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