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RHODES v. SENKOWSKI

January 21, 2000

STANLEY RHODES A/K/A HAMZA ABDAR RASHID, PLAINTIFF,
V.
DANIEL SENKOWSKI, DEFENDANT.



The opinion of the court was delivered by: Buchwald, District Judge.

  MEMORANDUM AND ORDER

Petitioner's court-appointed counsel has filed objections to the comprehensive and well-cited Report and Recommendation of Magistrate Judge Andrew J. Peck, which recommended the dismissal of this habeas petition on the ground that it was untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA") as it was filed after April 24, 1997 and that petitioner had not established the extraordinary circumstances that would warrant a finding of equitable tolling.

Counsel notes that he has no objection to the Court's analysis of the law. However, he does object on two grounds. First, counsel maintains, based on a report of a social worker that was apparently not before Judge Peck, that petitioner lacked the intellectual capacity to meet the one-year filing period. Second, counsel objects on medical grounds to Judge Peck's report. Consistent with the mandate of 28 U.S.C. § 636(b)(1), we have considered the matters which are the subject of the objections de novo. For the reasons set forth below, we accept and adopt the Report and Recommendation of Judge Peck.

As for the suggestion that petitioner was not possessed of the intellectual capacity to comply with the one-year filing requirement, which has been raised for the first time in these objections, a review of the submissions by the petitioner belies counsel's suggestion. Moreover, the report of the social worker does not support the conclusion urged. The social worker concludes that petitioner's intellectual functioning is "borderline", that [h]e is not mentally retarded, and that there is "no sign of mental illness." As to the argument that Judge Peck's analysis of petitioner's mental condition was deficient, a review of the objections points to no sufficient basis for that contention. The burden is, after all, the petitioner's. Judge Peck's conclusion that it was not met is amply supported by the record.

For the foregoing reasons and on the basis of Judge Peck's Report and Recommendation, the petition is dismissed as untimely filed under the AEDPA.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

Because petitioner Stanley Rhodes's state court conviction became final in 1990, long before passage of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), he was required by the Second Circuit's decision in Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998), to bring his present federal habeas corpus petition by April 24, 1997. However, he did not bring the petition until February 1998. Rhodes claims that he is entitled to "equitable tolling" of the AEDPA's time limitation because of his medical condition, including the fact that he has AIDS. For the reasons set forth below, the Court holds that the AEDPA's one-year statute of limitations is subject to equitable tolling, but that petitioner Rhodes has not shown the extraordinary circumstances that would justify such tolling in his case. Accordingly, I recommend that the Court dismiss the petition as barred by the AEDPA's one-year statute of limitations.

PROCEDURAL BACKGROUND

Petitioner Stanley Rhodes's petition is dated February 9, 1998 and was received by the Court's Pro Se Office on February 17, 1998. (See Pet. at p. 1; Rhodes Br. at 21.)*fn1

On March 18, 1985, Rhodes was convicted of murder and sentenced to 25 years to life imprisonment. (Pet. ¶ 4; Ans. ¶¶ 2, 5.) See also People v. Rhodes, 154 A.D.2d 279, 279, 546 N.Y.S.2d 583, 583-84 (1st Dep't 1989), appeal denied, 75 N.Y.2d 816, 552 N.Y.S.2d 567, 551 N.E.2d 1245 (1990) (table). The First Department affirmed Rhodes's conviction on October 24, 1989. People v. Rhodes, 154 A.D.2d 279, 546 N.Y.S.2d 583 (1st Dep't 1989). (See also Answer ¶ 9.) On January 12, 1990, the New York Court of Appeals denied Rhodes's application for leave to appeal. People v. Rhodes, 75 N.Y.2d 816, 552 N.Y.S.2d 567, 551 N.E.2d 1245 (1990) (table). (See also Answer ¶ 10.) By application dated May 22, 1993, Rhodes sought a writ of error coram nobis in the First Department, which was denied on August 19, 1993. (Ans. ¶ 11 & Exs. J, L.)

Over eight years after the completion of his state court appeal, Rhodes filed his federal habeas petition (dated February 9, 1998 and received by the Court's Pro Se Office on February 17, 1998). (Pet. at p. 1; Rhodes Br. at 21.) Rhodes's petition raised four claims: first, improper supplemental jury charge (Pet. ¶ 7; Rhodes Br. at 12-13); second, the prosecution improperly withheld evidence in violation of Brady v. Maryland and People v. Rosario (Pet. ¶¶ 8, 10; Rhodes Br. at 16, 18-21); third, ineffective assistance of counsel (Pet. ¶¶ 8, 9; Rhodes Br. at 17-18); and fourth, insufficient voir dire of a nine-year-old witness to determine her capacity to testify (Pet. ¶ 9).

On March 27, 1998, Chief Judge Griesa ordered petitioner "to show cause by affirmation why the [AEDPA's] statute of limitations should not bar the instant petition." (Dkt. No. 2: 3/27/98 Order at 2.) Rhodes filed an affidavit, dated May 14, 1998, arguing that the limitations period should be "equitably tolled" because his "past and continuing illness," AIDS, "rendered him physically, and mentally incapacitated to prepare and file his petition within the time limitation." (Dkt. No. 3: Rhodes 5/14/98 Aff. at pp. 4-5.) In support of this claim, Rhodes explained that:

On August 23, 1989, petitioner was informed that his test results were positive and that he in fact had contracted the HIV virus. . . .
Following several months of AIDS related medication, petitioner developed several opportunistic diseases and was hospitalized on about August 1991, as a result [of] his allergy to the HIV medication. From August 1991 to 1996, petitioner suffered with many of the opportunistic diseases resulting [in] severe bouts of depression, weight loss and fungal infections, all of which have contributed to petitioner's mental deterioration. . ..
Still extremely ill petitioner medical condition became life threatening and was again hospitalized on March 3, 1997. Thereafter, on May 28, 1997, petitioner's condition took a turn for the worse when his kidneys failed requiring extensive amounts of medication which rendered petitioner, both physically and mentally disabled. Following petitioner's recovery from kidney failure, petitioner sustained an extensive fungal infection which resulted in an extreme body rash that covered fifty per cent of petitioner's body. . . .

(Id. at pp. 1-4.) Additionally, Rhodes argued that the limitations period violated the Suspension and Due Process Clauses and could only be applied "prospectively." (Id. at pp. 5-10.)

After the case was referred to me, I ordered Rhodes to submit a "detailed affirmation describing for how long he was hospitalized on each of the two occasions, how frequently he was seen by prison medical personnel, and how he spent his days in prison, during the period April 24, 1996 to February 9, 1998." (Dkt. No. 9: 12/10/98 Order at 1-2, emphasis in original.)

On January 8, 1999, Rhodes submitted an undated affirmation which detailed his medical history between April 26, 1996 ...


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