caused his delay"); Atkins v. Harris, No. C 98-3188, 1999 WL
13719 at *2 (N.D.Cal. Jan.7, 1999) (equitable tolling
inappropriate, despite claims of "lockdowns, restricted library
access[,] transfers . . . [and] claims of poor eyesight," "where
petitioner had 16 years since his conviction was final to file a
timely federal petition . . . and [he] managed to file numerous
state and federal petitions which contain claims that are the
same as, or similar to, the ones raised in the present
petition"); Nguyen v. Mervau, No. C 98-2038, 1998 WL 556628 at
*2 (N.D.Cal. Aug.24, 1998) (equitable tolling not justified based
on "lack of fluency in the English language and his alleged
inability to find a jailhouse lawyer" where petitioner filed
petition over six years after conviction became final and raised
same claims as on direct appeal); United States ex rel. Lacey v.
Gilmore, No. 97 C 3528, 1998 WL 397842 at *3 (N.D.Ill. July 13,
1998) ("The fact that the claims Lacey raises on habeas are
virtually identical to the claims he raised during State direct
and post-conviction review undercut his claim" that he is
entitled to tolling of limitations period); see also McDade v.
Brigano, 1999 WL 126428 at *3 ("a petitioner must show he was
diligent in pursuing his remedies not only during the equitably
tolled period, but also during any period prior to that when he
was eligible to file his petition").
Furthermore, even assuming arguendo that the AEDPA statute of
limitations should be tolled during the time Rhodes was
hospitalized, see, e.g., Speiser v. U.S. Dep't of Health & Human
Servs., 670 F. Supp. at 384 (assuming, without deciding, that
Rehabilitation Act time period tolled during hospitalizations),
Rhodes's petition still would be untimely. It is difficult to
discern the total amount of time that Rhodes was hospitalized
between April 24, 1996 and February 9, 1998. It is clear from his
affidavits that Rhodes was in the hospital from January 14 to
January 20, 1997, and then from February 23 to February 28, 1997,
a total of 13 days. (Rhodes 1/8/99 Aff. ¶¶ 2-4.) However, the
length of his third hospitalization is not clear. Rhodes's third
hospitalization began on March 3, 1997, but he does not state
when it ended. In one of his affidavits, immediately following
his claim that he went into the hospital on March 3, Rhodes
asserts that his condition "took a turn for the worse" on May 28,
1997 when his kidneys failed. If the Court were to assume,
therefore, that Rhodes' third hospital stay lasted from March 3,
1997 through May 28, 1997 and extended for even another two
months of recovery time until July 28, 1997, this third
hospitalization would have lasted for 147 days. Thus, these three
hospitalizations add up to an estimated total of 160 days.
Rhodes's petition, however, was filed 291 days after the April
24, 1997 deadline. Thus, even if the time Rhodes was in the
hospital were excluded, his habeas petition still would be
Rhodes' second argument concerning his incapacitation is his
assertion that he was placed in the "physically disable[d] unit"
and monitored daily by prison medical officials up until the
present day. (Rhodes 1/8/99 Aff. ¶ 6.) This argument, however,
does not show that Rhodes was unable to protect his legal rights,
since Rhodes makes no showing that, while in this ward his
physical and mental health were so impaired or the conditions in
the ward so restrictive that they prevented him from preparing
his habeas petition. See, e.g., Giraldes v. Ramirez-Palmer,
1998 WL 775085 at *2 (tolling inappropriate based on "lockdown"
status of prison where "there [was] no showing that the lockdown
actually impeded [petitioner's] efforts" to complete petition);
Hedgepeth v. Runyon, 1997 WL 759438 at *4 (tolling rejected
where no showing that plaintiff was "not able to protect her
rights" despite illnesses); Pauling v. Secretary of Dept. of
Interior, 960 F. Supp. at 804 n. 6 (tolling not warranted based
on "major depressive episode" where medical evidence submitted
indicated only that plaintiff "was too ill to work, not that he
was too ill to comprehend
his rights and to file a complaint"); Berry v. United States,
1995 WL 33284 at *2 (equitable tolling not justified by
plaintiff's mental illness where evidence showed "she was
distraught and fearful before she brought suit," but "not `unable
to protect [her] legal rights because of an over-all inability to
function in society.'"). The fact that Rhodes filed this petition
on February 9, 1998 while housed in this ward, without showing
any change in his or the ward's conditions, undermines his
argument, and is strong evidence that Rhodes had the ability to
pursue his legal rights during the one-year limitations period.
See, e.g., Braham v. State Ins. Fund, 1999 WL 14011 at *4
(filing of other lawsuit during alleged incompetency period
demonstrated plaintiff was capable of pursuing her legal rights);
Chalom v. Perkins, 1998 WL 851610 at *6 (rejecting equitable
tolling argument based on illness where plaintiff filed an
administrative complaint); Lloret v. Lockwood Greene Eng'rs,
1998 WL 142326 at *4 (same, where plaintiff filed bankruptcy
claim); Hedgepeth v. Runyon, 1997 WL 759438 at *5 (same, where
plaintiff sought disability retirement benefits); Pauling v.
Secretary of Dept. of Interior, 960 F. Supp. at 804 n. 6 (same,
where plaintiff filed workers' compensation claim); Sanders v.
Kiley, 1995 WL 77916 at *5 (same, where plaintiff filed and won
a pro se lawsuit).
Rhodes's third tolling argument consists of his conclusory
assertions, such as his "constant and continue physical illnesses
along with the numerous multiple medications . . . rendered the
petitioner completely physically and mentally incapacitated"
(Rhodes 1/8/99 Aff. ¶ 6) and "[p]etitioner submits that his past
and continuing illness . . . rendered him physically, and
mentally incapacitated to prepare and file his petition. . . ."
(Rhodes 5/14/98 Aff. at pp. 4-5.) Such conclusory contentions are
simply insufficient to meet his burden. See, e.g., Sanders v.
Kiley, 1995 WL 77916 at *6 (plaintiff's "wholly conclusory
assertion" that he was "`insane'" did not justify tolling of
statute of limitations); O'Connor v. North Am. Phillips Lighting
Corp., 1989 WL 118224 at *5 ("The plaintiff's evidence of
depression and mental incapacity is thus vague and undocumented.
As such, it is legally insufficient to toll the statutory filing
period. . . ."); Dumas v. Agency for Child Dev., 569 F. Supp. 831,
834 n. 4 (S.D.N.Y. 1983) ("Of course, we need not assume the
correctness of conclusory assertions such as Dumas' statement
that `[t]his affliction left me generally unable to function in
society, and I was unable to protect my legal rights in
connection with my discharge.'").
Accordingly, Rhodes' has failed to show that his physical and
mental problems rendered him unable to pursue his legal rights
and thus has not shown any "extraordinary circumstances" to
justify an equitable tolling of the AEDPA limitations
period.*fn7 See cases cited above.
In sum, the Court agrees with Rhodes that physical or mental
illness could toll the AEDPA's one-year time period to file a
habeas corpus petition; however, a petitioner must allege more
than the mere existence of physical or mental ailments to justify
equitable tolling. A petitioner has the burden to show that these
health problems rendered him unable to pursue his legal rights
during the one-year time period. The Court is sympathetic to
Rhodes's medical conditions. However, the Court gave Rhodes two
opportunities to provide a "detailed affirmation" as to why he
could not file his petition on time. Rhodes's vague responses are
simply insufficient to support equitable tolling. "While
[petitioner] clearly suffers from a legitimate . . . illness,
[he] has failed to demonstrate that it disabled [him] to the
requisite degree." Speiser v. U.S. Dep't of Health & Human
Servs., 670 F. Supp. at 385. Rhodes's habeas petition is untimely
and not subject to equitable tolling.
III. RHODES'S REMAINING ARGUMENTS AS TO WHY THIS COURT SHOULD
NOT APPLY THE ONE-YEAR LIMITATIONS PERIOD TO HIS PETITION ARE
A. Due Process and Retroactivity Argument
Rhodes argues that (a) the one-year limitations period should
not be applied to his petition because the limitations period
"may be only applied prospectively," relying on Landgraf v. USI
Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229
(1994), and (b) applying the one-year time limitations period to
his petition violates the Due Process Clause.
Rhodes's first argument is meritless because the Court here is
applying the AEDPA prospectively, since Rhodes's petition was
filed after the AEDPA's effective date. See, e.g., Lindh v.
Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481
(1997) (the AEDPA's amendments, including the new limitations
periods for the filing of § 2254 petitions, "generally apply . .
. to cases filed after the Act became effective"). However, if
the AEDPA was applied in such a way as to bar Rhodes' petition
because his year to file his petition had elapsed prior to the
enactment of the statute, the limitations period established by
the AEDPA would result in serious retroactivity concerns and a
due process violation. See Ross v. Artuz, 150 F.3d 97, 100 (2d
Cir. 1998) (due process requires that petitioner be allowed
"reasonable time" to file action if newly enacted statute of
limitations would otherwise extinguish claim). To alleviate these
concerns, the Second Circuit held that a petitioner whose
conviction became final prior to the AEDPA's effective date has
one-year, the full amount of the limitations period, from the
April 24, 1996 effective date of the statute within which to file
his petition. See Ross v. Artuz, 150 F.3d at 103. The Second
We conclude that, in light of the importance of the
subject matter of habeas petitions and § 2255
motions, the grace period should be clear; and in
light of Congress's selection of one year as the
limitations period, we conclude that prisoners should
have been accorded a period of one year after the
effective date of AEDPA in which to file a first §
2254 petition or a first § 2255 motion. . . .
Our adoption of a grace period of one year means that
petitions filed pursuant to § 2254 and motions filed
pursuant to § 2255 are not barred by the statute of
limitations established by AEDPA if filed on or
before April 24, 1997.
Ross v. Artuz, 150 F.3d at 103. Therefore, because Rhodes was
afforded the full one-year to file his habeas petition after the
AEDPA's effective date, applying the limitations period to his
petition does not present retroactivity concerns or violate his
due process rights.
B. Suspension Clause
Rhodes relies on Judge Sweet's opinion in Rosa v. Senkowski,
97 Civ. 2468, 1997 WL 436484 (S.D.N.Y. Aug.1, 1997), aff'd on
other grounds, 148 F.3d 134 (2d Cir. 1998), for the proposition
that application of the AEDPA's one-year statute of limitations
would violate the Suspension Clause and thus be unconstitutional.
(Rhodes 5/29/98 Aff. at pp. 3-4.) In a series of scholarly
opinions, then District (now Circuit) Judge Sotomayor disagreed
with Judge Sweet's Rosa decision and found that applying the
one-year time limitations period to convictions that became final
prior to the effective date of the AEDPA did not violate the
Suspension Clause. Rodriguez v. Artuz, 990 F. Supp. 275, 277-84
(S.D.N.Y.), aff'd, 161 F.3d 763 (2d Cir. 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). Notably, the Second
Circuit recently affirmed Judge Sotomayor's opinion in Rodriguez
v. Artuz "for substantially the reasons stated by the district
court." Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998).
Additionally, this Court has previously stated its agreement with
Judge Sotomayor's series of opinions, Cromwell v. Keane,
33 F. Supp.2d 282, 286 (S.D.N.Y. 1999) (Rakoff, D.J. & Peck, M.J.),
and several other Judges in this district also have agreed with
Judge Sotomayor. See, e.g., Velasquez v. United States,
4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (Leisure, D.J.); O'Connor
v. Kuhlman, 97 Civ. 2914, 1998 WL 229516 at *1-2 (S.D.N.Y. May
7, 1998) (McKenna, D.J.); Lovett v. Kuhlmann, 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.); Rodriguez v. Bennett,
97 Civ. 5953, 1998 WL 104604 at *1 (S.D.N.Y. March 9, 1998)
(Rakoff, 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.).*fn8 Judge
Sweet's Rosa decision has not been followed by any other Judges
in the Circuit, so far as the Court can determine.
Thus, the AEDPA's one-year limitations period is not
For the reasons set forth above, I recommend that the Court
habeas corpus petition as untimely pursuant to 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 service 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 Denise
L. Cote, 500 Pearl Street, Room 1040, 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
Cote. 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).