order to have the court charge the jury on justification and on
the alternative count of manslaughter in the first degree. (Id.
at 333-34.) Despite defense counsel's recommendation (endorsed by
members of Plowden's family) that Plowden take the stand, counsel
advised the court that Plowden had chosen not to testify. (Id.
at 334.) The court told Plowden that defense counsel's advice to
him about the justification and manslaughter charges' being
unavailable unless he testified was correct. (Id. at 334.)
Plowden told the court that he understood this but nonetheless
did not wish to testify. (Id. at 334.)
Plowden was subsequently convicted of Murder in the Second
Degree, see N.Y. Penal L. § 120.25, and, on April 10, 1995,
was sentenced to a term of imprisonment of twenty-five years to
On direct appeal, Plowden argued that he should have a new
trial because of prejudicial comments made by the prosecutor
during summation. On February 10, 1997, the Appellate Division,
Second Department concluded that Plowden's claim was "largely
unpreserved." People v. Plowden, 236 A.D.2d 489, 654 N.Y.S.2d 610,
610 (2d Dep't 1997). The court also went on to conclude that
the remarks about which Plowden complained were either "fair
comments on the evidence" or "responsive to arguments presented
in the defense counsel's summation." Id.
On February 13, 1997, Plowden, through counsel, sought leave to
appeal to the New York Court of Appeals. Leave to appeal was
denied on May 16, 1997. See People v. Plowden, 89 N.Y.2d 1098,
660 N.Y.S.2d 392, 682 N.E.2d 993 (1997). (As discussed below,
Plowden avers that he did not find out about the denial until
August 1, 1998.)
Plowden did not file a petition for a writ of certiorari in the
United States Supreme Court.
On September 29, 1998, Plowden filed a pro se motion to
vacate his conviction. See N.Y.Crim. Pr. L. § 440.10. He
alleged that his trial counsel was constitutionally ineffective
for waiving his right to testify and for not locating and calling
as a witness Anthony Johnson, who would have testified that
Hubbard, the murder victim, was a known "bully" and that Plowden
had shot Hubbard when trying to free himself of a "choke-hold"
Hubbard had on him. Plowden also alleged that his appellate
counsel was ineffective for not arguing that trial counsel was
ineffective in failing to ask for a jury charge on manslaughter
in the first degree.
On March 9, 1999, the Supreme Court, County of Kings denied
Plowden's § 440 motion. The court pointed to Plowden's
on-the-record waiver of his right to testify (despite counsel's
advice to the contrary) and an affidavit from trial counsel
stating that she had hired a private investigator who had been
unable to locate Johnson prior to trial. The court said it could
not consider Plowden's claim of ineffective assistance of
appellate counsel, which instead had to be raised in a petition
for a writ of error coram nobis before the appellate court that
had heard his case.
On March 15, 1999, Plowden filed an application for a writ of
error coram nobis in the Appellate Division, Second Department.
That court denied the application on June 14, 1999. See People
v. Plowden, 262 A.D.2d 504, 691 N.Y.S.2d 783 (2d Dep't 1999).
Plowden filed his habeas petition on June 24, 1999, raising the
same ineffective assistance claims he brought in his § 440 and
coram nobis proceedings in state court.
Respondent subsequently moved to dismiss Plowden's petition as
untimely under the one-year statute of limitations period of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
Pub.L. 104-132, 110 Stat. 1214 (1996), relevant portion codified
at 28 U.S.C. § 2244(d)(1).
AEDPA established a one-year limitation period for state
prisoners seeking federal
habeas relief. See 28 U.S.C. § 2244(d)(1). The one-year period
begins on the latest of one of four dates:
(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 prevent 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.
Here, Plowden does not argue (nor could he) that any of the
triggering dates other than (A) are applicable in this case.
The New York Court of Appeals denied Plowden leave to appeal
the Appellate Division's adverse decision on May 16, 1997. He
therefore had until August 14, 1997, to file a petition for a
writ of certiorari in the United States Supreme Court. See Sup.
Ct. R. 13(1); 30(1). Since he did not do so, the clock on his
habeas petition began running on that date, which represented the
expiration of his time for seeking direct review of his
conviction. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998);
Fed R. Civ. P. 6(a). Given the one-year statute period under
AEDPA, Plowden had until August 14, 1998 to file his habeas
petition. See Ross, 150 F.3d at 103 ("When a statute of
limitations is measured in years, the last day for instituting
the action is the anniversary date of the start of the
Despite this deadline, Plowden did not file his habeas petition
until June 24, 1999. (The petition, while certainly late, is not
as late as a simple comparison of dates suggest. The time when
his § 440 petition was pending (from September 29, 1998, to March
9, 1999) and the time when his coram nobis petition was pending
(from March 15, 1999, to June 14, 1999) do not count for purposes
of the AEDPA statute of limitation. See 28 U.S.C. § 2244(d)(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.").
Plowden's petition was therefore approximately eight weeks late.)
Plowden acknowledges that his petition was not timely filed,
but argues that the one-year statute was tolled during the period
that he claims he was unaware of the New York Court of Appeals's
May 16, 1997, denial of his application for leave to appeal.
Specifically, he asserts that he did not receive notice (either
from the Court of Appeals or from his appellate counsel) that his
leave to appeal had been denied until after he wrote to the Court
on July 21, 1998, to inquire about the status of his case. When
he received the Court's return letter on approximately August 1,
1998, he discovered that the direct review of his conviction was
complete. If the statute were tolled until the August 1, 1998,
date, as Plowden contends it should be, his petition is timely.
The Second Circuit has not had occasion to address the question
whether the one-year deadline in AEDPA is an absolute bar to
federal court jurisdiction or rather a statute of limitations
subject to equitable tolling. The vast majority of courts to
decide this question, however, have held that the AEDPA deadline
should be interpreted as a statute of limitations and that the
equitable concept of tolling is therefore applicable. See Torres
v. Miller, No. 99-CV-0580(MBM), 1999 WL 714349, at *5 (S.D.N Y
Aug. 27, 1999) (collecting cases); see also Vasquez v. Greiner,
118 F. Supp.2d 307, 308 (S.D.N.Y. 1999) (noting "growing consensus" in
support of equitable tolling of the AEDPA deadline). I agree with
those courts and conclude that some circumstances will equitably
toll the AEDPA one-year period.
Equitable tolling, which allows a plaintiff to initiate an
action beyond a statute of limitations deadline, is typically
available only when the party was "`prevented in some
extraordinary way from exercising his rights.'" Johnson v. Nyack
Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (quoting Miller v.
International Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir.
1985)). The Supreme Court has cautioned that this equitable
doctrine be used "only sparingly" and not in cases involving
"garden variety claim[s] of excusable neglect." Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453,
112 L.Ed.2d 435 (1990). The Court has approved its use when the
plaintiff filed a defective pleading in the right court or a
proper pleading in the wrong court. See id. at 96 & n. 3, 111
S.Ct. 453 (citing Burnett v. New York Central R. Co.,
380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); American Pipe &
Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713
(1974)). The Court has also endorsed equitable tolling when the
plaintiff was misled by his adversary into allowing the statutory
period to expire. See id. at 96 & n. 4, 111 S.Ct. 453 (citing
Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 79 S.Ct.
760, 3 L.Ed.2d 770 (1959)).
Equitable tolling will generally not be available, however,
"where the claimant failed to exercise due diligence in
preserving his legal rights." Id. The same is true when the
lack of due diligence is attributable to the claimant's attorney.
See South v. Saab Cars USA, 28 F.3d 9, 12 (2d Cir. 1994); see
also Irwin, 498 U.S. at 92, 111 S.Ct. 453 ("Under our system of
representative litigation, each party is deemed bound by the acts
of his lawyer-agent and is considered to have notice of all
facts, notice of which can be charged upon the attorney.)"
(quoting Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962) (internal quotation marks omitted)).
Several district courts in this circuit have addressed cases
such as this one. In Baskin v. United States, 998 F. Supp. 188
(D.Conn. 1998), the petitioner's request for certiorari review of
his conviction was denied on November 27, 1995. See id. at 189.
However, he did not file his petition pursuant to
28 U.S.C. § 2255*fn2 until August 25, 1997. See id. The petitioner
attributed his tardiness to the fact that his attorney did not
notify him of the Supreme Court's denial of his petition until
December 1996 (13 months late). Noting that the respondent did
not offer any evidence to refute petitioner's explanation, the
court concluded that "[i]t would be grossly inequitable to bar
petitioner's ineffective assistance of counsel claim on the basis
that counsel's error permitted the statute of limitations to
run." Id. at 190. The court therefore agreed to equitably toll
the statute period.
In Vasquez, 68 F. Supp.2d 307, the New York Court of Appeals
had affirmed the petitioner's conviction on July 2, 1996. See
id. at 308. Since he did not file a petition for a writ of
certiorari, his conviction became final on September 30, 1996,
and his time for filing a habeas petition expired a year later.
See id. Yet, he did not file his petition until May 1, 1998,
seven months late. See id. The petitioner argued for equitable
tolling of the deadline because he claimed that his attorney had
failed to notify him of the Court of Appeals's action and that he
had not found out about it until February 1998 in response to a
letter he personally wrote to the Court. See id.
The habeas court concluded that, if true, petitioner's account
would support equitable tolling. See id. at 310 (citing
Baskin, 998 F. Supp. at 188-89). The court therefore scheduled
an evidentiary hearing to consider whether petitioner's appellate
counsel had really failed to notify him of the Court of Appeals's
decision and whether the petitioner could have discovered the
decision earlier on his own through "the exercise of reasonable
diligence" by, for example, consulting available case reporters
in the prison library. See id. at 310-11. But cf. Mandarino v.
United States, No. 98-CV-490(LBS), 1998 WL 729703, at *2
(S.D.N.Y. Oct. 16, 1998) (granting respondent's motion to dismiss
for untimeliness, without evidentiary hearing, in part because
petitioner should have discovered that petition for certiorari
had been denied by consulting case reporters).
Notwithstanding Baskin and Vasquez, I conclude that
Plowden's allegations regarding his lack of notice of the Court
of Appeals's decision, even if true, do not establish his
entitlement to equitable tolling. My conclusion rests on
Plowden's lack of reasonable diligence during and after the
statutory period. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) ("One
who fails to act diligently cannot invoke equitable principles to
excuse that lack of diligence."); Johnson v. Nyack Hosp.,
86 F.3d 8, 12 (2d Cir. 1996) ("Equitable tolling requires a party to
pass with reasonable diligence through the period it seeks to
First, it was not reasonable for Plowden to allow more than
seventeen months to elapse from February 13, 1997, the date on
which he sought leave to appeal to the Court of Appeals, and July
21, 1998, the date on which he wrote to inquire as to the status
of his leave request. Plowden does not allege that there was any
impediment to his inquiring during that time. See Miles v.
Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (equitable tolling
only permitted "if extraordinary circumstances beyond a
prisoner's control make it impossible to file a petition on
time." (emphasis added)); see also Johnson, 86 F.3d at 12
(equitable tolling appropriate when claimant "has been
prevented in some extraordinary way from exercising his rights"
(internal quotation marks omitted, emphasis added)). In fact,
Plowden's own later experience (writing a letter to the Court of
Appeals in July 1998 and receiving a quick response) demonstrates
the ease with which he could have stayed informed about his case.
Cf. Walker v. Jastremski, 159 F.3d 117, 119 (2d Cir. 1998)
(per curiam) ("[T]here is no indication that Walker could not,
at an earlier date, have found out about the wrongs he currently
alleges. On the contrary, there is every reason to think that,
had he requested his record earlier, he would earlier have
learned what he now claims was in it.").
Second, although Plowden claims that his appellate attorney
failed to notify him of the Court of Appeals's decision, he does
not allege that he ever contacted his attorney to check on the
status of his case during this seventeen-month period. Compare
Smith v. Roe, No. CV 98-2746-JGD SH, 1998 WL 657667, at *3
(C.D.Cal. June 8, 1998) ("[P]etitioner does not assert that he
made any inquiry to either his appellate attorney or directly to
the California Supreme Court at any time during 1996 or 1997
regarding the status of his Petition for Review."), with
Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 237-38
(3d Cir. 1999) ("[W]here . . . a diligent client persistently
questioned the lawyer as to whether he had filed the complaint in
time, and he affirmatively misrepresented to her that he had, we
think there is a sufficient claim of attorney abandonment to
bring the case within the narrow line of cases in which lawyer
misconduct justifies equitable tolling.").
Third, the limitations period had not run at the time Plowden
claims he found out about the Court of Appeals's decision; he
still had a window (albeit a brief one of two weeks) in which to
file his habeas petition
or file for state collateral review, thus triggering AEDPA's
statutory tolling provision, see 28 U.S.C. § 2244(d)(2)
(requiring tolling during pendency of "properly filed application
for State post-conviction or other collateral review"). See
Vasquez, 68 F. Supp.2d at 310 ("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."). Instead,
Plowden waited nearly two months before filing his § 440
There is no limiting principle to Plowden's argument that
simple ignorance — absent any showing of diligence on his part or
allegations of impediments to his staying informed about his case
— should provide a basis for equitable tolling; "[t]o hold that
the statute of limitations should be extended in this case would
allow the statute to be extended indefinitely." Balagula v.
United States, 73 F. Supp.2d 287, 290 (E.D.N.Y. 1999). Such an
outcome would defeat the court's duty to "take seriously
Congress's desire to accelerate the federal habeas process."
Torres, 1999 WL 714349, at *6 (quoting Calderon v. United
States Dist. Court, 128 F.3d 1283, 1289 (9th Cir. 1997)).
In sum, this case presents "at best a garden variety claim of
excusable neglect," Irwin, 498 U.S. at 96, 111 S.Ct. 453, not
an extraordinary set of circumstances that would justify a court
to use equitable principles to set aside a
Congressionally-prescribed statute of limitations.
For the reasons set forth above, the petition for a writ of
habeas corpus is dismissed as untimely. In addition, I refuse to
issue a certificate of appealability, because petitioner has not
presented a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2).