United States District Court, Eastern District of New York
June 30, 2000
WILLIAM EVANS, PETITIONER,
DANIEL SENKOWSKI, SUPERINTENDENT CLINTON CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Wexler, District Judge.
MEMORANDUM AND ORDER
William Evans petitions this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 1992 state court
convictions on robbery charges. In a decision dated October 12,
1999, (the "October 1999 Order"), the court reserved decision on
this Petition and ordered the parties to submits briefs on what
was, at the time, a novel statute of limitations issue. Counsel
was appointed for Petitioner to facilitate a full briefing of the
legal issue raised by the court.
The parties have recently submitted the briefs contemplated by
the October 1999 Order. Upon review of the briefs and a recent
decision by the Court of Appeals for the Second Circuit, this
matter is now ripe for adjudication. For the reasons set forth
below, the Petition is dismissed as untimely.
I. Time Limitations and Tolling under AEDPA
As set forth in the October 1999 Order, familiarity with which
is assumed, Petitioner, whose state court conviction became final
several years prior to the effective date of AEDPA, had one year
from that date in which to file a petition for a writ of habeas
corpus. That one year statute of limitations is tolled under the
circumstances set forth in AEDPA.
Of significance in this case was the question of whether the
filing of a federal habeas petition (which is later dismissed
without prejudice) tolls the running of the AEDPA statute of
limitations pursuant to 28 U.S.C. § 2244(d)(2). Specifically, the
court questioned whether the filing of a federal habeas petition
constituted "other collateral review" within the meaning of the
I. AEDPA is Tolled When a Federal Habeas Petition is Pending
Since the October 1999 Order, the Second Circuit has ruled upon
the precise issue raised herein. In Walker v. Artuz,
208 F.3d 357 (2d Cir. 2000), the court held that a prior properly filed
habeas corpus petition, dismissed without prejudice, tolls the
one-year limitations period under AEDPA.
In Walker, the petitioner filed two habeas petitions, the
second of which was dismissed as untimely because it was filed
more than one year after the completion of Petitioner's direct
criminal appeal, and nearly one year after the court dismissed
the first habeas petition. The Second Circuit held that the time
period when a properly filed habeas corpus petition is pending in
federal court should be excluded from the one year statute and
rejected the interpretation that would include only state
procedures or remedies within the
phrase "other collateral review." Walker, 208 F.3d at 358.
Noting that the AEDPA toll applies only to "properly" filed
habeas petitions, the Second Circuit rejected the notion that its
holding would encourage the filing of successive, frivolous
habeas petitions filed for the sole purpose of extending the
statute of limitations. See Walker 208 F.3d at 358. Such
petitions would likely follow the dismissal of a petition on the
merits and would therefore not toll the AEDPA time period. On the
other hand, where, as here, a habeas petition is dismissed
without prejudice, the running of the statute of limitations is
tolled. Id.; see 28 U.S.C.A. § 2244(b), (d)(2) (AEDPA
restriction on successive petitions if a prior petition was
dismissed on the merits or with prejudice).
In light of the foregoing, it is now clear that it is proper to
toll the statute of limitations for the period during which the
first habeas petition in this matter was pending. The court turns
then to consider whether, taking this toll into account, the
instant petition is timely.
II. Relevant Dates
Petitioner was convicted in 1992. Since Petitioner's conviction
became final prior to the enactment of AEDPA, the date when the
one year statute of limitations began to run was April 24, 1996.
See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). In the
absence of any tolling, this petition would have been required to
have been filed by April 24, 1997. The petition, however, was not
filed until June 30, 1998. The question raised is whether
post-conviction activity, including the earlier habeas petition,
tolled the statute sufficiently so as to render the instant
Petitioner's post-conviction activity that took place after
April 24, 1996, must be considered when calculating the AEDPA
time period. See Torres v. Miller, 1999 WL 714349 *3 (S.D.N Y
August 27, 1999); Perez v. Bennett, 1999 WL 553782 * 1
(S.D.N.Y. July 29, 1999); Burnie v. People, 1999 WL 342243 * 1
(E.D.N.Y. May 7, 1999).*fn1 With respect to such activity, the
date upon which a motion is filed stops the running of the AEDPA
clock and the day that the motion is finally decided starts the
AEDPA clock running once again. See Geraci v. Senkowski,
211 F.3d 6, 9 (2d Cir. 2000).
The tolling provision of AEDPA does not allow the one year
period to run anew each time a post-conviction motion is ruled
upon. Instead, the statute merely excludes from the calculation
of the one year period any time during which post-conviction
relief is pending. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000); Torres v. Miller, 1999 WL 714349 *4 (S.D.N.Y. August 27,
1999). Thus, the provision stops, but does not reset, the clock
from ticking on the time in which to file a habeas petition. It
cannot revive a time period that has already expired. See Brooks
v. Artuz, 1999 WL 138926 *2 (S.D.N.Y. March 15, 1999).
The October 1999 Order reflected uncertainty concerning
relevant dates necessary to calculate whether this second habeas
petition is timely. Upon request, briefs were submitted regarding
both the legal issue discussed above as well as the precise dates
necessary to make the proper calculation.
The submissions presently before the court make clear that the
parties agree that the dates to be considered by the court are as
• the August 6, 1996 filing of the first habeas
• the June 18, 1996 dismissal, without prejudice, of
the first habeas petition;
• the February 2, 1998 filing of a motion pursuant to
Section 440.10 of the New
York Criminal Procedure Law (the "Section 440
• the April 14, 1998 final decision on the Section
440 Motion and,
• the June 30, 1998 filing of the present petition
Taking the above dates into account, it is now clear to the
court that Petitioner's AEDPA clock began to run on April 24,
1996, the effective date of AEDPA, and ran for a period of 104
days until the filing of the first habeas petition on August 6,
1996, when the statute was tolled. The statute began to run
again, with 261 days remaining (365 days minus 104 days), on June
18, 1997, the date this court granted Petitioner's request to
dismiss the first petition without prejudice. Thereafter, the
statute ran for an additional 229 days (for a total of 333 days),
until February 2, 1998, when Evans filed his Section 440 Motion.
Upon the filing of this motion, Evans was left with 32 days on
the AEDPA time clock (365 days minus 333 days). The final 32 days
of the AEDPA clock began to run on May 14, 1998, when the
Appellate Division of the New York State Supreme Court denied
petitioner's application for leave to appeal from the denial by
the County Court, Nassau County, of the Section 440 motion.
Forty-seven days elapsed between the final state court action
and the filing of this habeas petition on June 30, 1998. Because
Evans had only 32 days remaining on the AEDPA clock when the
State Court took its final action, the present petition for
habeas corpus was filed 15 days after the running of the AEDPA
statute of limitations and must therefore, be dismissed as
In a final argument, Petitioner seeks to have his petition held
timely based upon the argument that he did not receive the final
state court action with respect to his Section 440 Motion until
May 21, 1998. It is argued that the AEDPA clock should not begin
to run until Petitioner's actual receipt of the ruling on the
Section 440 Motion. There is no provision in AEDPA that extends
the toll of the statute of limitations until actual notice of a
ruling is received. Blouin v. Headley, 70 F. Supp.2d 221, 224
(E.D.N.Y. 1999). Indeed, the Second Circuit has recently made
clear that a motion is "pending" for AEDPA purposes not until
notice of a final action is received but, rather, only from the
time the motion is filed until it is decided. Geraci v.
Senkowski, 211 F.3d 6, 9 (2d Cir. 2000). Accordingly, the court
must reject a calculation of the time period based upon actual
In light of the fact that the AEDPA statute ran when the
present petition was filed, the court considers whether it is
appropriate to apply equitable tolling to the AEDPA statute of
limitations to render the present petition timely. See Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Equitable tolling
applies only if "rare and exceptional" circumstances make it
impossible to file a petition on time. Smith, 208 F.3d at 17;
Torres v. Miller, 1999 WL 714349 *6 (S.D.N.Y. August 27, 1999);
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
Petitioner bears the burden of establishing an 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).
Upon consideration of the circumstances herein and the
standards referred to above, the court holds that Petitioner has
alleged no facts that would justify an equitable tolling of the
AEDPA statute of limitations.
In light of the foregoing, the petition is dismissed as
untimely. The Clerk of the Court is directed to close the file in