United States District Court, Southern District of New York
January 12, 1999
WILLIAM CROMWELL, PETITIONER,
JOHN P. KEANE, RESPONDENT.
The opinion of the court was delivered by: Rakoff, District Judge.
Petitioner, pro se, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on December 5, 1997. By Order
dated January 5, 1998, the Honorable Thomas P. Griesa, Chief
Judge of the Southern District of New York, directed petitioner
to show cause why the petition should not be dismissed as
untimely under the Antiterrorism and Effective Death Penalty Act,
Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), since the
petition was filed over 19 months after the effective date of the
AEDPA. Petitioner responded by Affidavit dated March 31, 1998,
offering reasons why his petition should not be so dismissed. On
May 27, 1998, the Honorable Andrew J. Peck, United States
Magistrate Judge, filed a Report and Recommendation recommending
that the petition be dismissed as untimely under the AEDPA.
Having received objections from petitioner, the Court, after
undertaking a full de novo review, hereby adopts the Magistrate
Judge's Report and Recommendation in all material respects. In
particular, with respect to petitioner's claim that he qualifies
for an "actual innocence" override of AEDPA's statute of
limitations, the Court finds that, even assuming, arguendo,
that such an override exists, petitioner's proffered "new
evidence" of innocence is neither new nor admissible. See Schlup
v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808
(1995); see also Alexander v. Keane, 991 F. Supp. 329, 338
(S.D.N.Y. 1998). Accordingly, the petition is dismissed with
prejudice. Clerk to enter judgment.
REPORT AND RECOMMENDATION
Pursuant to Rule 4 of the Rules Governing Section 2254 cases in
the United States
District Courts, 28 U.S.C. foll. § 2254, I recommend that the
Court summarily dismiss petitioner William Cromwell's habeas
corpus petition on the ground that he is not entitled to relief,
since his December 5, 1997 petition is untimely under the
one-year limitation period imposed by the Antiterrorism and
Effective Death Penalty Act ("AEDPA").
Petitioner Cromwell's habeas petition was received by the
Court's Pro Se Office on December 5, 1997. (See Petition.) The
Petition indicates that on December 8, 1983, Cromwell was
convicted of murder in the second degree, criminal possession of
a weapon and assault, and was sentenced to 18 years to life
imprisonment. (Petition ¶¶ 1-4.) The Appellate Division, First
Department affirmed his conviction without opinion on March 17,
1988. People v. Cromwell, 138 A.D.2d 983, 526 N.Y.S.2d 875 (1st
Dep't 1988). (See Petition ¶ 9(a) -(d).) The New York Court of
Appeals denied leave to appeal on June 15, 1988 and denied
reconsideration on August 17, 1988. People v. Cromwell,
72 N.Y.2d 857, 532 N.Y.S.2d 507, 528 N.E.2d 897, reconsideration
denied, 72 N.Y.2d 917, 532 N.Y.S.2d 851, 529 N.E.2d 181 (1988).
(See also Petition ¶ 9(e); Cromwell "Procedural History &
Claims Presented" Supp. To Petition, at p. 3.)
In June 1996, petitioner Cromwell filed a pro se motion to
vacate his conviction in New York Supreme Court pursuant to CPL §
440.10. The trial court denied the application on August 8, 1996
and the First Department denied leave to appeal on December 18,
1996. (See Cromwell "Procedural History & Claims Presented"
Supp. To Petition at pp. 4-5 & Ex.; see also Petition ¶ 11(b).)
As previously noted, petitioner Cromwell filed his present
federal habeas corpus petition with the Court's Pro Se Office on
December 5, 1997. By Order dated January 5, 1998, Chief Judge
Griesa directed Cromwell to show cause why the AEDPA's one-year
statute of limitations should not bar his petition. By Affidavit
dated March 31, 1998, Cromwell asserted that his habeas petition
was not untimely for three reasons. First, Cromwell asserted that
because he filed his habeas petition within one year of the First
Department's decision denying his CPL § 440.10 collateral attack,
his habeas petition was timely. (Cromwell 3/31/98 Aff. at pp.
6-7.) Second, Cromwell relied upon Judge Sweet's decision in
Rosa v. Senkowski, 97 Civ. 2468, 1997 WL 436484 (S.D.N Y
Aug.1, 1997), certificate of appealability granted, 1997 WL
724559 (S.D.N.Y. Nov.19, 1997), for the proposition that
application of the AEDPA's one-year statute of limitations would
violate the Suspension Clause. (Cromwell 3/31/98 Aff. at pp.
3-4.) Third, Cromwell asserted that his petition should be
entertained because he has shown evidence of "actual innocence."
(Id. at 4-5.)
THE AEDPA'S STATUTE OF LIMITATIONS BARS CROMWELL'S PETITION
On April 24, 1996, President Clinton signed into law the
Antiterrorism and Effective Death Penalty Act. The AEDPA, inter
alia, instituted a one-year statute of limitations for habeas
petitions filed after April 24, 1996:
(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.
(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
28 U.S.C. § 2244(d)(1)-(2); see Reyes v. Keane, 90 F.3d 676,
679 (2d Cir. 1996).
In Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), the
Second Circuit held that "where a state prisoner has had several
years to contemplate bringing a federal habeas corpus petition,
we see no need to accord a full year after the effective date of
the AEDPA." 107 F.3d at 93. Rather, the Second Circuit gave the
prisoner a "reasonable time" after enactment of the AEDPA to
bring his habeas petition. Id. (finding petition brought 72
days after enactment of AEDPA to be timely).
Here, Cromwell's conviction became final in 1988, some eight
years before enactment of the AEDPA and over nine years before he
brought his present habeas corpus petition. (See 1/5/98 Order
at 2 & n. 2.) Thus, Cromwell must be allowed a "reasonable time"
after the April 24, 1996 enactment of the AEDPA to bring his
federal habeas petition.
Were it not for his CPL § 440.10 collateral attack, it is clear
that Cromwell's December 5, 1997 petition — more than a year and
a half after the April 24, 1996 effective date of the AEDPA —
would be untimely. See, e.g., Thomas v. Greiner, 97 Civ. 2958,
1998 WL 236239 at *2 (S.D.N.Y. April 27, 1998) (Preska, D.J. &
Peck, M.J.); Espinal v. Walker, 97 Civ. 3187, 1998 WL 151273 at
*2 (S.D.N.Y. March 27, 1998) (Patterson, D.J. & Peck, M.J.);
Rodriguez v. Bennett, 97 Civ. 5953, 1998 WL 104604 at *1
(S.D.N.Y. March 9, 1998) (Rakoff, D.J.); Rowe v. Senkowski, 97
Civ. 1549, 1998 WL 51288 at *1 (S.D.N.Y. Feb.4, 1998) (Rakoff,
D.J.); Acosta v. Artuz, 985 F. Supp. 438, 439-40 (S.D.N.Y. 1997)
(Rakoff, D.J.); Yeung v. Artuz, 97 Civ. 3288, 1997 WL 572908 at
*2 (S.D.N.Y. Sept.10, 1997) (Baer, D.J. & Peck, M.J.); Roldan v.
Artuz, 976 F. Supp. 251, 253-54 (S.D.N.Y. 1997) (Batts, D.J. &
Peck, M.J.); Morales v. Artuz, 97 Civ. 3337, 1997 WL 588990 at
*2 (S.D.N.Y. Sept.9, 1997) (Baer, D.J. & Peck, M.J.); Fluellen
v. Walker, 975 F. Supp. 565, 566-67 (S.D.N.Y. Sept.7, 1997)
(Wood, D.J. & Peck, M.J.); Lee v. Artuz, 969 F. Supp. 872,
873-74 (S.D.N.Y. 1997) (Stein, D.J. & Peck, M.J.). Indeed, the
Court is not aware of any decision in this district finding a
petition brought after April 24, 1997 to be timely where the
state conviction was final before enactment of the AEDPA.
A. Cromwell's State Collateral Attack Does Not Make His
Cromwell argues that the AEDPA's one-year statute of
limitations should start running only from the First Department's
December 18, 1996 denial of his CPL § 440.10 collateral attack.
(Cromwell 3/31/98 Aff. at pp. 6-7.) Cromwell misses the import of
§ 2244(d)(2). That section does not state that the one-year
statute begins to run anew after decision on a state collateral
attack. Such an interpretation would allow an inmate to avoid the
effect of the AEDPA's one-year statute of limitations through the
device of bringing a belated state collateral attack.
Rather, § 2244(d)(2) merely excludes the time a collateral
attack is under submission from the calculation of the one-year
statute of limitations. Here, the AEDPA's statute of limitations,
as interpreted by Peterson, had not expired in June 1996 when
Cromwell brought his state collateral attack 40 days after the
AEDPA's April 24, 1996 effective date. See, e.g., Peterson v.
Demskie, 107 F.3d at 93; Roldan v. Artuz, 976 F. Supp. at 254
(Peterson's outer limit likely between 6 and 9 months; dicta).
The period that Cromwell's CPL § 440.10 motion was under
consideration — from June 3, 1996*fn1 to December 18, 1996 (198
days) — thus is not to be counted. Accordingly, the period from
April 24, 1996 to June 3, 1996 (40 days) plus the period from
December 19, 1996 to December 5, 1997 (352 days), for a total of
392 days, is the applicable period to determine if Cromwell's
petition was timely.*fn2 Since 392 days exceeds one year (and
obviously also exceeds the lesser "reasonable time" provided
under Peterson), Cromwell's habeas petition is untimely. See,
e.g., Rondon v. Artuz, 97 Civ. 6904, 1998 WL 182424 at *1-2 & n.
2 (S.D.N.Y. April 17, 1998); Thompson v. Herbert, No. 97 CV
3645, 1998 WL 199823 at *1-2 (E.D.N.Y. March 16, 1998); Latif v.
Portuendo, No. 97 CV 4527, 1998 WL 199846 at *1-2 (E.D.N Y
March 16, 1998); Pollard v. Stinson, No. 97 CV 6429, 1998 WL
178870 at *1 (E.D.N.Y. March 6, 1998); Jenkins v. Strack, No.
97 CV 6153, 1998 WL 178867 at *1 (E.D.N.Y. March 6, 1998);
Rashid v. Khulmann, 991 F. Supp. 254, 259 (S.D.N.Y. 1998) ("The
tolling provision does not, however, `revive' the limitations
period (i.e., restart the clock at zero); it can only serve to
a clock that has not yet fully run. Once the limitations period
is expired, collateral petitions can no longer serve to avoid a
statute of limitations."); Figueroa v. Kelly, No. 97 CV 3394,
1997 WL 833448 at *4 (E.D.N.Y. Dec.19, 1997); Howard v. Lacy,
97 Civ. 2286, 1997 WL 749390 at *2 & n. 6 (S.D.N.Y. Dec.4, 1997);
Newton v. Strack, No. CV 97-2812, 1997 WL 752348 at *2
(E.D.N.Y. Oct.15, 1997); Batts v. Artuz, No. CV 97-2222, 1997
WL 642322 at *1-2 (E.D.N.Y. Sept.5, 1997); Hughes v. Irvin,
967 F. Supp. 775, 778-79 (E.D.N.Y. 1997); Valentine v. Senkowski,
966 F. Supp. 239, 240-41 (S.D.N.Y. 1997).
B. The AEDPA's One-Year Statute of Limitations is Not
Cromwell relies on Judge Sweet's Opinion in Rosa v.
Senkowski, 97 Civ. 2468, 1997 WL 436484 (S.D.N.Y. Aug.1, 1997),
certificate of appealability granted, 1997 WL 724559 (S.D.N Y
Nov.19, 1997), for the proposition that application of the
AEDPA's one-year statute of limitations would violate the
suspension clause and thus be unconstitutional. (Cromwell 3/31/98
Aff. at pp. 3-4.) In a series of scholarly opinions, Judge
Sotomayor disagreed with Judge Sweet's Rosa decision.
Rodriguez v. Artuz, 990 F. Supp. 275, 277-84 (S.D.N.Y. 1998);
accord, Alexander v. Keane, 991 F. Supp. 329, 334-40 (S.D.N Y
1998); Albert v. Strack, 97 Civ. 2978, 1998 WL 9382 at *4 n. 3
(S.D.N.Y. Jan.13, 1998); Rashid v. Khulmann, 991 F. Supp. 254,
260 n. 3 (S.D.N.Y. 1998); Santana v. Artuz, 97 Civ. 3387, 1998
WL 9378 at *1 n. 2 (S.D.N.Y. Jan.13, 1998). The Court agrees with
Judge Sotomayor's opinions. The Court also notes that Judge
Rakoff agreed with Judge Sotomayor's conclusion in Rodriguez v.
Bennett, 97 Civ. 5953, 1998 WL 104604 at *1 (S.D.N.Y. March 9,
1998) (Rakoff, D.J.). Other Judges in this Circuit also have
agreed with Judge Sotomayor's conclusion. See, e.g., O'Connor v.
Kuhlman, 97 Civ. 2914, 1998 WL 229516 at *1-2 (S.D.N.Y. May 7,
1998) (McKenna, D.J.); Bond v. Walker, 97 Civ. 3026, 1998 WL
229505 at *1-2 (S.D.N.Y. May 7, 1998) (McKenna, D.J.); Lovett v.
Khulman, 97 Civ. 2995, 1998 WL 209618 at *3-4 (S.D.N.Y. April
29, 1998) (Mukasey, D.J.); Williams v. Greiner, 97 Civ. 3886,
1998 WL 205317 at *1 n. 1 (S.D.N.Y. April 27, 1998) (Chin, D.J.);
Matthews v. Artuz, 97 Civ. 3334, 1998 WL 205310 at *2 n. 1
(S.D.N.Y. April 27, 1998) (Chin, D.J.); Mangialino v. United
States, 97 Civ. 2720, 1998 WL 182443 at *2-3 (S.D.N.Y. April 17,
1998) (Chin, D.J.); Hunter v. Khulman, 97 Civ. 4692, 1998 WL
182441 at *2 (S.D.N.Y. April 17, 1998) (Chin, D.J.); Terrence v.
Senkowski, 97 Civ. 3242, 1998 WL 182436 at *2 (S.D.N.Y. April
17, 1998) (Chin, D.J.); Santana v. Khulman, 97 Civ. 3882, 1998
WL 182433 at *2 (S.D.N.Y. April 17, 1998) (Chin, D.J.);
Robertson v. Artuz, 97 Civ. 2561, 1998 WL 182428 at *2-3
(S.D.N.Y. April 17, 1998) (Chin, D.J.); Brown v. Superintendent,
Elmira Correctional Facility, 97 Civ. 3303, 1998 WL 75686 at
*3-4 (S.D.N.Y. Feb.23, 1998) (Mukasey, D.J.); Brooks v. Artuz,
97 Civ. 3300, 1998 WL 42567 at *3-4 (S.D.N.Y. Feb.4, 1998)
(Koeltl, D.J.); Garcia v. New York State Dep't of Correctional
Servs., 97 Civ. 3867, 1997 WL 681313 at *2 n. 3 (S.D.N Y
Oct.31, 1997) (Scheindlin, D.J.); Avincola v. Stinson, 97 Civ.
1132, 1997 WL 681311 at *2 n. 2 (S.D.N.Y. Oct.31, 1997)
(Scheindlin, D.J.); White v. Garvin, 97 Civ. 3244, 1997 WL
626396 at *2 n. 4 (S.D.N.Y. Oct.8, 1997) (Scheindlin, D.J.);
Byas v. Keane, 97 Civ. 2789, 1997 WL 605106 at *2 n. 2
(S.D.N.Y. Oct.1, 1997) (Scheindlin, D.J.); LaTorres v. Walker,
97 Civ. 3392, 1997 WL 605105 at *2 n. 3 (S.D.N.Y. Oct.1, 1997)
(Scheindlin, D.J.). Judge Sweet's Rosa decision has not been
followed by any other Judges in the Circuit, so far as the Court
Thus, Cromwell's habeas petition is untimely under the AEDPA's
statute of limitations, which is not unconstitutional.
C. Cromwell's Claim of "Actual Innocence" Does Not Change
In a thorough and well-reasoned discussion, Judge Sotomayor
recently addressed the issue of whether an exception to the AEDPA
statute of limitations is required by the Suspension Clause for
"actual innocence" claims:
If there is any core function of habeas corpus — any
constitutionally required minimum below which the
scope of federal habeas may not be reduced — it would
free the innocent person unconstitutionally
incarcerated. Thus, the question [of whether] the
Suspension Clause require[s] that an exception for
actual innocence be made to the AEDPA statute of
limitations? — translates into the more basic
question: Does the Suspension Clause require Congress
to provide any federal habeas relief for state
This is an extremely difficult question,
implicating as it does some of the most fundamental
and fiercely contested issues of constitutional law —
relations among the three branches of the federal
government, relations between the federal and state
governments, and the balancing of individual liberty
interest against society's need for a criminal
justice system that at some point rests in its
adjudication of guilt. . . . When such momentous
issues are involved, particularly where, as here, no
clear guidance can be found from higher courts, this
Court is mindful of the longstanding maxim of
judicial restraint that it is "`our duty to avoid
deciding constitutional questions presented unless
essential to proper disposition of the case.'" Thus,
the Court turns to petitioner['s] claims to see
whether, assuming an "actual innocence" exception to
the statute of limitations exists, he could take
advantage of it to have this Court hear his petition
on the merits notwithstanding it being time-barred.
Alexander v. Keane, 991 F. Supp. 329
, 338 (S.D.N.Y. 1998)
In Alexander, Judge Sotomayor concluded that the petitioner
had not shown "actual innocence," so that she did not need to
reach a decision as to the existence of an "actual innocence"
exception to the AEDPA's statute of limitations. Id. at 340.
Similarly, this Court will exercise judicial restraint by
declining to decided this important constitutional issue unless
required to do so. Therefore, the Court will first determine
whether Cromwell has demonstrated "actual innocence."
Judge Sotomayor summarized the "actual innocence" standard
announced by the Supreme Court in Murray v. Carrier,
477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), and elaborated upon
in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808
(1995), as follows:
Under Schlup, "the petitioner must show that is
more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable
doubt." Id. at 327, 115 S.Ct. at 867. The Court
emphasized that this is a question of actual
innocence, and thus "the district court is not bound
by the rules of admissibility that would govern at
trial" but instead "must make its determination . . .
`in light of all the evidence, including that alleged
to have been illegally admitted (but with due regard
to any unreliability of it) and evidence tenably
claimed to have been wrongly excluded or to have
become available only after the trial.'" Id. at
327-28, 115 S.Ct. at 867 (quoting Henry Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)).
The Schlup burden, it should be noted, is not
whether no reasonable juror could find petitioner
guilty, and is therefore less than the insufficiency
of evidence standard of Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See
Schlup, 513 U.S. at 330, 115 S.Ct. at 868. It is,
however, a significantly higher burden than showing
prejudice, which only requires a reasonable
probability that the factfinder would have reasonable
doubt, and moreover is evaluated only in light of the
evidence that should have been properly before the
factfinder. See id. at 332-33, 115 S.Ct. at 870
(O'Connor, J., concurring). In order to pass through
the actual innocence gateway, a petitioner's case
must be "truly extraordinary." Id. at 327, 115
S.Ct. at 867.
[T]he Court notes the admonition in Schlup that "to
be credible, [a claim of actual innocence] requires
support his allegations of constitutional error with
new reliable evidence that was not presented at
trial." Id. at 324, 115 S.Ct. at 865; see also
id. at 329, 115 S.Ct. at 868 ("a petitioner does not
meet the threshold requirement unless he persuades
the district court that, in light of the new
evidence, no juror, acting reasonable, would have
voted to find him guilty beyond a reasonable doubt")
(emphasis added). This Court does not understand
"new" evidence to be limited to evidence that was
unavailable at trial, see id. at 328, 115 S.Ct. at
867 (court must evaluate "in light of . . . evidence
tenably claimed to have been wrongly excluded or to
have become available only after the trial"), but
that a claim of actual innocence must at least
present evidence that the original factfinder did not
consider to be cognizable. Accord Embrey v.
Hershberger, 131 F.3d 739, 740-41 (8th Cir. 1997)
(en banc). Given the probabilistic standard of
Schlup, a claim without new evidence unseen by the
jury, to be successful, would put the court in the
position of asserting that one of the jurors acted
Alexander v. Keane, 991 F. Supp. at 339-40.*fn4
Cromwell's sixth habeas claim asserted his "actual innocence,"
referring the Court to point three of his state CPL § 440.10
motion papers to flesh out his actual innocence claim. (Cromwell
3/31/98 Aff. at pp. 4-5; Cromwell "Procedural History & Claims
Presented" Supp. to Petition at p. 7.) Reference to point three
of Cromwell's CPL § 440.10 papers reveals that Cromwell's claim
of actual innocence amounts to his assertion that several
witnesses, including two police officers, lied at trial. To
support this proposition, Cromwell only relies upon evidence
offered at trial, including Cromwell's own testimony. In other
words, Cromwell does not offer any new evidence that was not
considered by the jury, and instead essentially asks the Court to
find that "none of the jurors acted reasonably" when they chose
to believe the prosecutor's witnesses and disbelieve Cromwell's
testimony. This the Court cannot do. Cromwell has not made a
colorable showing of actual innocence, and the Court need not
reach the constitutional questions raised above.
For the reasons set forth above, the Court should dismiss with
prejudice Cromwell's petition as barred by the AEDPA's one-year
statute of limitations.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from receipt of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable Jed S.
Rakoff, 500 Pearl Street, Room 750, and to the chambers of the
undersigned, 500 Pearl Street, Room 1370. Any requests for an
extension of time for filing objections must be directed to Judge
Rakoff. Failure to file objections will result in a waiver of
those objections for purposes of appeal. Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),
cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38
(1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied,
506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v.
Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
May 27, 1998.