over many centuries — that law must be leavened with equity
— cannot have been lost on Congress.
Respondent's other objection is that the particular circumstances here
presented do not warrant equitable tolling. As already noted; however, for
purposes of the instant motion the Court must take as true plaintiff's
sworn testimony that he was never informed by anyone of the Court of
Appeals' decision until after the statute of limitations for filing a
habeas petition had expired. Where a petitioner, through no fault of his
own, first learns of the outcome of a final appeal after the time for
seeking habeas has expired, equitable tolling is appropriate. See Baskin
v. United States, 998 F. Supp. 188, 188-89 (D.Conn. 1998); cf Lilly v.
Newland, No. C 98-2635 VRW (PR), 1998 WL 699067, *2 (N.D.Cal. 1998)
(equitably tolling the statute of limitations for 45 days based on
delayed notification of decision on application for collateral review but
finding the petition untimely despite the tolling).
While respondent points to a few cases in which equitable tolling was
denied, most of those cases involved notification delays that did not
extend beyond the statute of limitations cut-off date, so that the
petitioners could still have timely filed their petitions, see, e.g.,
Mandarino v. United States, No. 98 Civ. 590 (LBS), 1998 WL 729703, *2
(S.D.N.Y. Oct. 16, 1998) (noting that petitioner still had time in which
to file after delayed notification of finality of conviction); Smith v.
Roe, No. CV 98-2746-JGD SH, 1998 WL 657667, *3 (C.D.Cal. June 8, 1998)
(noting that petitioner still had four months in which to file). As for
the one case cited by respondent in which petitioner received notice
after the statute of limitations had run, the case is inapposite, both
because it involved statutory tolling rather than equitable tolling and
because petitioner's own dilatory conduct was responsible for the running
of most of the limitations period. See Geraci v. Senkowski,
23 F. Supp.2d 246, 253 (E.D.N.Y. 1998).*fn2
To be sure, equitable tolling may ultimately prove unwarranted on all
the facts and circumstances — for example, if the evidence
indicates that petitioner, in the exercise of reasonable diligence,
should have known of the Court of Appeals' decision at an earlier date.
But, given the state of the record at present, the Court cannot draw such
a conclusion. While respondent would have the Court conclude that
petitioner should have learned of the decision earlier because rulings of
the New York Court of Appeals are published, the validity of such a
conclusion depends at a minimum upon proof that petitioner, who was
incarcerated, had meaningful access to a publication containing such
rulings. Nothing in the current record permits such a, finding.
Equitable tolling might also be precluded, for example, if the weight
of the evidence ultimately contradicts petitioner's claim that he did not
learn that his conviction had become final until after the habeas
limitations period had expired. In this
regard, the Court notes that the testimony of petitioner's appellate
attorney at the Court's telephonic hearing raised substantial questions
about whether petitioner's account is credible. But these questions must
be resolved in the first instance by the Magistrate, after an in-court
hearing in which demeanor and credibility can be properly assessed.
Accordingly, Judge Pitman was correct in concluding that further hearings
are necessary and that respondent's motion must therefore be denied
without prejudice to its renewal.
Finally, the Court has carefully considered the other arguments raised
by respondent and finds them to be without merit. Accordingly, the Court
hereby incorporates by reference the Report and Recommendation of
Magistrate Judge Pitman and, for the reasons articulated therein as
modified by those set forth above, adopts its recommendation and denies
respondent's motion to dismiss.