United States District Court, Southern District of New York
March 7, 2002
PEDRO PACHECO, PETITIONER,
CHRISTOPHER ARTUZ, SUPERINTENDENT GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge:
OPINION AND ORDER
Petitioner Pedro Pacheco ("Pacheco") has moved to stay his amended
petition for habeas corpus filed on May 24, 2000. Pacheco argues that a
stay is necessary to preserve the timeliness of his exhausted claims
while he exhausts the unexhausted claims in state court. Respondent
opposes the motion for a stay on the following grounds: (1) there is no
legally cognizable issue appropriate for habeas corpus review, and (2)
the underlying claim is time barred, notwithstanding a stay. Based on the
following, petitioner's motion is GRANTED.
On July 25, 1987, Julio Lopez was shot and killed while walking down a
Bronx street with two friends, Jose de Jesus and Adrian Caban. Amended
Petition ("Amd. Pet.") at 3. Pacheco was charged with the crime. On
September 27, 1989, he was convicted by a jury in Supreme Court, Bronx
County, on one count of murder in the first degree for Lopez's death.
Affirmation in Support of Motion to Stay Petition in Order to Permit
Exhaustion of State Remedies ("Pet. Aff.") at ¶ 3. On November 20,
1989, Pacheco was sentenced to an indeterminate term of imprisonment of
twenty years to life. Id. He filed a notice of appeal to the Appellate
Division, First Department, on November 21, 1989. Amd. Pet. at 2. On
April 8, 1993, his conviction was affirmed. People v. Pacheco,
595 N.Y.S.2d 780 (N.Y. App. Div. 1993). On April 15, 1993, Pacheco sought
leave to appeal from the New York Court of Appeals. Amd. Pet. at 2. The
application was denied on June 8, 1993. Id.
On May 16, 1997, Pacheco filed a pro se petition for habeas corpus
pursuant to 28 U.S.C. § 2254, asserting the following three grounds:
(1) his conviction was not sustained by legally sufficient evidence; (2)
he was denied his due process right to a fair trial when the judge
of the decedent's drug dealing; and (3) his sentence
was excessive. Pet. Aff. at ¶ 4. The petition was dismissed by
District Judge Griesa on December 2, 1997, as time barred under
28 U.S.C. § 2244(d). Id. at ¶ 5. On September 22, 1998, the
Second Circuit vacated Judge Griesa's decision in light of its
then-recent decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), and
remanded the matter for a determination of whether petitioner had timely
filed his petition with prison officials. Id. at ¶ 6. By Order dated
March 8, 1999, the matter was reopened. Id. at ¶ 7.
On February 22, 2000, Flora Edwards ("Edwards") entered her appearance
as Pacheco's counsel, and by Order dated March 10, 2000, was granted
permission to file an amended petition. Id. at ¶ 8. On May 24, 2000,
Pacheco filed an amended petition asserting a due process claim of actual
innocence based on newly discovered evidence. Id. at ¶ 9; Amd. Pet.
at 13. At the crux of the claim is an assertion that one of the
prosecution's main witnesses, Adrian Caban ("Caban"), perjured himself
when he identified Pacheco as the shooter. Amd. Pet. at 10. In support of
the amended petition, Pacheco submits an affidavit by Caban stating that
he is now willing to recant his previous statements and testify that
Pacheco was not the shooter. Id. at Exh. S (Affidavit of Adrian Caban).
The amended petition includes, inter alia, requests for a vacatur of
Pacheco's conviction and sentence in light of the newly discovered
evidence and the grounds set forth in his initial petition, and an
evidentiary hearing to offer proof in support of the petition. Amd. Pet.
at 23. The amended petition also requests, in the alternative, that the
Court dismiss the petition without prejudice to allow Pacheco to exhaust
his state remedies. Id.
On September 4, 2001, Pacheco filed a "Motion to Stay the Petition in
Order to Permit Exhaustion of State Remedies." Acknowledging that the
amended petition is a mixed petition containing both exhausted and
unexhausted federal claims, Pacheco filed the motion to stay, rather than
dismiss the petition, in accordance with the Supreme Court's decision in
Duncan v. Walker, 533 U.S. 167 (2001), and the Second Circuit's decision
in Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001). Memorandum of Law in
Support of Petitioner's Motion to Stay Petition Pending Exhaustion of
State Remedies ("Pet. Mem."). The Bronx County District Attorney's Office
filed an affidavit in opposition to the motion on January 29, 2002,
arguing that the stay should be denied in the interests of judicial
economy because the "newly discovered evidence" claim does not present an
issue cognizable upon habeas corpus review, and is also time-barred.
Affidavit in Opposition ("Aff. Opp.") at 1.
A. Substantive Exhaustion
Under 28 U.S.C. § 2254(b), amended in 1996 by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Title I, § 106(b),
Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), a federal court may
not consider a petition for habeas corpus unless the petitioner has
exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A).
The exhaustion doctrine requires a habeas petitioner challenging a state
conviction on federal grounds to have presented his or her claims to the
state courts first. See Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191
(2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048 (1984). In doing
so, petitioners are not obligated to cite "book and verse on the federal
constitution," Picard, 404 U.S. 270, 278 (1971) (quoting Daugharty v.
Gladden, 257 F.2d 750,
758 (9th Cir. 1958)), but they must provide
adequate notice to the state courts that they are to decide federal
constitutional claims. Such notice includes:
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state
cases employing constitutional analysis in like
fact situations, (c) assertion of the claim in
terms so particular as to call to mind a specific
right protected by the Constitution, and (d)
allegation of a pattern of facts that is well
within the mainstream of constitutional
Daye, 696 F.2d at 194; see also, Gray v. Netherland, 518 U.S. 152, 153
(1996); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).
Contrary to the respondent's argument that the petition "does not
present an issue cognizable upon habeas corpus review," Aff. Opp. at 1,
assertions of perjury and recantation present serious questions
appropriate for a court with habeas jurisdiction to examine. "[T]he use of
perjured testimony violates the due process clause when the court has `a
firm belief that but for [that] testimony, the defendant would most
likely not have been convicted.'" Sanders v. Sullivan, 900 F.2d 601, 606
(2d Cir. 1990) (Sanders II) (quoting Sanders v. Sullivan, 863 F.2d 218,
226 (2d Cir. 1988)) (Sanders I). At this point, this Court is merely
deciding whether or not a stay should be granted in order to enable the
petitioner to present evidence of his due process claim to the state
court. Without having conducted an evidentiary hearing to establish the
value or credibility of Caban's recantation, the Court need not decide at
this time the weight his testimony would have had on the jury who
deliberated on his conviction for purposes of granting or denying the
petition. The Court does find, however, that the allegations of perjury
and actual innocence contained in Pacheco's amended petition do present
issues appropriate for habeas review, such that the petition should not
be summarily dismissed at this point. See Morales v. Portuondo,
154 F. Supp.2d 706, 720 (S.D.N.Y. 2001) (the court found "the due process
implications were apparent," where petitioner offered statements of third
party as proof of actual innocence).
1. One-Year Statute of Limitations
A one-year statute of limitations applies to petitions for writs of
habeas corpus by state prisoners. 28 U.S.C. § 2244(d). The
limitations period begins to run from the latest of:
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 prevented from
filing such state action;
C) the date on which the constitutional right
asserted was initially 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.
28 U.S.C. § 2244(d)(1) (West Cumulative Annual Pocket Part 2001). In
interpreting § 2244(d)(1)(A), the Second Circuit recently held that
the limitations period "does not begin to run until the completion of
direct appellate review in the state court system and either the
completion of certiorari proceedings in the United States Supreme Court,
or — if the prisoner elects not to file a petition for certiorari
— the time to
seek direct review via certiorari has expired."
Williams v. Artuz, 237 F.3d 147
, 151 (2d Cir. 2001).
Petitioners whose convictions became final prior to the enactment of
the AEDPA are allowed a period of one year after the enactment date to
file their petitions. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
Pursuant to 28 U.S.C. § 2244(d)(2), the one-year limitations period
may be tolled during the pendency of "a properly filed application for
State post-conviction or other collateral review." This tolling provision
merely "excludes time during which properly filed state relief
applications are pending but does not reset the date from which the
one-year statute of limitations begins to run." Smith v. McGinnis,
208 F.3d 13, 17 (2d Cir. 2000) (per curiam), cert. denied, 531 U.S. 840
Pacheco's state court conviction became final on September 7, 1993, the
conclusion of ninety days during which he could have sought certiorari in
the United States Supreme Court. Ross, 150 F.3d at 98. Because his
conviction became final before the enactment of the AEDPA, the statute of
limitations for Pacheco's writ of habeas corpus began to run on April
24, 1996, and ended on April 24, 1997. Id. at 103. Pacheco filed his
amended petition on February 22, 2000, and it is, therefore, untimely
unless the tardiness of his petition is excused.
2. Newly Discovered Evidence Under 28 U.S.C. § 2244(d)(1)(D)
The AEDPA "newly discovered evidence" provision runs from "the date on
which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence,"
28 U.S.C. § 2244(d)(1)(D) (West Cumulative Annual Pocket Part 2001),
"from the date a petitioner is on notice of the facts which would support
a claim, not from the date on which the petitioner has in his possession
evidence to support his claim." Youngblood v. Greiner, 1998 WL 720681, at
*4 n. 4 (S.D.N.Y. Oct. 13, 1998).
Respondent argues that Pacheco's reliance on Caban's recantation as
"new evidence" under 28 U.S.C. § 2244(d)(1)(D) is unsound because
Caban's statements exonerating Pacheco could have been "discovered"
through due diligence. Affidavit in Opposition to the Amended Petition
("Aff. Opp. Pet.") at 12-14. Respondent argues that the statements
contained in Caban's affidavit are merely newly available, not newly
discovered, and thus is not covered under the aegis of§
2244(d)(1)(D). Citing Sorce v. Artuz, 73 F. Supp.2d 292, 298 (E.D.N.Y.
1999), and arguing that Caban could have been contacted sooner,
respondent appears to place particular importance on the fact that an
outside organization contacted Caban about Pacheco's case, rather than
Caban contacting the organization. Id. at 13. Respondent's reliance on
both, however, is misplaced.
First, the facts of Sorce are distinguishable from those of the instant
case. In Sorce, the petitioner sought to introduce the facts surrounding
his co-defendant's cooperation agreement as newly discovered evidence for
purposes of circumventing AEDPA's statute of limitations. 73 F. Supp.2d at
298. The petitioner argued that the statute of limitations began to run
as of the date when he obtained the documents about his co-defendant's
cooperation. Id. The court held that the petition was untimely because
the documents — procured through Freedom of Information Law
litigation — could have been earlier obtained through the exercise
of due diligence. Id.
Unlike the petitioner in Sorce, the evidence with which Pacheco invokes
§ 2244(d)(1)(D) consists of the recantation of perjured testimony
which could not simply have been obtained through the exercise of due
diligence. The Court notes that this is a case based on eyewitness
identification. Given the danger of an unreliable witness, petitioner had
no way of knowing whether the testimony was perjured or merely mistaken.
This sort of testimony is a unique form of newly discovered evidence in
that it is completely incumbent on the recanting witness confessing to
having misrepresented facts or having perjured himself "Liars are hard to
detect [. . . d]iscovery often comes by happenstance." Richard H.
Underwood, Perjury: An Anthology, 13 Ariz. J. Int'l & Comp. L. 307, 379
(Fall 1996). In many cases, no amount of due diligence on the part of a
petitioner can compel a witness to come forward and admit to prevaricated
testimony; that the witness must have lied in the first instance for a
reason. According to Pacheco's amended petition and the attached
affidavit by Caban, Caban "identifilied Pacheco,] an innocent man[,]"
Amd. Pet. at Exh. S (Affidavit of Adrian Caban), in order to collect a
reward from the police. Pacheco could not have "discovered" this evidence
— Caban's willingness to recant his identification and
affirmatively state that Pacheco was not the killer — until Caban
wrote a letter indicating that he was "willing to help him 100%," id.
(Letter from Adrian Caban), on August 16, 1999. Therefore, this Court
finds that Caban's statements exonerating Pacheco should be considered
"newly discovered" as of August 16, 1999,*fn1 for § 2244(d)(1)(D)
purposes. Because Pacheco's amended petition was filed on May 24, 2000,
well before the limitations period ended on August 16, 2000, this Court
finds that the amended petition was timely.
C. Mixed Petitions
Having decided that Pacheco's amended petition was timely filed, the
Court must now determine how to proceed with his mixed petition. Prior to
the enactment of the AEDPA, "mixed" petitions — those presenting
both unexhausted and exhausted claims — had to be dismissed in
their entirety; consequently, petitioners were left with the option of
either exhausting the unexhausted claims in state court, or abandoning
them entirely. See Rose v. Lundy, 455 U.S. 509, 519, 522 (1982). Now,
district courts presented with a mixed petition may proceed in one of the
following three ways: (1) deny the petition on their merits pursuant to
28 U.S.C. § 2254(b)(2), where the unexhausted claims are "patently
frivolous," Jones v. Senkowski, 2002 WL 246451, at *4 (2d Cir. Oct. 5,
2001); (2) dismiss the entire petition without prejudice, Zarvela v.
Artuz, 254 F.3d 374, 382 (2d Cir. 2001); or (3) stay the petition pending
the exhaustion of state remedies "where an outright dismissal `could
jeopardize the timeliness of a collateral attack.'" Id. at 380 (quoting
Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)).
In the instant case, Pacheco's claim of newly discovered evidence
proving actual innocence cannot be considered "patently frivolous" in
light of Caban's affidavit. Dismissing the petition in its entirely would
"jeopardize the timeliness of a collateral attack," Zarvela, 254 F.3d at
380, in that it would bar Pacheco from filing a
petition containing the same claims presented in the amended petition. The
appropriate course of action, therefore, is to stay Pacheco's amended
petition and retain jurisdiction pending exhaustion of state remedies.
Pursuant to the foregoing, Pacheco's motion to stay the petition is
IT IS HEREBY ORDERED THAT all proceedings on this petition for habeas
corpus are stayed to give Pacheco an opportunity to exhaust his state
remedies on the claim of actual innocence based on newly discovered
IT IS FURTHER ORDERED THAT
(1) Pacheco must file a motion to vacate the conviction in state
court, pursuant to New York Criminal Procedure Law § 440.10 by April
6, 2002; and
(2) Pacheco must return to this Court to renew his petition within
THIRTY DAYS after the state courts have completed their review of his
If Pacheco fails to fulfill both of these conditions, the Court may
vacate the stay nune pro tune as of the date of this Order, and the
petition may be dismissed. Zarvela, 254 F.3d at 381.