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EVANS v. SENKOWSKI

October 17, 2002

WILLIAM ANTHONY EVANS, PETITIONER,
V.
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 and ordered the parties to submits briefs on what was, at the time, a novel statute of limitations issue. That issue was whether or not the filing of a prior habeas petition tolls the one year statute of limitations contained in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA").

After identifying and requesting briefing on this issue, the Second Circuit decided the case of Walker v. Artuz, 208 F.3d 357 (2d Cir. 2000). There, the court held that a prior properly filed habeas corpus petition. dismissed without prejudice, tolls the one-year limitations period under AEDPA. After the decision of the Second Circuit in Walker, this court issued a memorandum and order dated June 30, 2000. The decision held that even assuming the toll, the petition was, nonetheless, untimely.

Petitioner appealed the June 30, 2000 dismissal to the Second Circuit. While the appeal was pending, the United States Supreme Court reversed the Second Circuit's Walker decision, see Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). In Duncan, the Supreme Court held that a petition or habeas corpus relief does not constitute "other collateral review' that tolls the AEDPA period of limitations. In light of the decision in Duncan, the parties entered into a joint stipulation to remand this action.

The Second Circuit's order of remand directs this court to consider three specific issues. First, this court is to determine the timeliness issue in light of the Supreme Court's decision in Duncan as well as in light of the Second Circuit case of Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001). Second, if the court continues to conclude that this petition is untimely, the court is to consider whether it remains untimely if the court applies the "mailbox rule" of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). As a related matter, this court was directed to address burden of proof issues in connection with application of the mailbox rule. Third. the Second Circuit's remand order directs that, even if the petition is held untimely after consideration of the foregoing issues, this court is to consider whether the petition should be decided on the merits on the ground of actual innocence.

BACKGROUND

I. Petitioner's State Convictions

Evans was convicted in New York State Court on charges stemming from several bank robberies that took place between November 8, 1989 and February 7, 1990. After being charged with two counts of first degree robbery, one count of third degree robbery and one count of third degree attempted robbery, a pretrial suppression hearing was held. That hearing resulted in a determination that the seizure of Petitioner's car was appropriate and identification testimony as well as oral statements made by Evans to police would be admissible at trial.

After a jury trial, Evans was convicted on each count of the indictment. On May 12, 1992, he was sentenced. That sentenced was later vacated by the trial court and Evans was ultimately sentenced, on June 1, 1992, as a persistent felony offender, to four consecutive terms of incarceration of twenty-five years to life.

II. Post-Conviction Litigation

A. Direct Appeal

Evans appealed his conviction to the Appellate Division of the New York State Supreme Court ("Appellate Division"). The Appellate Division issued a decision affirming the conviction in all respects. Specifically, the Appellate Division rejected arguments: (1) attacking the veracity of the testimony of police officers; (2) alleging the impropriety of the warrantless arrest of defendant and accompanying seizure of his vehicle; (3) that Evans was deprived of his right to remain silent; (4) that a hearing was required prior to the denial of a speedy trial motion; (5) that the trial judge was biased and (6) that the sentence was excessive. Despite the affirmance of the conviction, the Appellate Division exercised its discretion to modify Petitioner's sentence to four concurrent (as opposed to consecutive) terms of imprisonment of twenty-five years to life. See People v. Evans, 212 A.D.2d 626, 623 N.Y.S.2d 4 (2d Dep't 1995). In an order dated May 15, 1995, the Appellate Division denied a motion for reargument of the appeal. Evans sought leave to appeal his conviction to the New York State Court of Appeals. That request was denied. See People v. Evans, 86 N.Y.2d 841, 634 N.Y.S.2d 451, 658 N.E.2d 229 (1995).

B. First Habeas Petition

Evans submitted a petition for habeas corpus relief to this court in 1996. Respondent argued that certain claims presented in that petition were unexhausted and urged that those claims be treated as subject to a procedural bar. In response, Petitioner wrote a letter to this court dated June 7, 1997, seeking to withdraw his petition without prejudice or, in the alternative, to adjourn decision on the petition for a period of one year, to permit the gathering of evidence in support of Petitioner's claims. On June 18, 1997, this court dismissed, without prejudice, the first habeas petition.

C. State Court Collateral Attack

Despite the fact that Petitioner had filed a petition for habeas relief, he continued to seek collateral relief from his conviction in state court. On October 30, 1996, the County Court for Nassau County received Petitioner's motion, pursuant to Section 440 of the New York State Criminal Procedure Law, to vacate his conviction and set aside his sentence (the "First Section 440 Motion"). Evans has taken the position that he handed the First Section 440 Motion to prison officials for mailing on October 22, 1996.*fn1

On December 18, 1996, the County Court denied Petitioner's First Section 440 Motion (the "December 18 Decision"). After receiving notice of this denial, Evans made an application to the Appellate Division, dated January 9, 1997, for leave to appeal the December 18 Decision. On February 27, 1997, the Appellate Division denied this application for leave to appeal. Evans sought to appeal the February 27, 1997 decision to the New York Court of Appeals. In an order dated May 7, 1997, the New York Court of Appeals denied leave to appeal, stating that the order was not appealable under the Criminal Procedure Law.

At the same time that Evans was litigating the December 18 Decision, he was also litigating a motion to amend/reargue the First Section 440 Motion. Specifically, on December 20, 1996, two days after the December 18 Decision, Evans submitted to the County Court a motion to "amend" the First Section 440 Motion. Presumably, this request for amendment was made prior to Petitioner's knowledge of the December 18 Decision.

In an order dated February 11, 1997, the County Court, having deemed the December 20 motion to amend to be a motion to reargue, denied the motion. Evans sought to appeal the denial of reargument and moved, before the Appellate Division, for leave to appeal the County Court's February 11, 1997 decision on that motion.*fn2 On May 2, 1997, the Appellate Division denied the application for leave to appeal the denial of reargument. Evans sought to appeal that decision to the New York Court of Appeals. In an order dated June 26, 1997, the Court of Appeals dismissed this application in similar fashion to its earlier decision stating, once again, that the order sought to be appealed from was not appealable.

Evans instituted a second motion pursuant to Section 440 of New York's Criminal Procedure Law in 1998 (the "Second Section 440 Motion"). According to Evans, the Second Section 440 Motion was given to prison officials for mailing on January 27, 1998. The records of the County Court indicate receipt of this motion on February 2, 1998. On March 24, 1998, the County Court denied the Second Section 440 Motion. On April 1, 1998, Evans sought leave to appeal the denial of the Second Section 440 Motion to the Appellate Division. On May 14, 1998. the Appellate Division denied the request for leave to appeal.

D. The Second Habeas Petition

On June 22, 1998, Evans gave his second habeas petition to prison officials for mailing. That petition, the timeliness of which is at issue here, was received in this court on June 30, 1998.

DISCUSSION

I. Time Limitations and Tolling ...


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