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,
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.
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.
I. Time Limitations and Tolling under AEDPA
As set forth in the earlier orders of this court, Petitioner, whose
state court conviction became final several years prior to the April 24,
1996 effective date of AEDPA, had one year from that date (until April
24, 1997) in which to file a petition for a writ of habeas corpus.
Adeline v. Stinson, 206 F.3d 249, 251 (2d Cir. 2000); see Ross v. Artuz,
150 F.3d 97, 98 (2d Cir. 1998); Felton v. Mazzuca, 2002 WL 655207 *2
AEDPA provides for a toll of the one year period during certain
circumstances. Specifically, the one year time period is tolled during
the time when "a properly filed application for State post-conviction or
other collateral review . . . is pending." 28 U.S.C. § 2244 (d)(2).
Prisoners whose convictions became final prior to the affective date of
AEDPA are entitled to take advantage of this tolling provision. Bennett
v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd. on other grounds,
531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000).
When calculating the proper toll, the court must consider the precise
time period when a post-conviction motion is "pending." As recently set
forth by the Supreme Court in Carey v. Saffold, ___ U.S. ___, 122 S.Ct.
2134, 153 L.Ed.2d 260 (2002), a state court application is "pending" for
the purpose of AEDPA's toll, from the time of filing "until the
application has achieved the final resolution through the State's
post-conviction procedures." id. at 2138; see Bennett, 199 F.3d at 120
(properly filed petition is "`pending' from the time it is first filed
until finally disposed of and further appellate review is unavailable
under state procedures"). The relevant date of final disposition is the
date of issuance of a court order, not the date upon which such order is
received by petitioner. Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.
2000); Bond v. Walsh, 2002 WL 460046 *2 n. 2 (E.D.N.Y. 2002).
AEDPA's toll does not apply to the filing of all motions or other
papers seeking relief; it applies only to papers filed in connection with
relief recognized under relevant state procedures. Adeline v. Stinson,
206 F.3d at 252-53. Thus, the filing of "unrecognized motions for leave
to appeal" will not toll the running of the AEDPA statute of
limitations. Id. at 253; see, e.g., Bond v. Walsh, 2002 WL 460046 *2
(refusing to toll AEDPA statute during time period when habeas petitioner
ignored state procedures and sought relief "plainly unavailable" under
New York rules of procedure); Edwards v. Greiner; 2002 WL 1467708 *2
(E.D.N.Y. May 7, 2002) (refusing to toll AEDPA statute during time when
petitioner appealed denial of a section 440 motion to the Court of Appeals
since no such appellate review is available under New York law). As
recognized by the Second Circuit, any holding to the contrary would allow
a defendant to "stave off the running" of the statute of limitations for
as long as the state court was willing to keep open the door to its
clerk's office or `in perpetuity.' Adeline, 206 F.3d at 253.
It is important to note that AEDPA's tolling provision 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.) (per curiam), cert.
denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 (2000); Felton v.
Mazzuca, 2002 WL 655207 *2 (S.D.N.Y. 2002); 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.
McGinnis, 208 F.3d at 17; see Brooks v. Artuz, 1999 WL 138926 *2
(S.D.N.Y. March 15, 1999).
II. The Effect of a Federal Habeas Petition On Tolling
A. Duncan v. Walker
In Duncan v. Walker 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251
(2001), the Supreme Court made clear that a petition for habeas corpus
relief does not constitute "other collateral review" that tolls the AEDPA
period of limitations. Thus, contrary to prior Second Circuit law (which
Duncan reversed and upon which this court relied in its June 2000
decision), it is now clear that the filing of a federal habeas petition
that is later dismissed, does not effect the running of the AEDPA one
year period of limitation.
B. Zarvela v. Artuz
In Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, ___ U.S.
___, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001), a decision rendered after
Duncan, the Second Circuit considered the timeliness of a habeas petition
filed after a previously dismissed timely petition. In Zarvela, the
Second Circuit considered the options available to a district court
contemplating dismissal of a habeas petition containing both exhausted
and unexhausted claims. Prior to imposition of the one year statute of
limitations, dismissal of such a "mixed" petition, with leave to refile
after exhausting all claims in state court, would have no consequence on
a federal court's ability to render a decision on the merits. Thus,
before the effective date of AEDPA, it made no real difference whether a
district court chose to dismiss or stay a mixed petition.
Imposition of the one year statute of limitations, however, along with
the Supreme Court's holding in Duncan, makes the decision whether to stay
or dismiss critical to the timeliness issue. In cases
where the filing of the habeas petition was made shortly before the
running of the one year statute, dismissal of the petition could leave
little or no time for the petitioner to exhaust his state remedies before
returning to federal court with a fully exhausted second habeas
petition. Thus, dismissal could jeopardize a petitioner's ability to file
a later timely petition that could be decided on the merits. A stay, on
the other hand, would preserve the timeliness of the first filing.
To ameliorate the situation that exists where a mixed habeas petition
is filed just prior to the running of the AEDPA statute of limitations,
the Second Circuit held that certain circumstances dictate entry of a
stay, rather than outright dismissal, of the habeas petition. Zarvela,
254 F.3d at 380. The Second Circuit made clear in Zarvela, however, that
a stay is only required in cases where dismissal would jeopardize the
timeliness of a later collateral attack. Zarvela, 254 F.3d at 380. It was
further recognized that imposition of an indefinite stay would be
inappropriate. Instead, it was held that a stay should be conditioned
upon prompt action by the petitioner so as to comport with AEDPA's policy
of the timely disposition of habeas petitions. See Zarvela, 254 F.3d at
381-82; Aparicio v. Artuz, 269 F.3d 78, 91 n. 5 (2d Cir. 2001).
In sum, Zarvela holds that a mixed petition, filed on the eve of the
running of the AEDPA statute of limitations, should be stayed rather than
dismissed. A stay, however, is to be entered only on the condition that
the petitioner return to the state court in a timely manner (normally
within thirty days) and thereafter return promptly to federal court once
the state court has disposed of the previously unexhausted claims
(again, normally within thirty days). Zarvela, 254 F.3d at 381; e.g.,
Priester v. Senkowski, 2002 WL 1448303 *8 (S.D.N.Y. July 3, 2002)
(staying mixed habeas petition on condition that petitioner return to
state court within thirty days to appeal the denial of his section 440
motion to the Appellate Division).
Having outlined the relevant legal standards, the court turns to
consider the issues set forth in the Second Circuit's order of remand.
I. Consideration in Light of Duncan and Application of the "Mailbox
The decision of this court considered the timeliness of the present
petition under the impression that the filing of the first habeas petition
tolled the statute of limitations. Duncan makes clear, however, that this
was not the proper approach. Thus, the court turns to consider whether
the present petition is timely when considering only Petitioner's state
court proceedings. Specifically, the question is whether the state court
proceedings, standing alone, sufficiently tolled the AEDPA statute of
limitations so as to render the present petition timely.
Petitioner was convicted in 1992. Since Petitioner's conviction became
final prior to the enactment of AEDPA, he had 365 days from April 24,
1996, in which to file his habeas petition. 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 to be decided is whether Petitioner's state court
post-conviction activity tolled the statute sufficiently so as to render
the instant petition timely.*fn3 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.), cert., denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 497
Before turning to discuss particular time periods, the court notes that
a choice must be made when determining the date when a toll begins. As
set forth in the Second Circuit's order of remand, there is the issue of
whether the toll begins on the date that state court post-conviction
papers are handed to a prison official for mailing, as set forth in the
"mailbox rule" of Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101
L.Ed.2d 245 (1988). The court notes that since the order of remand, at
least one district court has held that the mailbox rule should govern
such decisions. See Fernandez v. Artuz, 175 F. Supp.2d 682, 687
Decision by this court on the mailbox rule issue is not necessary. This
is because, even assuming its application, the petition, as discussed
below, is not timely. Accordingly, for purposes of this opinion, the
court assumes application of the mailbox rule to calculation of the toll
of the AEDPA statute of limitations. The court has calculated the time
periods below (and accepts the dates in the light most favorable to
Petitioner) under the assumption that the handing of his state court
papers to prison officials begins the toll.
II. Calculation of Petitioner's AEDPA "Clock"
A. The AEDPA Period Was Tolled Between the Filing of the First Section
440 Motion and The Appellate Division's Denial of Leave to Appeal
Petitioner's AEDPA clock had 365 days as of April 24, 1996. The clock
ran for a period of 181 days, until October 22, 1996, when Evans gave the
First Section 440 Motion to prison officials for mailing. The handing of
these documents to prison officials is assumed, for purposes of this
opinion, to toll the AEDPA limitations period. Thus, as of October 22,
1996, Petitioner had 184 days left on his AEDPA clock. The County Court
denied the First Section 440 Motion on December 18, 1996 and on February
27, 1997, the Appellate Division denied Petitioner's request for leave to
appeal that decision.
As noted above, Petitioner is entitled to a toll of the AEDPA statute
of limitations for as long as this application for state court relief was
pending, i.e., from the time of filing until final resolution through
state post-conviction procedures. See Carey, 122 S.Ct. at 2138. Applying
this standard to New York's post-conviction procedures clearly tolls the
AEDPA statute of limitations from the filing of the First Section 440
Motion until the denial of appeal by the Appellate Division. Gomez v.
Duncan, 2002 WL 1424584 *3 (S.D.N.Y. July 1, 2002); see Geraci v.
Senkowski, 211 F.3d 6, 9 (2d Cir. 2000).
B. The AEDPA Period Was Not Tolled by Additional Motion Practice
Regarding the First Section 440 Motion
After the Appellate Division's February 27, 1997 denial of leave to
appeal the December 15 Decision, Evans engaged in additional motion
practice. He sought leave to appeal the Appellate Division February 27,
1997 order to the Court of Appeals. That request was denied by the Court
of Appeals on May 7, 1997.
Petitioner also sought to have the Appellate Division review the County
February 11, 1997, denial of reargument. The Appellate Division denied
this request for review on May 2, 1997, and the Court of Appeals denied
further review in an order dated June 26, 1997. Both the May 7, 1997 and
June 26, 1997 orders of the New York Court of Appeals state specifically
that review was declined because the orders sought to be appealed were
not appealable under New York State law.
Petitioner takes the position that each and every motion paper filed
tolled the running of the AEDPA statute of limitations. Respondent
disagrees. While conceding that the Appellate Division order of February
27, 1997 tolled the AEDPA statute, it is argued that neither the May 2,
1997 denial of leave to appeal the motion to reargue the February 11,
1997 decision, nor the two Court of Appeals decisions denying leave to
appeal, should have any effect on the running of the statute. This
argument is based upon the contention that these motions are not
authorized under New York State procedural law.
AEDPA's toll applies only to post-conviction applications that are
"properly filed." See 28 U.S.C. § 2244 (d)(2). While this requirement
has nothing to do with the merits of motions filed, the "properly filed"
requirement has everything to do with state procedural law. As recognized
by the Second Circuit, papers are "properly filed," and AEDPA is tolled,
only if the papers are filed in connection with relief recognized under
relevant state procedures. Adeline v. Stinson, 206 F.3d at 252-53. Thus,
the filing of "unrecognized motions for leave to appeal" will not toll
the running of the AEDPA statute of limitations. Id. at 253. As
demonstrated below, because neither the motion to appeal the denial of
reargument, nor the motions for leave to appeal to the Court of Appeals,
are recognized under New York State procedural law, the pendency of these
two motions did nothing to toll the statute of limitations.
1. AEDPA Is Not Tolled During the Pendency of An Appeal of a Trial
Court's Denial of a Motion to Reargue
New York law is clear that there is no procedural vehicle for appeal of
a motion to reargue. Falci v. Battista, 240 A.D.2d 364, 364,
658 N.Y.S.2d 1015, 1015 (2d Dep't 1997); Mardiros v. Ghaly, 175 A.D.2d 680,
680, 573 N.Y.S.2d 927, 927 (4th Dep't 1991); Sturgis v. Wolfe,
148 A.D.2d 770, 771, 538 N.Y.S.2d 350, 352 (3d Dep't 1989); Fahey v.
County of Nassau, 111 A.D.2d 214, 214, 489 N.Y.S.2d 249, 249 (2d Dep't
1985); Magliano v. Merckling, 99 A.D.2d 825, 826, 472 N.Y.S.2d 419, 419
(2d Dep't 1984). Because no such appeal exists, the time period in
between the filing of the motion for leave to appeal the trial court's
February 11, 1997 denial and the Appellate Division's May 2, 1997, denial
of leave to appeal does not operate to toll the AEDPA statute of
2. AEDPA Is Not Tolled During the Pendency of Unauthorized Motions
Seeking Leave to Appeal to the New York Court of Appeals
The same conclusion is reached with respect to Petitioner's motions
seeking leave to appeal to the New York Court of Appeals. After the
Appellate Division denied Petitioner leave to appeal the First Section 440
Motion, the "door to the New York Court of Appeals was closed and further
appellate review was unavailable." Hizbullahankhamon v. Walker
motion seeking leave for such appeal does not toll the AEDPA statute of
limitations. Similarly, because Petitioner had no procedural right to
appeal the February 11, 1997 denial of reargument, he also had no right to
appeal the May 2, 1997 decision on that motion to the Court of Appeals.
Because they were clearly unauthorized by New York procedural law,
Petitioner's motions to the Court of Appeals seeking review of the
Appellate Division decisions of February 27, 1997 and May 2, 1997, are
irrelevant to the running of the AEDPA statute. Accordingly, neither the
May 7, 1997 decision by the Court of Appeals denying leave to appeal the
February 27, 1997 decision nor the June 26, 1997 Court of Appeals denial
of leave to appeal the May 2, 1997 decision of the Appellate Division had
any effect on the running of the AEDPA statute. Accord Colon v. People,
2002 WL 1380000 *2 (S.D.N.Y. June 27, 2002) (refusing to toll AEDPA
statute during time when petitioner appealed denial of a section 440
motion to the Court of Appeals); Edwards v. Greiner, 2002 WL 1467708 *2
(E.D.N.Y. May 7, 2002) (same).
III. Petitioner's State Court Collateral Attacks to His Convictions Did
Not Operate As a Sufficient Toll to Render the Present Petition
In view of the foregoing, Petitioner had 184 days remaining on his
AEDPA clock as of February 27, 1997 — the date the Appellate
Division denied leave to appeal the denial of the First Section 440
Motion. Those 184 days ran on August 30, 1997. Petitioner took no further
state court action attacking his conviction until January 27, 1998, when
he submitted his second motion pursuant to Section 440 of the Criminal
Procedure Law (the "Second Section 440 Motion"). The Second Section 440
Motion was therefore not filed until 151 days after the running of the
AEDPA statute of limitations. Because a new motion cannot revive an
already expired statute, the Second 440 Motion does not toll the statute
of limitations. Petitioner's present habeas petition is time barred.