in the first instance. There is literally no limit to the number
of Freedom of Information Law requests that a state prisoner
could make after his conviction. Allowing a toll during the
pendency of these requests could toll the AEDPA time period
indefinitely. Put simply, it would be inconsistent with AEDPA's
limitation period to allow endless requests for information to
toll the statute of limitations.
In support of the claim that his numerous requests for
information toll the AEDPA statute, Sorce relies upon Edmond v.
United States Attorney, 959 F. Supp. 1 (D.D.C. 1997). Edmond in
no way supports Sorce's blanket assertion of a toll. Indeed, the
case nowhere refers to the section of AEDPA that provides for a
toll. Instead, Edmond stands for the wholly unremarkable
proposition that AEDPA's time period does not begin to run, in
cases of newly discovered evidence, until the time when the
petitioner should have discovered the facts supporting his claim.
Where a request for documents reveals new information relevant to
a petitioner's claim no toll is necessary for a habeas petition
to be timely. Instead, as discussed below, it is the possession
of the relevant evidence that starts the running of the statute
B. Timeliness Under the Newly Discovered Evidence Rule
Having determined that Sorce's petition is untimely under the
rule requiring that a petition be filed within one year of the
date upon which a conviction becomes final, the court turns to
consider whether Sorce's petition may be deemed timely under
28 U.S.C. § 2244(d)(1)(D), the "newly discovered evidence" provision
of the statute. As noted, this section of AEDPA allows the one
year period to begin to run from the date upon which the factual
predicate for petitioner's claim could have been discovered
though the exercise of due diligence.
Sorce makes the bald and unsupported claim that facts
surrounding the true cooperation of his co-defendant could not
have been known until "now," therefore, his petition must be
deemed timely. Despite this assertion, Sorce fails to set forth
any explanation as to why the notion regarding his co-defendant
has only now come to light. There has been no reference to the
recent discovery of any particular document to support the claim
of newly acquired knowledge. Indeed, a review of the state court
proceedings belies the assertion that the cooperation of Sorce's
co-defendant is recently discovered. The state court record
reveals that Sorce must have known of his co-defendant's
cooperation from as early as 1992.
It appears that Sorce's only claim of newly discovered evidence
relies upon the same evidence submitted in support of his 1998
Section 440 motion — the Gullo Affirmation and the 1991 newspaper
articles. For the same reasons held by the state court, the court
holds that this information cannot possibly be considered as
"newly discovered" so as to start the running of the statute of
limitations as of the date when Sorce came into possession of the
documents. The Gullo Affirmation was marked at the 1992 speedy
trial hearing and the newspaper articles were obviously available
in 1991. Because no document obtained through Sorce's Freedom of
Information Law litigation constitutes evidence that could not
have been earlier obtained through the exercise of due diligence,
the date upon which these documents came into Sorce's possession
has no effect on the AEDPA statute of limitations. Accordingly,
the court adheres to the holding that the present petition is
C. "Inherent Power"
Sorce's final argument seeking to avoid dismissal of his
petition as untimely is that this court has the inherent power to
consider the merits of the petition, notwithstanding the running
of the AEDPA statute of limitations. While the court is not at
all convinced that it possesses the power
asserted, the court has reviewed the papers submitted on the
merits of this claim and holds that, in any event, this would not
be a proper case to ignore the statute of limitations.
As noted, Sorce's present arguments are based upon the notion
that his co-defendant's status as a government informant, was
concealed from him until only recently. The 1992 state court
record, however, is replete with references to the cooperation of
Sorce's co-defendant. Put simply, there are neither facts nor law
present in this case that would convince this court to even
consider whether the AEDPA statute of limitations should be
Nor does the court find this case to be a proper situation to
apply equitable tolling to the AEDPA statute of limitations.
Equitable tolling applies only if "`extraordinary circumstances'
beyond a prisoner's control make it impossible to file a petition
on time." Torres v. Miller, 1999 WL 714349 *6 (S.D.N.Y. August
27, 1999), quoting, Calderon v. United States Dist. Ct.,
128 F.3d 1283, 1288 (9th Cir. 1997); see also Burgos v. Greiner,
1999 WL 551229 *3 (E.D.N.Y. June 21, 1999) (equitable tolling can
be applied to AEDPA time period only if "party was prevented in
some extraordinary way from exercising his rights"). The burden
lays with petitioner to establish the entitlement to equitable
tolling. Courts should "take seriously Congress's desire to
accelerate the federal habeas process, and will only authorize
extensions when this high hurdle is surmounted." Torres v.
Miller, 1999 WL 714349 *6 (S.D.N.Y. August 27, 1999), quoting,
Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th
Cir. 1997). Petitioner has alleged no facts that would justify an
equitable tolling of the AEDPA statute of limitations.
For the foregoing reasons, Sorce's petition for a writ of
habeas corpus is dismissed as time-barred. In view of the court's
ruling and consideration of all materials submitted both by
Petitioner and his counsel, Sorce's pro se motion to amend his
petition is denied as moot. The Clerk of the Court is directed to
close the file in this case.
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