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filing of a post-judgment state court motion does not restart the one year limitations period
Summary of this case from Paige v. SpitzerOpinion
99-CV-4704 (HB)
July 27, 2001
OPINION AND ORDER
I. INTRODUCTION
Michael Scarola ("petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition") on the ground that he was sentenced illegally to consecutive rather than concurrent sentences. The government opposes, arguing that the petition is time-barred under the Antiterrorism and Effective Death Penalty Act's ("AEDPA") one year statute of limitations. This matter was referred to Magistrate Judge Katz who issued a Report and Recommendation ("Report") on May 14, 2001 recommending that the petition be dismissed. For the reasons below, the Report is adopted in its entirety, and the petition is dismissed.
Eric Pinciss, a second year law student at Cardozo School of Law, substantially contributed to the research and writing of this opinion.
II. BACKGROUND
Petitioner, an associate of the Gambino crime family, was involved in various loan sharking, extortion, and gambling activities as a member of a crew headed by Ernest Grillo, Jr. ("Grillo"). On behalf of the crew, petitioner collected usurious debts and received "protection" payments from local narcotics dealers at a Queens bar called the Cork "N" Bottle. When a man named Kevin Hogan threatened to interfere with petitioner's control of the bar and its operations, petitioner consulted Grillo, and the two men agreed that Hogan should be murdered. Hogan was last seen alive walking into a building with petitioner and Grillo on February 16, 1988. Petitioner and Grillo walked out of the building without Hogan who was later found floating in a river, shot through the head.
On November 11, 1988, a grand jury returned a 51-count indictment against petitioner, Grillo, and two others. On January 23, 1989, petitioner pleaded guilty to Enterprise Corruption and Conspiracy to Commit Murder, and on May 18, 1989, petitioner was sentenced in accordance with the negotiated plea agreement to two consecutive terms of imprisonment, the first running from 8 1/3 years to 25 years and the second running from 2 2/3 years to 8 years — an aggregate term of 11 to 33 years in prison. Petitioner appealed his sentence, stating that under Penal Law § 70.30(1)(c), the aggregate maximum terms of consecutive sentences imposed for two or more crimes, one of which was a class B felony, cannot exceed 30 years.
Appellate Division agreed with petitioner that his 33 year maximum term of, imprisonment violated § 70.30(1)(c) but unanimously affirmed the sentence, stating that an aggregate sentence that exceeds the statutory limit is not illegal and is simply "deemed" equal to the 30 year limitation by the Department of Correctional Services and reduced accordingly. People v. Scarola, 186 A.D.2d 78 (1st Dept. 1992); see People v. Moore, 61 N.Y.2d 575, 578. Thus, the Appellate Division reduced petitioner's sentence to 30 years. On February 9, 1993, the New York Court of Appeals denied petitioner's request for leave to appeal. People v. Scarola, 81 N.Y.2d 847 (1993). Petitioner did not thereafter seek a writ of certiorari in the United States Supreme Court.
Five years after the affirmance, petitioner moved in New York State Supreme Court to vacate his sentence pursuant to N.Y.C.P.L. § 440.20 ("§ 440.20 motion") on the ground that New York Penal Law § 70.25 required that his sentences for Enterprise Corruption and Conspiracy in the Second Degree run concurrently rather than consecutively. The court denied the § 440.20 motion on December 5, 1997 after concluding that § 70.25 was not applicable to petitioner's sentence, People v. Scarola, Ind. No. 10732/88, N.Y.S. Sup.Ct. (Dec. 5, 1997). The Appellate Division affirmed on March 10, 1998.
Scarola based his contention on New York Penal Law § 70.25(2), which provides: "When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act. . . . or through an act. . . . which in itself constituted one of the offenses and also was a material element of the other, the sentences must run concurrently."
The court found that the two convictions, Enterprise Corruption and Conspiracy to Murder, did not depend upon the same acts.
On March 5, 1999, petitioner filed the instant petition in which he alleges that the imposition of consecutive sentences denied him due process under the Constitution. On June 29, then Chief Judge Griesa ordered petitioner to show cause by affirmation as to why his petition should not be dismissed as untimely under the AEDPA. In response, petitioner submitted an affirmation, dated July 7, 1999, in which he indicated various reasons why his petition should not be time-barred, the principal reason being that less than one year had elapsed since the denial of his § 440.20 motion. This case was then reassigned to me, and I, in turn, referred it to Magistrate Judge Katz for a Report and Recommendation.
On September 29, 1999, Magistrate Judge Katz ordered respondent to serve and file a response to the petition, addressing only the issue of whether the petition is time-barred under the AEDPA, which petitioner then opposed in a "Traverse." The Traverse revisited petitioner's arguments that the denial of his § 440.20 motion started the clock on the one year limitations period (despite the passage of 5 years between the end of his direct relief and the collateral challenge) and asserted that he is entitled to equitable tolling due to his ignorance of applicable case law. On May 14, 2001, Magistrate Judge Katz issued a Report and Recommendation ("Report") recommending that the petition be dismissed as untimely.
III. DISCUSSION
Standard of Review A. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254
Under the AEDPA, courts deciding federal habeas corpus claims must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the claims either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254 (d)(1), (2); Williams v. Taylor, 529 U.S. 362 (2000).
B. Legal Standard for Reviewing a Magistrate Judge's Report and Recommendation
In reviewing a Report and Recommendation, the district court reviews de novo those parts of the report to which there has been an objection. The Court may accept, reject, or modify the report in whole or in part.See Fed.R.Civ.P.72(b)(1983); 28 U.S.C. § 636(b)(1)(B)(C) (1988). However, the court is not required to conduct a de novo hearing. See Grassia v. Scully, 892 F.2d 16, 19(2d Cir. 1989).
Petitioner's Objections
Petitioner objected to the Report's findings that the petition was time-barred and argued that: (1) the petition was timely because his § 440.20 motion in state court tolled the AEDPA's statute of limitations; (2) his circumstances warrant equitable tolling of the statutory period and one year grace period; and (3) to bar his petition as untimely would violate the Suspension Clause of the Constitution (collectively, the "objections"). None of the objections is persuasive.
A. Timeliness of the Petition
The AEDPA requires that habeas corpus petitions challenging state court judgments be filed within one year "of the date that a judgment becomes final. However, prisoners whose convictions became final prior to the effective date of the AEDPA, April 24, l996, were given a 1 year grace period from the statute's effective date in which to file their "petitions — i.e., until April 24, 1997. See Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000). Since petitioner's conviction became final on May 11, 1993, 90 days after the New York Court of Appeals denied him leave to appeal, petitioner was entitled to the grace period and thus his AEDPA limitations period expired on April 24, 1997. See Williams v. Artuz, 237 F.3d 147, 151 (2nd Cir. 2001). By his own admission, petitioner did not file his § 440.20 motion until June 9, 1997 and did not file the present petition until March 5, 1999.
28 U.S.C. § 2244(d)(l) provides as follows: A one 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 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 such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the federal predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
"[T]he AEDPA limitation period. . . . does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek review via certiorari has expired." Williams, 237 F.2d at 151 (2nd Cir. 2001).
Petitioner, however, argues that the one year statutory period did not begin to run until March 10, 1998, when the Appellate Division denied his state collateral challenge to his sentence. In so arguing, petitioner relies upon the following tolling provision:
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)(2); See Graham v. Sentowski, 2000 U.S. Dist. LEXIS 8332, *5 (S.D.N Y 2000). In petitioner's view it does not matter that he waited until June 9, 1997 to file his § 440.20 motion because such motions may be filed at any time after sentencing. Plaintiff is correct that a § 440.20 motion may be filed at any time after sentencing, but he is mistaken in thinking that the filing of such motion restarts the one year limitations period, which in petitioner's case ended on April 24, 1997. See Davis, 2001 U.S. Dist. LEXIS 2009, at *6-7 ("In order for the one year period to be tolled as a consequence of a properly filed application for State collateral review, the petitioner must seek such review either before or during the one year limitation period."); Williams v. Artuz, 2001 U.S. LEXIS 34, *10 (2d Cir. 2001). As the Second Circuit made clear in Smith v. McGinnis, where the petitioner advanced the same limitations argument as Scarola does here, the "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, 208 F.3d at 17 see Johnson v. Miller, 2001 U.S. Dist. LEXIS 2626, *2 (S.D.N.Y. 2001). Put another way, tolling extends the time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired. Since the statutory period expired before petitioner filed his § 440.20 motion, the tolling provision is inapplicable and the petition is untimely.
N.Y.C.P.L. § 440.20 provides "[a]t any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law."
Moreover, adopting petitioner's view would frustrate the clear intent of Congress in the enactment of the AEDPA to avoid delay in habeas review. Because state post-conviction collateral relief such as § 440.20 motions and petitions coram nobis are available at any time under New York law, were this Court to adopt Scarola's argument, petitioners could avoid the one year limitations period simply by filing a § 440.20 motion in state court at any time after sentencing, and upon its denial by filing a habeas petition in federal court. See Smith, 49 F. Supp.2d at 105.
B. Equitable Tolling
Where a petitioner is able to show that "extraordinary circumstances prevented him from filing his petition on time" the one year limitations period may also be equitably tolled. Smith, 208 F.3d at 17. Such situations are "rare and exceptional." Id. Petitioner states that even if the statute of limitations began to run on April 24, 1997, the day the conviction became final, the one year period should be equitably tolled because he and his attorney were unaware that § 70.25 applied to his conviction at sentencing, and he did not learn to § 70.25 until reading the court's decision in People v. Laureano, 87 N.Y.2d 640 (1996). Whether or not petitioner's sentence violates § 70.25, an issue on which I need not pass judgment, he is not eligible for relief here. First, "ignorance of the law [has] been considered by courts as insufficient to demonstrate that circumstances effectively prohibited petitioner from filing in a timely manner." Celai v. Artuz, 2001 U.S. Dist. LEXIS 8847, * 14 (S.D.N.Y. 2001); see Mendez v. Senkowski, 2000 U.S. Dist. LEXIS 11210, *13 (S.D.N.Y. 2000). As I said in Jackson and reiterated in Davis, "courts have not articulated any basis to provide extensions when a petitioner's claim is one of simple ignorance." Jackson v. Kelly, 2000 U.S. Dist. LEXIS 3806, at *4 (S.D.N.Y. 2000); See also Davis, 2001 U.S. Dist. LEXIS 2009. Second, petitioner has made no showing that "extraordinary circumstances prevented him from filing his petition on time" or that he was unable during the statutory period to conduct the legal research necessary to the filing of his petition. See Smith, 208 F.3d at 17; c.f. Davis, 2001 U.S. Dist. LEXIS 2009, at *5-6 (denying equitable tolling where petitioner's access to the law library was limited, but not foreclosed, because petitioner was confined to administrative segregation).
C. Suspension Clause
The Suspension Clause states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. Petitioner's argument that to time-bar his petition would violate the Suspension Clause fails because the AEDPA's time limit on petitions does not per se violate the Suspension Clause and the facts of this case do not indicate that petitioner lacked a reasonable opportunity to seek habeas relief. See Murphy v. Strack, 2001 U.S. App. LEXIS 10586, *7.8 (2nd Cir. 2001); Jackson, 2000 U.S. Dist. LEXIS 3806, at *4 (citing cases).
In holding that the AEDPA' s one year statute of limitations does not violate the Suspension Clause, Judge Sotomayor stated in Rodriguez v. Artuz 990 F. Supp. 275 (S.D.N.Y. 1998) that "at least where no claim of actual or legal innocence has been raised, as long as the procedural limits on habeas leave petitioners with some reasonable opportunity to have their claims heard on the merits, the limits do not render habeas inadequate or ineffective to test the legality of detention and, therefore, do not constitute a suspension of the writ in violation of Article I of the United States Constitution." Id. at 282.
Petitioner did not explicitly argue that to time-bar his petition would violate the Fourteenth Amendment, but I note that such argument would be without merit. See Brothers v. Florence, 95 N.Y.2d 290, 304 (N.Y. 2000) (holding that a one year grace period for claims immediately time-barred upon the effective date of the amendment strikes the appropriate balance between State and litigants' personal interests for Procedural Due Process purposes.)
III. CONCLUSION
After conducting a de novo review of those parts of the Report to which petitioner objects, and finding no clear error with any part of the Report, I adopt Magistrate Judge Katz's Report in its entirety. The petition for habeas corpus is denied and the Clerk of the Court is directed to close this case.SO ORDERED