The opinion of the court was delivered by: Wexler, District Judge.
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,
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
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 ...