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finding that district courts in the Second Circuit "and elsewhere have unanimously held that lack of English proficiency is insufficient to justify the equitable tolling of the one-year limitations period"
Summary of this case from Huang v. U.S.Opinion
00 Civ. 6413 (GEL)
July 20, 2001
Yoke Yew Tan, pro se, for Petitioner.
Morrie Kleinbart, Senior Appellate Counsel, Office of the District Attorney of New York County, for Respondent Floyd G. Bennett
OPINION AND ORDER
Proceeding pro se, Yoke Yew Tan petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1995 state court convictions on two drug charges. The petition must be dismissed as time-barred for the reasons set forth below.
Procedural History
On May 22, 1995, petitioner was found guilty by a New York County jury of one count each of Criminal Sale of a Controlled Substance in the First Degree, and Criminal Sale of a Controlled Substance in the Second Degree, based on his hand-to-hand sale of a total of nearly five ounces of heroin to an undercover police officer. He was subsequently sentenced to concurrent terms of imprisonment totaling 15 years to life.
Petitioner appealed to the Appellate Division, claiming that the trial judge improperly injected himself into the trial when he questioned the undercover officer about his failure to recover the pre-recorded buy money, and that the court's missing witness charge was erroneous. On February 19, 1998, the Appellate Division affirmed in a brief memorandum opinion. People v. Tan, 247 A.D.2d 285 (1st Dept. 1998). Leave to appeal to the Court of Appeals was denied on April 9, 1998 People v. Tan, 91 N.Y.2d 979(1998).
More than fifteen months later, on July 27, 1999, petitioner moved to vacate the judgement of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10, on the ground that he had been denied the effective assistance of counsel. That motion was denied on September 14, 1999. Leave to appeal that decision was denied on December 9, 1999.People v. Tan, 1999 N.Y.App. Div. LEXIS 12893 (1St Dept. Dec. 9, 1999).
Petitioner filed this pro se petition for habeas corpus on May 4, 2000, renewing the claims raised on the direct state appeal and also arguing, as he did in his § 440.10 motion, that he was denied the effective assistance of counsel. After Chief Judge Mukasey entered an order directing petitioner to address the timeliness of his petition, petitioner argued that the statute of limitations should be equitably tolled due to his lack of English proficiency and inability to obtain a translator within the applicable time period.
Discussion
Pursuant to 28 U.S.C. § 2244(d), a petitioner for habeas corpus relief must ordinarily apply for the writ within one year of the date on which his conviction became final. Petitioner's conviction became final on July 8, 1998, the last day on which he could have sought certiorari in the Supreme Court. Williams v. Artuz, 237 F.3d 147, 148-49 (2d Cir. 2001); see also Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000) ("His conviction became final . . . on the expiration of his time to petition for certiorari in the Supreme Court of the United States."). Accordingly, since none of the circumstances that would entail a different starting date apply to this case see 28 U.S.C. § 2244(d)(1)(B)-(D), petitioner had one year from that date to file his petition. 28 U.S.C. § 2244(d)(1)(A). The instant petition is dated May 4, 2000, nearly two years after the conviction became final. Therefore, unless the running of the limitations period was tolled in some way, petitioner's application is time-barred.
Section 2244(d) provides:
(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;
(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 by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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.
Petitioner's application for state post-conviction relief does not toll the limitations period. The statute provides that "[t]he 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). As this language makes plain, however, a state court post-judgment motion merely tolls the statute of limitations and does not start it anew. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ("We therefore hold that 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.").
Petitioner's § 440.10 motion was not filed until July 27, 1999, after the one-year limitations period had already expired, and therefore came too late to toll its running. See Brooks v. Artuz, 98 Civ. 4449, 1999 WL 138926 at *3 (S.D.N.Y. March 15, 1999) (DC) ("This motion is not relevant to this discussion of the tolling provision, however, because it was filed after the running of the statute of limitations."); see also Sorce v. Artuz, 73 F. Supp.2d 292, 297 (E.D.N.Y. 1999) ("Because this filing did not take place until after the running of the [limitations period], it is of no consequence to the timeliness issue.").
Petitioner argues, however, that this Court should regard the limitations period as equitably tolled for some period of time, because of his "inability to speak and understand the [E]nglish language." (Tan Aff Jan. 9, 2001 at 3.) Because § 2244(d) creates a statute of limitations and not a jurisdictional bar, courts may under appropriate circumstances equitably toll its running. Smith, 208 F.3d at 17; see also Warren, 219 F.3d at 113 ("We have recently stated that the limitations period for filing habeas petitions may be equitably tolled."). To obtain the benefit of equitable tolling, however, a petitioner must make two showings: first, he must demonstrate that "extraordinary circumstances prevented him from filing his petition on time"; second, he must show that he "acted with reasonable diligence throughout the period he seeks to toll." Smith, 208 F.3d at 17 (citing Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)).
Only truly extraordinary circumstances justify equitable tolling. See Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (confiscation of petitioner's legal papers by corrections officer can justify equitable tolling). Although no appellate court seems to have ruled on the point,but see Valverde, 224 F.3d at 133 (noting that petitioner there did not contest district court's determination that lack of English proficiency did not justify tolling), district judges in this Court and elsewhere have unanimously held that lack of English proficiency is in sufficient to justify the equitable tolling of the one-year limitations period. See Mendez v. Artuz, 99 Civ. 2472, 2000 WL 99 1336 at *2 (S.D.N.Y. July 19, 2000) (DLC) ("[Petitioner's] statement that he is not proficient in the English language is insufficient to warrant equitable tolling. Such a limitation, under which numerous pro se inmate petitioners suffer, does not amount to `extraordinary circumstances' and accordingly, courts have repeatedly rejected such an argument."). As Chief Judge Mukasey observed, granting equitable tolling for such a common problem would frustrate the objectives of the limitations provision. Martinez v. Kuhlmann, 2000 WL 622626 at *3
See Roman v. Artuz, 00 Civ. 1400(DLC), 2000 WL 1201392 at *2 (S.D.N.Y. Aug. 22, 2000); Martinez v. United States, 00 Civ. 1214(DLC), 2000 WL 863121 at *2 (S.D.N.Y. June 28, 2000); Martinez v. Kuhlmann, 99 Civ. 1094(MBM), 2000 WL 622626 at *3 (S.D.N.Y. May 15, 2000); Zorilla v. Artuz, 99 Civ. 9249(NRB), 2000 WL 328881 at *1 (S.D.N.Y. Mar. 29, 2000);Silvestre v. United States, 55 F. Supp.2d 266, 268 (S.D.N.Y. 1999). See also Mejia v. Pliler, C 00-2316, 2001 WL 125307 at *3 (N.D.Cal. Feb. 13, 2001); Nguyen v. Hickman, C 00-1403, 2001 WL 58969 at *2 (ND.Cal. Jan. 11, 2001); United States v. Chen, 00 Civ. 6815, 2000 WL 1831540 at *3 (ND.Ill. Dec. 11, 2000); Gutierrez v. Elo, 00 Civ. 74240, 2000 WL 1769559 at *3 (E.D.Mich. Oct. 30, 2000); Rangel v. Ramirez, C 00-604, 2000 WL 1375286 at *2 (N.D.Cal. Sept. 18, 2000); Zarvela v. Artuz, 97 Civ. 2393, 1999 WL 1487595 at *2 (E.D.N.Y. Dec. 3, 1999), rev'd on other grounds, ___ F.3d ___, 2001 WL 671762 (2d Cir. June 14, 2001); Ciria v. Cambra, C 98-1021, 1998 WL 823026 at *3 (N.D.Cal. Nov. 10, 1998); Nguyen v. Mervau, C 98-2038, 1998 WL 556628 at *2 (N.D.Cal. Aug. 24, 1998). Most of these cases involve Spanish-speaking inmates, and thus could be distinguished on the ground that the petitioners would not have difficulty finding interpreters. But cases from other districts have applied the same rule to speakers of Chinese, Chen, supra, and Vietnamese, Nguyen v. Mervau, supra.
As petitioner does not satisfy the "extraordinary circumstances" requirement for equitable tolling, it is not necessary to consider whether petitioner exercised "reasonable diligence" throughout the period in question.
Conclusion
Accordingly, the petition for a writ of habeas corpus is dismissed as time-barred.
SO ORDERED.