of habeas corpus until February 8, 2002. As such, his petition is untimely.
However, certain periods of time are tolled under the AEDPA. For
example, the one year statute of limitations is tolled when "a properly
filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending . . . ."
28 U.S.C. § 2244(d)(2). "[A] state court-petition is `pending' from
the time it is first filed until finally disposed of and further
appellate review is unavailable under the particular state's procedures."
Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999).
It is well-settled that no appeal lies to the New York Court of Appeals
from an order of the Appellate Division denying an application for a writ
of error coram nobis. People v. Williams, 742 N.Y.S.2d 603, 97 N.Y.2d 748
(N.Y. 2002); People v. Green, 735 N.Y.S.2d 486, 97 N.Y.2d 626 (N.Y.
2001). In addition, no appeal lies to the New York Court of Appeals from
"an order of a single Justice of the Appellate Division denying leave to
appeal to that Court pursuant to CPL 460.15." People v. Johnson,
746 N.Y.S.2d 688, 98 N.Y.2d 687 (N.Y. 2002); People v. Grossmann,
642 N.Y.S.2d 856, 87 N.Y.2d 1003 (N.Y. 1996); People v. Jones,
626 N.Y.S.2d 752, 85 N.Y.2d 882 (N.Y. 1995).
As a result of these state procedural rules, the Second Circuit has
noted that a petition for a writ of error coram nobis "ceas[es] to be
pending on the date on which the Appellate Division denied it, because, as
of that date, `the door of the New York Court of Appeals [is] closed and
further appellate review [is] unavailable.'" Hizbullahankhamon v.
Walker, 255 F.3d 65, 70 (2d Cir. 2001) (citing Geraci v. Senkowski,
211 F.3d 6, 9 (2d Cir. 1999)). The same reasoning applies to a single
Justice of the Appellate Division's denial of leave to appeal to that
court pursuant to CPL 460.20. Geraci, 211 F.3d at 9.
In the instant case, the petitioner filed two motions after his
conviction became "final" under the AEDPA: (1) a motion to vacate his
conviction pursuant to CPL 440 (filed on April 5, 2001 with no further
appellate review available on October 22, 2001); and (2) a petition for a
writ of error coram nobis (filed on November 8, 2001 with no further
appellate review available on January 28, 2002). These periods of time are
not included under the statute of limitations. However, the following
periods of time are:
(1) April 20, 2000 to April 4, 2001-350 days;
(2) October 23, 2001 to November 7, 2001-16 days;
(3) January 29, 2002 to February 7, 2002-10 days.
This constitutes a total of 376 days. The petition is untimely unless
an additional period of time is excluded under the AEDPA. The
petitioner's argument that the statute of limitations was tolled during
the time it took the state to serve him with the decisions of the
Appellate Division is meritless. See Geraci, 211 F.3d at 9 (stating that a
motion is "pending" for AEDPA purposes from the time the motion is filed
until it is decided). Because there were no other motions that the
petitioner filed that could toll the statute of limitations, his petition
B. Equitable Tolling
The final issue is whether the doctrine of equitable tolling excuses
the petitioner's failure to comply with the time limitations. The
doctrine of equitable tolling is proper only in the "rare and exceptional
circumstance." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)
(internal quotation marks and citation omitted). To invoke this
doctrine, a petitioner must show that: (1) "extraordinary circumstances
prevented him from filing his petition on time"; and (2) he "acted with
reasonable diligence throughout the period he seeks to toll." Id. at 17
The petitioner argues that the Court should toll the statute of
limitations for a minimum of ten months because his appellate counsel
failed to inform him of the New York Court of Appeals' denial of his
application for leave to appeal. The respondent submits no reply brief
addressing this issue. Nevertheless, on its face, this argument appears
to lack merit. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.
2001) (holding that attorney error is not "extraordinary circumstances"
under the equitable tolling doctrine).
However, the petitioner argues that appellate counsel's actions
constituted "gross misconduct". Gross misconduct could constitute
"extraordinary circumstances". See Valverde v. Stinson, 224 F.3d 129, 133
(2d Cir. 2000) (finding the intentional confiscation by a correction
officer of prisoner's draft habeas petition and other legal papers to be
"extraordinary"). Because the petitioner has not stated the precise
actions that constituted "gross misconduct" and the respondent does not
address this allegation, an evidentiary hearing is necessary. See id. at
135 (remanding to the district court for an evidentiary hearing to
develop the facts relevant to the petitioner's claim of equitable
tolling). As such, the Court directs the parties to appear for an
evidentiary hearing which is limited solely to the issue of equitable
Based upon the foregoing, it is hereby
ORDERED, that the petitioner, his present counsel and the respondent
are to appear for an evidentiary hearing before this Court on January 9,
2003 at 9:30 a.m.; and it is further
ORDERED, that the petitioner's former appellate counsel Dennis M.
Lemke, Esq. is directed to appear on the above-noted date with all
documents pertaining to his representation of the petitioner and to
testify as a witness concerning when he notified the petitioner that the
New York Court of Appeals denied his application for leave to appeal and
to give any further relevant testimony concerning the issue of equitable
tolling; and it is further
ORDERED, that the Clerk of the Court is directed to serve Lemke with a
copy of this order at his business address: 114 Old Country Road, Suite
200, Mineola, New York 11501; and it is further
ORDERED, that the petitioner's counsel is to arrange the production of
her client for the evidentiary hearing.
© 1992-2003 VersusLaw Inc.