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United States District Court, Southern District of New York

January 30, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


To the Honorable Denny Chin, United States District Judge

Wayne Gillyard, currently in the custody of Attica Correctional Facility, petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent has moved to dismiss the petition as time-barred. See 28 U.S.C. § 2244(d)(1). For the following reasons, the motion should be granted.


A. The Trial and Direct Appeal

By New York County Indictment Number 421/92, filed on May 13, 1992, Gillyard was charged with two counts of Murder in the Second Degree (New York Penal Law §§ 125.25[1], [3]), two counts of Robbery in the First Degree (New York Penal Law §§ 160.15[1], [4]) and one count of Robbery in the Second Degree (New York Penal Law § 160.10[1]). See Memorandum of Law in Support of Motion to Dismiss, dated October 4, 2002 ("Resp. Motion") (annexed to Notice of Motion, Affirmation, Memorandum of Law & Exhibits in Support of Motion to Dismiss Petition as Timebarred, filed October 8, 2002 ("Notice")), at 2. A jury trial was held before Justice Alvin Schlesinger, Supreme Court, New York County, beginning November 24, 1992. Id. at 1-2. On December 3, 1992, Gillyard was found guilty of the only count submitted to the jury: Murder in the Second Degree. Id. at 2. On January 7, 1993, a judgment of conviction was entered sentencing him to a prison term of twenty years to life. Id.; see Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed January 8, 2001 ("Petition"), ¶¶ 2-4.

Gillyard appealed his conviction to the Appellate Division, First Department, alleging that i) the trial court erred in refusing to allow him the opportunity to introduce certain evidence at trial, and ii) the trial court should have given the jury an "accomplice-in-fact" instruction as to Muhammad Johnson, the sole eyewitness to the crime. See generally Brief for Defendant-Appellant, dated July 1998 ("Def. Brief") (reproduced in Notice, Ex. B). The Appellate Division affirmed the conviction by decision dated February 23, 1999. People v. Gillyard, 258 A.D.2d 381 (1st Dep't 1999). On June 24, 1999, the Court of Appeals denied Gillyard's application for leave to appeal. People v. Gillyard, 93 N.Y.2d 970 (1999). Gillyard did not file a petition for writ of certiorari to the United States Supreme Court or seek collateral review.

One week after the Court of Appeals denied leave to appeal, Gillyard's appellate counsel sent Gillyard a letter informing him of the denial of leave to appeal. Letter from Amy Donner, dated July 1, 1999 (annexed to Petitioner's Amended Affirmation, dated June 13, 2002 ("Amended Aff."), Ex. "Evidence 11#"), at 1. The letter also informed Gillyard that he could file a petition in federal court for writ of habeas corpus, describing in detail the issues that Gillyard could appropriately raise in such a petition. Id. at 2. Finally, the letter informed Gillyard of the one-year limitations period applicable to petitions for writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244 (d)(1). Specifically, the letter stated:

I want to be certain that you understand . . . that, under provisions adopted by Congress in 1996, you are required to file the petition within one year of the conclusion of the direct appeal. Thus, in your case, if you choose to file a habeas petition, you would have to do so before June 23, 2000, since the Court denied our leave application on June 24, 1999.
Id. at 3 (emphasis in original). This letter was written prior to the Second Circuit's decision in Williams v. Artuz, 237 F.3d 147 (2d Cir.), cert. denied, 534 U.S. 924 (2001), which held that a petitioner has an additional 90 days following the exhaustion of appeals (or following the completion of United States Supreme Court certiorari proceedings) to file a federal habeas petition. Id. at 151.

B. The Instant Petition

The petition for writ of habeas corpus was filed in the Northern District of New York on January 8, 2001. See Petition at 1.*fn1 The Northern District of New York sent Gillyard a receipt for the petition dated January 12, 2001, after which the petition was transferred to the Southern District of New York. In the petition, Gillyard presented the same arguments that he made before the Appellate Division. See generally Memorandum of Law in Support of Application for Writ of Hebeas [sic] Corpus, filed January 8, 2001 ("Habeas Mem.").

As it appeared the petition was time-barred under the AEDPA, Chief District Judge Michael B. Mukasey directed Gillyard to show cause why the statute of limitations should not bar the petition. See Order, dated April 24, 2001. Gillyard filed his affirmation on May 14, 2001, which stated in its entirety: "I don't relly no the law like that I have some one helpin me out on apply at this time, to say I'm a wear of the limitation." See Petitioner's Affirmation, dated May 9, 2001, at 1 (errors in original). By order dated May 22, 2002, Judge Mukasey ruled that Gillyard's affirmation failed to comply with the instructions in his April 24, 2001 order and granted Gillyard an additional thirty days in which to file an amended affirmation. See Order, dated May 22, 2002, at 1. Gillyard thereafter filed an amended affirmation providing more arguments regarding his failure to file timely.

On October 8, 2002, the respondent moved to dismiss the petition as time-barred. Gillyard filed a reply to this motion on November 15, 2002. See Petitioner's Opposition to Respondent's Motion to Dismiss, dated November 15, 2002 ("Pet. Opp.").


A. The AEDPA Limitation Period

The respondent asserts the instant petition is time-barred under the AEDPA, which imposes a one-year limitation period on federal habeas corpus applications by persons in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). While the AEDPA provides several possible dates from which the one-year period may begin to run, the only apparently applicable date is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. at § 2244(d)(1)(A).

As previously noted, "the AEDPA limitations period specified in section 2244(d)(1)(A) does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired." Williams, 237 F.3d at 151. Because Gillyard was denied leave to appeal to the Court of Appeals on June 24, 1999, and never sought further review, the conviction became final on September 22, 1999 — ninety days following the denial of leave to appeal. Gillyard therefore had one year from that date — or until September 22, 2000 — within which to file his petition. See 28 U.S.C. § 2244(d)(1)(A). As his petition was filed on January 8, 2001, it is untimely unless he can show the limitations period was sufficiently tolled.

28 U.S.C. § 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." See Artuz v. Bennett, 531 U.S. 4, 5 (2000). Gillyard does not allege, however, that he filed — or had pending — any application for State post-conviction or other collateral review during the one year period between September 22, 1999 and September 22, 2000. Rather, Gillyard acknowledges in his petition that he did not file "any petitions, applications, or motions with respect to [the] judgment" other than his direct appeal. See Petition ¶ 10. Accordingly, his petition is untimely.

B. Equitable Tolling

Because 28 U.S.C. § 2244(d) is a statute of limitations and not a jurisdictional bar, courts may extend the one-year deadline to prevent inequity. See, e.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). The Second Circuit has cautioned, however, that 5 such equitable tolling may be applied only where the petitioner shows that "extraordinary circumstances prevented him from filing his petition on time." Id. Further, he must "have acted with reasonable diligence throughout the period he seeks to toll." Id. Equitable tolling may only be applied in "rare and exceptional circumstances." Id. (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001), cert. denied, 122 S.Ct. 1606 (2002).

Gillyard's papers may be construed as arguing that his petition is untimely because he i) was proceeding pro se; ii) was denied access to various documents necessary to his petition; iii) believed that further appeal would be futile; and iv) was the victim of "vindictive prosecution." See Amended Aff. at 1-4. Each is discussed in turn.

1. Pro Se Status. To the extent Gillyard argues he is entitled to equitable tolling because he filed pro se, see Amended Aff. at 1; see also Affidavit in Support of Response to Dismissal, dated November 13, 2002 ("Reply Aff.") (annexed to Pet. Opp.), ¶ 1, this argument is rejected. A petitioner's pro se status does not by itself merit equitable tolling. See, e.g., Smith, 208 F.3d at 18; Francis v. Miller, 198 F. Supp.2d 232, 235 (E.D.N.Y. 2002) (citing cases); Ortiz v. Greiner, 2002 WL 265144, at *3 (S.D.N.Y. Feb. 25, 2002); Roman v. Artuz, 2000 WL 1201392, at *2 (S.D.N.Y. Aug. 22, 2000) (citing cases); accord Turner, 177 F.3d at 392 ("neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling"). Indeed, pro se petitioners more disadvantaged than Gillyard — such as those who do not speak English — have been unable to take advantage of the equitable tolling doctrine. See, e.g., Tan v. Bennett, 2001 WL 823869, at *2 (S.D.N.Y. July 20, 2001) (lack of English proficiency does not justify equitable tolling) (citing cases); Zarvela v. Artuz, 1999 WL 1487595, at *2 (E.D.N.Y. Dec. 3, 1999) (lack of access to a law clerk, illiteracy, lack of English fluency and ignorance of the law are insufficient to demonstrate that circumstances effectively prohibited petitioner from filing in a timely manner), rev'd on other grounds, 254 F.3d 374 (2d Cir.), cert. denied, 534 U.S. 1015 (2001). This principle is all the more applicable in Gillyard's case inasmuch as his attorney specifically informed him of the one-year deadline for filing his habeas petition.

2. Denied Access to Materials. Gillyard suggests that his failure to file prior to September 22, 2000 should be excused because he was denied "briefs," "documents," and "trial transcripts" that would have enabled him to file timely. Amended Aff. at 1. This argument, too, must be rejected.

As noted, the equitable tolling doctrine requires a petitioner to show that extraordinary circumstances prevented him from filing his petition in a timely fashion and that the late filing was not a result of his own lack of diligence. See, e.g., Smith, 208 F.3d at 17. Gillyard has submitted copies of three letters regarding his attempts to obtain materials related to his case. See Letter to Elaine Friedman of the Legal Aid Society from Wayne Gillyard, dated June 11, 2002 (annexed to Amended Aff.); Letter to "all courts and prosecutor and to United States District Court Southern District of New York" from Wayne Gillyard, dated June 10, 2002 (annexed to Amended Aff.); Letter to the Clerk of the Court for the Southern District of New York from Wayne Gillyard, dated November 6, 2000 (annexed to Amended Aff., Ex. "Evidence 4#"). Each of these letters, however, was sent after the AEDPA limitation period had already expired. A fourth letter, dated June 13, 1999, Amended Aff., Ex. "Evidence 12#," was sent to his attorney prior to the limitations period requesting copies of the opposition brief on appeal. But Gillyard provides the response of his attorney, who — in a letter dated July 1, 1999 — indicated that she was enclosing that brief. Amended Aff., Ex. "Evidence 11#." The record is thus devoid of any suggestion that Gillyard "acted with reasonable diligence throughout the period he seeks to toll." See Smith, 208 F.3d at 17; see also Padilla v. United States, 2002 WL 31571733, at *4 (S.D.N.Y. Nov. 19, 2002) (lack of access to court papers and a delay in obtaining them "are not extraordinary circumstances warranting equitable tolling").

Further, Gillyard has not shown that his inability to secure these materials prevented him from filing the petition. See Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001), cert. denied, 122 S.Ct. 2593 (2002); see also Raynor v. Dufrain, 28 F. Supp.2d 896, 900 (S.D.N.Y. 1998). For example, Gillyard does not claim that it was only the late receipt of some pertinent document that enabled him to file the instant petition. Indeed, his petition merely repeats the same arguments — and, in fact, references the same brief — he presented on his direct appeal. Compare Habeas Mem. with Def. Brief. Gillyard's submissions reflect that he had a copy of his own brief at the same time the limitations period began. See Amended Aff., Ex. "Evidence 12#." Accordingly, it cannot be said that Gillyard was denied access to materials necessary to file his federal petition. See Brown v. Keane, 1998 WL 148334, at *3 (S.D.N.Y. Mar. 30, 1998) (equitable tolling inappropriate where the arguments raised in the federal petition were "identical to those presented to the state courts," thereby demonstrating "petitioner was aware of the factual predicate for the claims and was in possession of the [necessary] materials").

3. Futility. In his amended affirmation, Gillyard appears to argue that equitable tolling is appropriate because he came to the conclusion "not just he lost the case but had no hopes to a fairness to an appeals at all if delays of his (own) counsel and prosecutor and records of trial, where all hindered, compounding insualt to the injuries of appeals efforts, and highly confusing" and that six years of appeals "put [him] to sleep waiting for delays." Amended Aff. at 2 (errors in original); see Reply Aff. at 4-7. Gillyard's frustration with the appeals process and his personal view that further review was futile, however, are insufficient to meet his burden that he act with "reasonable diligence." Smith, 208 F.3d at 17. Nor does a delay in adjudication of an appeal constitute an "extraordinary circumstance[]," id., that prevented him from filing the petition — particularly since Gillyard's attorney had informed him of the disposition of his appeal and of the deadline for filing a federal habeas petition.

4. Vindictive Prosecution. Gillyard fails to offer anything in support of his passing references to this claim. See Amended Aff. at 3-4. Accordingly, he fails to explain why it prevented him from filing his petition; nor does he demonstrate that he acted with reasonable diligence. See Smith, 208 F.3d at 17-18.


For the foregoing reasons, Gillyard's petition should be dismissed as time-barred pursuant to 28 U.S.C. § 2244(d)(1).

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Denny Chin, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any 9 request for an extension of time to file objections must be directed to Judge Chin. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).

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