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United States District Court, Southern District of New York

March 25, 2003


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge


I. Introduction

Pro se petitioner Rudy Roa brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his 1995 conviction on murder, attempted murder, and robbery charges. The respondent has filed a pre-answer motion to dismiss the petition on the ground that it is untimely. For the reasons that follow, I recommend that the respondent's motion be granted, and that this proceeding be dismissed.

II. Background

Roa's conviction arose out of an incident during which Roa and another person entered an apartment in Upper Manhattan, sought to obtain money and drugs, and shot and killed the occupant of the apartment, Juan Munoz. (Pet'r's Br. on App. at 8-9; Resp't's Mem. at 2). Munoz's girlfriend Evelyn Rivera also was shot, but she survived. (Id.).

On January 12, 1995, after a trial in Supreme Court, New York County, before Justice Frederic Berman and a jury, Roa was convicted on two counts of Murder in the Second Degree, one count of Attempted Murder in the Second Degree, and two counts of Robbery in the First Degree. (See Affirm. of Morrie Kleinbart, Esq., dated Nov. 8, 2002 ("Kleinbart Affirm."), ¶ 2). On March 22, 1995, Roa was sentenced to concurrent prison terms of twenty-five years to life on the murder counts; a consecutive prison term of eight and one-third to twenty-five years on the attempted murder count; and concurrent prison terms of eight and one-third to twenty-five years on the robbery counts, to be served concurrently with the sentences on the murder counts. (Id.)

On or about February 11, 1997, Roa moved pursuant to Section 440. 10 of the New York Criminal Procedure Law for an order vacating the judgment of conviction. (See Pet. ¶ 12(a)(5)). On March 14, 1997, this motion was denied. (Id. ¶ 12(a)(6)). Thereafter, on September 16, 1997, the Appellate Division denied Roa leave to appeal from the order denying his motion. People v. Roa, 1997 N.Y. App. Div. LEXIS 9987 (1st Dep't Sept. 16, 1997).

Roa's direct appeal from the judgment of conviction raised two claims: first, that the trial court deprived him of due process by failing to instruct the jury properly with regard to the evaluation of eyewitness testimony; second, that his sentence was excessive. (See Pet. Attach. (Br. on App. at 1-2)). On March 14, 2000, the Appellate Division unanimously affirmed the judgment of conviction, holding that the jury charge claim was unpreserved and meritless, and that the sentence imposed was not an abuse of discretion. People v. Roa, 270 A.D.2d 103, 704 N.Y.S.2d 470 (1st Dep't 2000). On July 28, 2000, the Court of Appeals denied Roa leave to appeal from the Appellate Division order affirming his conviction. People v. Roa, 95 N.Y.2d 857, 714 N.Y.S.2d 8 (2000). Roa did not seek a writ of certiorari. (Pet. ¶ 10(g)).

Roa's habeas petition is dated July 1, 2002 and file stamped as having been received by this Court's Pro Se Office on July 11, 2002. (Docket No. 1). In his petition, Roa alleges that error of constitutional dimensions occurred at his trial through the denial of his right to counsel of his own selection, the use of a coerced confession, the denial of his right to secure the testimony of witnesses through compulsory process, the denial of his right to testify on his own behalf, excessive pre-indictment delay, and the ineffective assistance of counsel. (Petition ¶ 13).

On November 8, 2002, the respondent filed a motion to dismiss Roa's petition as untimely. (Docket No. 6).*fn1

III. Discussion

A. Limitations Period

Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), an inmate generally must file a federal habeas corpus petition within one year after the date that his conviction becomes final or the facts giving rise to his claim could have been discovered.

28 U.S.C. § 2244(d)(1).*fn2 The one-year limitations period is subject, however, to the following tolling provision:

The 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.
28 U.S.C. § 2244(d)(2).

Because Roa did not seek a writ of certiorari from the United States Supreme Court, his conviction became final on October 26, 2000, ninety days after the Court of Appeals denied his request for leave to appeal. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Under Section 2241(d)(1), Roa then had one year in which to file his petition. His habeas petition, dated July 1, 2002, consequently is time barred because it was filed more than eight months after the statutory deadline.

B. Equitable Tolling

Equitable tolling permits a court to "extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996); accord Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (collecting cases). For equitable tolling to be applicable, a petitioner must show that "rare" or "extraordinary" circumstances made it "impossible to file [the] petition on time." Armand v. Strack, 1999 WL 167720, at *3 (E.D.N.Y. Feb. 19, 1999) (citing Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998)). In addition, the petitioner "must have acted with reasonable diligence throughout the period he seeks to toll." Smith, 208 F.3d at 17 (citations omitted). Thus, the petitioner must show not only that "extraordinary circumstances existed, but that these circumstances actually prevented the petitioner from filing on time." Anderson v. O'Gara, 2002 WL 1633917, at *4 (S.D.N.Y. July 23, 2002) (citing Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000)). As the Supreme Court has cautioned, equitable tolling should be invoked sparingly and not in cases involving "garden variety claims of excusable neglect." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990).

Roa states that he w rote to the Appellate Division on March 4, 2002 to inquire about the status of motions that he had filed in May and August 1999 to have his existing appellate counsel relieved and new counsel assigned. (Pet. ¶ 14). He alleges that he received a response to these inquiries, dated March 8, 2002, in which the Deputy Clerk of the Appellate Division advised him that both applications had previously been denied. (Id.). This, in turn, prompted Roa to inquire about the status of his appeal for the first time in a March 12, 2002 letter to the Appellate Division. (Id.). On April 8, 2002, the Clerk's Office advised him that his appeal had been denied more than two years earlier. (Id.). Roa then sought leave to appeal to the Court of Appeals, only to learn on May 16, 2002 that this avenue had previously been unsuccessfully pursued on his behalf. (Id.).

Roa contends that his petition should be deemed timely filed "because neither the courts nor district attorney's office [n]or appellate counsel ever informed me of the conclusion of my direct appeal." (Id.). The question raised by an equitable tolling claim, however, is not whether persons other than the petitioner acted diligently. Rather, the petitioner must establish that he acted with reasonable diligence. Smith, 208 F.3d at 17. Here, Roa did not inquire about his two pro se motions until March 2002, nearly three years after they were filed. Only after receiving a response to this inquiry did he inquire about the status of his direct appeal. Roa does not suggest that there was any impediment to his having inquired earlier. Moreover, when he eventually sent a letter inquiring about his appeal, Roa received a response from the Appellate Division in less than one month.

In these circumstances, Roa plainly has not shown, as he must, that "extraordinary circumstances" prevented the timely filing of his petition despite his "reasonable diligence." See, e.g., Anderson, 2002 WL 1633917, at *4 (lack of notice of denial of coram nobis petition is not "extraordinary" because, "[i]n the absence of some specific legal requirement or promise, there is nothing unusual about a court issuing a decision and a litigant not receiving a copy of it in the mail"); Plowden v. Romine, 78 F. Supp.2d 115, 120 (E.D.N.Y. 1999) ("There is no limiting principle to [petitioner's] argument that simple ignorance — absent any showing of diligence on his part or allegations of impediments to his staying informed about this case — should provide a basis for equitable tolling; to hold that the statute of limitations should be extended in this case would allow the statute to be extended indefinitely."); Raynor v. Dufrain, 28 F. Supp.2d 896, 900 (S.D.N. Y. 1998) ("Equitable tolling is warranted when some event effectively prohibits the petitioner from pursuing habeas, such as the misplacement of files, or being denied access to materials necessary to file a habeas petition."); Mandarino v. United States, 1998 WL 729703, at *2 (S.D.N.Y. Oct. 16, 1998) (counsel's failure to inform petitioner of denial of certiorari is not a ground to toll statute). There consequently is no basis for equitable tolling.

IV. Conclusion

For the foregoing reasons, Roa's motion to dismiss the petition as untimely should be granted.

VII. Notice of Procedure for Filing Of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the clerk of the Court, and send copies to the chambers of the Honorable Michael B. Mukasey, United States District Judge, United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Mukasey. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).

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