting Oneida County Court Judge William J. Burke by Decision/Order dated September 3, 1997 (Dkt. No. 12, Ex. BB). The Appellate Division, Fourth Dep't, denied Salerno's application for leave to appeal Judge Burke's decision in its order dated January 5, 1997 [sic]. See People v. Salerno, Nos. C19614; C19913 (4th Dep't Jan. 5, 1997 [sic]) (reproduced at Dkt. No. 12, Ex. DD). Salerno's application for leave to appeal the Appellate Division's decision to the Court of Appeals was dismissed by that court in its decision dated February 17, 1998. People v. Salerno, 91 N.Y.2d 930 (1998).
II. Procedural History
Salerno commenced this proceeding on July 18, 1998 (Pet. at P. 7). Following the issuance of an order pursuant to the rules governing § 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing the respondent to respond to Salerno's pleading (Dkt. No. 3), the Office of the Attorney General for the State of New York ("Attorney General") filed an answer and memorandum of law, requesting dismissal of the petition, and provided the court with various records associated with the relevant state court proceedings (Dkt. Nos. 9-12). Salerno's petition has been referred to this court for the issuance of a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Salerno's petition was stamped by the Clerk's office as having been filed in this District on July 24, 1998 (See Pet. at P. 1). The Second Circuit has held, however, that due to the unique difficulties faced by incarcerated pro se litigants, a prisoner's pleading is deemed to be properly filed at the time he or she hands the papers to the prison authorities for transmittal to the court. Dory v. Ryan, 999 F.2d 679, 681-82 (2d Cir.), modified on reh'g, 25 F.3d 81 (2d Cir. 1994); Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 197 (2001) (extending "prison mailbox rule" to petitions seeking writ of habeas corpus pursuant to 28 U.S.C. § 2254); Harmon v. People of State of New York, 2001 WL 1590522, at *1 n. 2 (E.D.N.Y. Dec. 11, 2001) (citations omitted). Thus, the court finds that Salerno commenced this action when he signed his petition on Saturday, July 18, 1998.
The Attorney General filed copies of the relevant state court records as exhibits to his answer (See Dkt. Nos. 11-12).
III. Discussion
The rules governing habeas petitions were significantly modified by enactment of the AEDPA. One such change was the institution of a one-year statute of limitations applicable to habeas corpus petitions. Specifically, in light of the AEDPA, 28 U.S.C. § 2244 now provides that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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;
* * *
(2) The 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).
In this case, New York's Court of Appeals denied Salerno leave to appeal on June 30, 1993. Salerno, 81 N.Y.2d at 1080. Since his conviction became final prior to April 24, 1996 (the effective date of the AEDPA), Salerno was afforded the benefit of a one-year grace period in which to file his federal habeas corpus petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
As noted above, Salerno's first state court challenge to his conviction following his direct appeal was his Article 440 motion which was signed by Salerno on April 22, 1997. By the time of that filing, 363 days of the AEDPA's statute of limitations had already run. That filing, however, tolled the AEDPA's statute of limitations, see 28 U.S.C. § 2244(d)(2), and the tolling period continued from April 22, 1997, until January 5, 1998, the date on which the Fourth Dep't denied Salerno leave to appeal the County Court's denial of his Article 440 motion (see Dkt. No. 12 at Ex. DD); Carey v. Saffold, ___ U.S. ___, 122 S.Ct. 2134, 2138 (2002) ("an application is pending [for purposes of AEDPA tolling] as long as the ordinary state collateral review process is in continuance — i.e., until the completion of that process") (internal quotations and citation omitted).
Although the order denying Salerno permission to appeal the denial of his Article 440 motion was dated by the Fourth Dep't on January 5, 1997 (see Dkt. No. 11 at Ex. DD), since that order notes that his Article 440 motion was filed in September, 1997, it is clear that the actual date on which Salerno was denied leave to appeal was January 5, 1998.
Salerno sought review of the Appellate Division's order from the Court of Appeals (see Dkt. No. 12 at Ex. EE). However, the statute of limitations was not tolled during the period of time that Salerno's application was pending with New York's Court of Appeals because that application was not a "properly filed" motion for purposes of AEDPA tolling. Id. at Ex. FF (noting that the order sought to be appealed by Salerno was not appealable under CPL § 450.90(1)); Bond v. Walsh, 2002 WL 460046, at *3 (E.D.N.Y. Feb 12, 2002) (holding that AEDPA's statute of limitations cannot be tolled during period of time Salerno sought leave from New York's Court of Appeals to appeal order from Appellate Division that denied his request to appeal the denial of Article 440 motion to the Second Dep't) (citing Hizbullahankhamon v. Walker, 255 F.3d 65, 69-72 (2d Cir. 2001)).
The statute of limitations applicable to Salerno's federal habeas petition therefore continued to run from January 5, 1998, until July 18, 1998, — the date on which he signed his petition.
Based upon this chronology, when the time during which the statute of limitations was tolled is excluded, a total of 557 days passed between the date on which the AEDPA was enacted and the filing of this proceeding. Salerno has therefore exceeded the statute of limitations by 192 days, and therefore, absent a basis for equitable tolling, his petition was untimely filed and must be dismissed on this basis. E.g. Smith v. McGinnis, 208 F.3d 13, 17-18 (2d Cir.), cert. denied, 531 U.S. 840 (2000); Alamo v. Ricks, 2002 WL 1732815, at *2 (E.D.N.Y. July 24, 2002); Bryant v. Eisenschmidt, 10 F. Supp.2d 211, 212-13 (N.D.N.Y. 1998) (McAvoy, C.J.) (petition for writ of habeas corpus filed 407 days after effective date of the AEDPA dismissed as untimely); Nusbaum v. Shriver, 1998 WL 59478 (N.D.N.Y. Feb. 10, 1998) (Pooler, D.J.) (dismissing petition filed 22 days after expiration of AEDPA's statute of limitations); Palmeri v. Greiner, 175 F. Supp.2d 461, 465 (E.D.N.Y. 2001).
"Equitable tolling is a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996). "In the context of a late-filed habeas petition, equitable tolling may sometimes offer an avenue for avoiding Suspension Clause issues in the rare case where strict application of the one year limitations period would create an unreasonable burden." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.) (internal quotation and citation omitted), cert. denied, 531 U.S. 968 (2000).
Equitable tolling is only available, however, when "`extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren, 219 F.3d at 113 (quoting Smith, 208 F.3d at 17); Agramonte v. Walsh, 2002 WL 1364086, at *1 (E.D.N.Y. June 20, 2002). "To merit application of equitable tolling, the petitioner must demonstrate that he acted with reasonable diligence during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances beyond his control prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1606 (2002) (internal quotation and citation omitted); see also, Warren, 219 F.3d at 113 (citing Smith, 208 F.3d at 17).
In this case, Salerno appears to argue that the statute of limitations should be equitably tolled because "[u]p to April 22, 1997, all petitioners [sic] appeals were the sole responsibility of paid counsel Richard N. Bach and petitioner should not be held accountable for counsel Bachs [sic] time delays" (Dkt. No. 14 at P. 1). That argument, however, is unpersuasive.
This court's review of the state court record below reveals that on January 27, 1992, Salerno wrote to his appellate attorney, Richard N. Bach, Esq. and advised him that he was contemplating filing a complaint with the State of New York's Attorney Grievance Committee charging Bach with "malfeasance and misconduct" (Dkt. No. 12 at Ex. W). A grievance was apparently subsequently filed on Salerno's behalf by his mother, Barbara Ziezio, concerning appellate counsel's representation of Salerno. Id. Thereafter, Salerno wrote to Bach and advised him that he had "no choice but to start writing agencies about [Bach's] misconduct in the handling of [Salerno's] case over the past six (6) years." Id. (letter from Salerno to Bach dated March 5, 1996). That letter continued by stating that Salerno and his family would "work very, very hard to see to it that [Bach] d[id] not practice criminal law anymore." Id. Thus, Salerno's own statements in the state court record below firmly establish that since March of 1996, he was not relying upon Bach to represent his interests in collateral challenges to his state court conviction.
Nor can Salerno properly argue that he was impeded, due to his mental state or other factors not under his control, from seeking legal redress regarding his conviction. On January 27, 1997, well before the statute of limitations applicable to the present action had expired, Salerno filed a pro se motion in Oneida County Court seeking, inter alia, copies of "all arrest and investigation reports from law enforcement agencies; all grand jury minutes; and all pretrial motions" relating to the four indictments returned against him (Dkt. No. 11 at Ex. W). Thus, it is clear that Salerno was able to litigate matters relating to his conviction during the time that the statute of limitations was running as to his federal habeas petition.
Although it is not clear to this court whether Salerno now contends that he is suffering from any form of mental impairment, two of the nine grounds asserted in his petition argue that his federal habeas petition should be granted due to his mental state at the time of his trial (See Pet. at Grounds One Three).
According to Salerno, that motion was granted, in part, by the County Court (Dkt. No. 11 at Ex. W).
As noted above, Salerno waited nearly one year after the enactment of the AEDPA before filing his Article 440 motion. He then waited several months after that application was denied before commencing the present action. Since Salerno did not act with reasonable diligence between the time his conviction became final and the date on which he filed this action, the court cannot find that the statute of limitations can properly be equitably tolled in this matter, and accordingly recommends that this action be denied and dismissed as time-barred under the AEDPA.
The Appellate Division denied Salerno leave to appeal the denial of his Article 440 motion to that court on January 5, 1998 (Dkt. No. 11, Ex. DD). The Court of Appeals dismissed Salerno's request to appeal the Appellate Division order dated February 17, 1998. Id. at Ex. FF. Salerno did not sign his federal habeas petition until July 18, 1998, more than six months after the Appellate Division's order, and approximately five months after the Court of Appeals dismissed his application for leave to appeal.
WHEREFORE, based upon the above, it is hereby RECOMMENDED, that Salerno's petition be DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation on the parties by regular mail.
IT IS SO ORDERED.