September 19, 1990, the Appellate Division, Second Department,
denied leave to appeal.
On February 19, 1991, the Petitioner filed his first
application for a writ of habeas corpus with this Court. He
claimed that the state court erred in denying his 1982
postjudgment motion because witness Peter Johnson was an
accomplice, and as such the court erred in not requiring that
his testimony be corroborated. On June 20, 1991, the Petitioner
requested that the Court dismiss his application without
prejudice, because he had not fully exhausted state remedies. In
October 1991, this Court dismissed the Petitioner's application
On May 1, 1992, the Petitioner filed his fourth post-judgment
motion pursuant to N.Y.Crim. Proc. § 440.10(h), again alleging
that he was denied effective assistance of trial counsel for
failing to properly advise him regarding the jury trial waiver,
and that his waiver of a jury was invalid because he suffered
from a mental defect. On August 25, 1992, the County Court,
Nassau County (Orenstein, J.), denied the motion. On October 21,
1992, the Appellate Division, Second Department, denied leave to
On February 4, 1994, the Petitioner filed a second habeas
corpus petition with this Court, alleging ineffective
assistance of trial counsel. Specifically, the Petitioner
claimed that counsel failed to advise him of his right to
challenge the indictment; that counsel failed to adequately
prepare for trial by not thoroughly investigating the facts or
law of the case; that counsel did not sufficiently inform the
Petitioner what privileges he jeopardized by waiving a jury
trial; and that counsel should have known that the Petitioner
was suffering from a mental defect and did not make a knowing or
intelligent waiver of a jury trial.
By decision dated March 22, 1996, this Court found that the
Petitioner had not exhausted the state court remedies for his
first ground of ineffective assistance of counsel. In accordance
with the law at the time, the Court dismissed the entire
In August 1997, the Petitioner filed his fifth motion to
vacate the judgment in state court, alleging that trial counsel
did not advise him of his right to appear before the Grand Jury
prior to indictment pursuant to N.Y.Crim.Proc. Law § 190.50. On
October 9, 1997, the County Court, Nassau County (Jonas, J.),
denied the Petitioner's motion on procedural grounds, finding
that he could have raised this issue in his previous motions,
and he did not comply with other procedural requirements. On
January 27, 1998, the Appellate Division, Second Department,
denied leave to appeal.
On October 6, 1998, the Petitioner filed this proceeding for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254.
Petitioner argues that his trial counsel was ineffective
because: first, he failed to advise the Petitioner of his right
to challenge the indictment before pre-trial proceedings;
second, he failed to adequately investigate the facts and law
applicable to the Petitioner's case; third, he failed to advise
the Petitioner about the privileges jeopardized by waiving a
jury trial; and finally, counsel should not have advised the
Petitioner to waive a jury trial where the Petitioner had an
obvious mental condition.
The Anti-terrorism and Effective Death Penalty Act of 1996
("AEDPA") establishes that a petitioner must file his
application for writ of habeas corpus within one year of his
conviction becoming final — that is, at the conclusion of direct
review. See 28 U.S.C. § 2244(d)(1)(a); Williams v. Artuz,
237 F.3d 147, 150 (2d Cir. 2001); Wims v. U.S., 225 F.3d 186,
189 (2d Cir. 2000). When a petitioner's
conviction became final prior to the April 24, 1996 effective
date of the AEDPA, the petitioner has one year from the
effective date of the Act to commence a habeas action. See
Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000); Ross v.
Artuz, 150 F.3d 97, 102 (2d Cir. 1998). The Petitioner's
conviction became final in December 1984, when the Court of
Appeals denied leave to appeal. Accordingly, this action is
subject to the AEDPA's April 1997 statute of limitations. See
Williams v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 146
L.Ed.2d 435 (2000).
Applying these principles, the Court concludes that Petitioner
failed to timely file his habeas corpus petition. Because
Petitioner's conviction became final before the AEDPA, he had
until April 24, 1997, to file a petition for writ of habeas
corpus. At the time his AEDPA year began to run on April 24,
1996, the Petitioner had no pending collateral proceedings, and
thus, his time under the AEDPA began running and continued
without interruption until May 1997. The instant petition, filed
October 6, 1998, is therefore untimely.
Although the petition was not filed within AEDPA's one-year
period, it could still be timely if the Petitioner is eligible
for equitable tolling. The Court may "equitably toll" the
statute of limitations when "extraordinary circumstances"
prevent a prisoner from timely filing a habeas petition. See
Warren, 219 F.3d at 113. Transfers between prison facilities,
solitary confinement, lockdowns, restricted access to the law
library and an inability to secure court documents do not
qualify as extraordinary circumstances. See Asencio v.
Senkowski, 2000 WL 1760908 at *2 n. 4 (S.D.N.Y. Nov. 30, 2000)
(holding solitary confinement does not qualify as extraordinary
circumstance), citing Hizbullahankhamon v. Walker,
105 F. Supp.2d 339, 344 (S.D.N.Y. 2000); Montalvo v. Strack, 2000
WL 718439 at *2 (S.D.N.Y. June 5, 2000) (holding transfers
between prison facilities do not merit equitable tolling);
Martinez v. Kuhlmann, 1999 WL 1565177 at *5 (S.D.N.Y. Dec. 3,
1999) (noting various circumstances not eligible for equitable
tolling, including lack of English language proficiency and lack
of aid in research).
The Petitioner argues that he did not become aware that the
Court dismissed his previous habeas corpus petition until May
26, 1997, due to a correctional facility transfer. However, even
if the Court found that this lack of knowledge constituted
extraordinary circumstances which prevented the Petitioner from
timely filing his current petition, the Petitioner does not
qualify for tolling because he failed to act diligently once he
received the decision.
Tolling is not automatic upon a showing of extraordinary
circumstances. "[T]he party seeking equitable tolling must have
acted with reasonable diligence throughout the period he seeks
to toll." Smith, 208 F.3d at 17. To make this showing, the
Petitioner must "demonstrate a causal relationship between the
extraordinary circumstances on which the claim for equitable
tolling rests and the lateness of his filing." Valverde v.
Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
Upon receiving the decision on May 26, 1997, the Petitioner
waited until July 1997, before filing his next state court
motion. After the state court decision became final on January
27, 1998, he waited approximately nine months before filing, the
instant habeas petition on October 6, 1998. Accordingly, the
Court finds that the Petitioner did not act with the reasonable
diligence necessary to receive equitable tolling. C.f. Jimenez
v. Walker, 166 F. Supp.2d 765, 772 (E.D.N.Y. 2001) (finding the
Petitioner acted with reasonable diligence where he pursued his
remedies within two weeks after the Court dismissed his
petition, and filed his second habeas petition six days after
the state court denied his post-judgment motions).
Here, the Petitioner presented no explanation for his lengthy
delays between filings. Notably, the claims alleged in the
instant petition are identical to those raised in his second
habeas petition. Similarly, because the claims in the
Petitioner's current petition had been investigated and prepared
for his 1997 state court motion, it is not clear why Petitioner
waited almost nine months after dismissal of that motion to file
the instant petition. Because the Petitioner did not act
reasonably diligently in pursuing his claims, he is not entitled
to equitable tolling.
Although not specifically argued by the Petitioner, the Court
also notes that the Petitioner's application would not be timely
even if the Court had stayed the exhausted claims in his second
petition in accordance with Zarvela v. Artuz, 254 F.3d 374 (2d
Cir. 2001). In Zarvela, the Second Circuit held that when
faced with a mixed petition, containing both exhausted and
unexhausted claims, the District Court may dismiss the
unexhausted claims and stay the exhausted claims until
exhaustion is completed. Here, if the Court chose to stay
Petitioner's 1994 petition, he would have had to return to the
state court for exhaustion within thirty days. See id. at 381.
Additionally, after the state court's decision became final, the
Petitioner would have had to return to this Court within thirty
days. See id. The Petitioner did not comply with either of
these requirements. The Petitioner waited almost three months
after he received the Court's decision in May 1997 before
returning to state court in July 1997. He then waited
approximately nine months after the state court decision became
final on January 27, 1998, before returning to this Court in
October 1998. Thus, his petition would be untimely regardless of
how this Court treated his 1994 habeas petition.
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED.
The Clerk of the Court is directed to close this case.
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