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BOLUS v. PORTUONDO

United States District Court, Northern District of New York


March 26, 2003

ROY J. BOLUS, PETITIONER,
v.
L. A. PORTUONDO, SUPERINTENDENT, RESPONDENT.

The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge.

REPORT-RECOMMENDATION

Petitioner, pro se Roy J. Bolus, a New York State prison inmate as a result of 1988 Albany County Court convictions for numerous crimes, filed a writ of habeas corpus asserting four separate grounds in support of his claim that his conviction should be set aside (Dkt. No. 1).*fn1 In responding to the petition, the Office of the Attorney General for the State of New York ("Attorney General"), acting on respondent's behalf, filed a motion for summary judgment,*fn2 together with supporting papers, in which he claims that the petition is untimely in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (Dkt. Nos. 15-18).*fn3 Bolus has filed both a response and a supplemental response in opposition to that motion (Dkt. Nos. 19-20). Since equitable tolling is warranted in this action, the court recommends that the motion for summary judgment be denied.

I. Background

On November 16, 1988, Bolus was found guilty by a jury for second degree murder, second degree attempted murder, first degree robbery, first degree burglary, and second degree criminal possession of a weapon. People v. Bolus, 185 A.D.2d 1007 (3d Dept. 1992), leave denied, 81 N.Y.2d 785 (1993). County Court Judge Joseph Harris sentenced Bolus to an aggregate prison term of eighty years to life imprisonment, Bolus, 185 A.D.2d at 1007. Although the New York State Supreme Court, Appellate Division, Third Department, reduced the term of incarceration to seventy-five years to life, that court affirmed the convictions in all respects. Id., 185 A.D.2d at 1009. On March 14, 1996, Bolus filed a motion to set aside the sentence pursuant to New York's Criminal Procedure Law ("CPL") § 440.20 (Dkt. No. 19 at ¶ 4). That motion was denied by Albany County Court Judge Larry J. Rosen by Decision and Order dated March 19, 1997 (Dkt. No. 19, Ex. A-2), and no appeal of that order was taken by Bolus (Dkt. No. 8 at P. 3).

On April 20, 1997, Bolus filed a motion pursuant to CPL § 440.10 to vacate his judgment of conviction (Dkt. No. 17 at ¶ 4). However, Judge Rosen denied that motion by Decision and Order dated September 25, 1997. Id. at ¶ 5; see also, Dkt. No. 19 at Ex. B. The Appellate Division denied Bolus' application for leave to appeal Judge Rosen's decision in its order dated December 27, 1997 (Dkt. No. 17 at ¶ 6).

Bolus commenced a federal habeas corpus proceeding in this District pursuant to 28 U.S.C. § 2254 on January 20, 1998. See Bolus v. Kuhlman, 98-CV-0094 (NAM)(GJD) ("Bolus I"). On May 27, 1999, after the Attorney General filed his response in opposition to that petition, Id. at Dkt. Nos. 8-9, Bolus requested that his petition be held in abeyance until he had exhausted a claim alleging ineffective assistance of appellate counsel. Bolus I at Dkt. No. 15 ("May 1999 application"). On August 13, 1999, Bolus wrote to the court and requested that he be informed of the status of Bolus I so that he could determine whether his request to have that action held in abeyance was premature (Dkt. No. 16). The court considered Bolus' August 1999 request as one indicating that the May 1999 application had been prematurely filed, and therefore denied that application. Id.

On September 29, 1999, Bolus sought permission to voluntarily withdraw Bolus I, without prejudice, or in the alternative, to have that action placed on the court's "suspense calender, with leave to re-submit" once he had exhausted his ineffective assistance of appellate counsel claim (Id. at Dkt. No. 17). U.S. District Judge Norman A. Mordue granted that motion in part and dismissed Bolus I, "without prejudice," by order dated August 14, 2000 (Id. at Dkt. No. 20, P. 2).

On August 30, 2000, Bolus filed the coram nobis application to which he had referred in his request to voluntarily dismiss Bolus I (Dkt. No. 19 at ¶ 10). That application was denied by the Appellate Division by order dated November 9, 2000 (Id. at Ex. D). On November 30, 2000, Bolus filed a second motion to vacate his sentence pursuant to CPL § 440.10 (Dkt. No. 17 at ¶ 8). That request was denied by Acting Supreme Court Justice Dan Lamont by Decision and Order dated April 25, 2001 (Dkt. No. 17 at Ex. I), and the Appellate Division denied Bolus' application for leave to appeal that decision in its order dated July 9, 2001 (Id. at Ex. J).

II. Procedural History

Petitioner commenced this proceeding on July 16, 2001.*fn4 See Pet. at P. 7. United States District Judge Thomas J. McAvoy then directed Bolus to provide additional information regarding the state court challenges he had filed regarding his conviction in order to assist the court in determining whether this action was timely commenced in light of the AEDPA's one year statute of limitations (Dkt. No. 6). Bolus filed the required information (Dkt. No. 8), and this court then directed the respondent to file a response to the petition pursuant to the rules governing § 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254 (Dkt. No. 10). The Attorney General then filed the above-referenced motion for summary judgment which Bolus has opposed. Respondent's motion has been referred to this court for the issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(c).

III. Discussion

The rules governing habeas petitions were significantly modified by enactment of the AEDPA. One such change was the institution of a one-year statute of limitations applicable to habeas corpus petitions. Specifically, in light of the AEDPA, 28 U.S.C. § 2244 now provides that:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(2) 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).

In this case, New York's Court of Appeals denied Bolus leave to appeal on January 5, 1993. Bolus, 81 N.Y.2d at 785. Therefore, that conviction became final on April 5, 1993.*fn5 Since his conviction became final prior the effective date of the AEDPA (April 24, 1996), Bolus was afforded the benefit of a one-year grace period in which to file his federal habeas corpus petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).

Bolus' first state court challenge to his conviction following his direct appeal was his CPL § 440.20 motion to set aside his sentence (Dkt. No. 8 at P. 2, Dkt. No. 19 at ¶ 4),*fn6 which tolled the AEDPA's statute of limitations. See Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000). Judge Rosen denied that application on March 17, 1997 (Dkt. No. 8 at P. 2). Since Bolus was afforded thirty days within which to appeal that order, see N.Y. Crim. Proc. L. §§ 450.15, 460.10(4)(a), the statute of limitations relating to the petition filed in this action did not begin to run until April 16, 1997, when Bolus' right to appeal expired.*fn7 E.g. Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999) ("a state-court petition [for post-conviction or other collateral review] 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"); Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) ("[o]nce a court determines that the initial application was "properly filed," the "properly filed" inquiry comes to an end; the only remaining question is when further appellate review of the initial application becomes unavailable"), cert. denied, ___ U.S. ___, 122 S.Ct. 2593 (2002); see Cuevas v. New York, 01 CIV 2550, 2002 WL 206985, at *3 (S.D.N.Y. Feb. 11, 2002).

The statute of limitations therefore ran for only four days because Bolus filed his first CPL § 440.10 motion on April 20, 1997 (Dkt. No. 17 at ¶ 4). The tolling period continued from that date until December 27, 1997, when Bolus' application for leave to appeal the denial of that CPL § 440.10 motion was denied by the Appellate Division (Dkt. No. 17 at ¶ 6). Twenty-four days later, on January 20, 1998, Bolus timely commenced his first federal habeas corpus challenge to his state court conviction.*fn8 See Bolus I at Dkt. No. 1. That filing, however, did not toll the AEDPA's statute of limitations, because "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)." Duncan v. Walker, 533 U.S. 167, 181-82 (2001); Rodriguez v. Bennett, 303 F.3d 435, 438 (2d Cir. 2002).

The statute of limitations therefore ran from December 27, 1997, until August 30, 2000, the date on which Bolus filed his coram nobis application,*fn9 or a period of 977 days. The Appellate Division denied the coram nobis application on November 9, 2000 (Dkt. No. 19 at ¶ 11), and the statute therefore began to run anew until November 30, 2000, when Bolus filed his second CPL § 440.10 motion (Dkt. No. 16 at ¶ 10). That application was denied on April 25, 2001 (Id. at ¶ 11), and leave to appeal was denied by the Appellate Division on July 9, 2001 (Dkt. No. 17 at ¶ 10), thereby ending the tolling period. The statute of limitations then ran for seven more days, until July 16, 2001, the date on which Bolus signed the petition he filed in this case. Pet. at P. 7.

Based upon the foregoing, when the time during which the statute of limitations was tolled pursuant to the AEDPA is excluded, a total of 988 days passed between the date on which the AEDPA was enacted and the filing of this proceeding. Bolus has therefore exceeded the statute of limitations by 623 days, and therefore, absent a basis for equitable tolling, his petition was untimely filed and must be dismissed on this basis. E.g. Smith v. McGinnis, 208 F.3d 13, 17-18 (2d Cir.), cert. denied, 531 U.S. 840 (2000); Alamo v. Ricks, 01-CV-1381, 2002 WL 1732815, at *2 (E.D.N.Y. July 24, 2002); Bryant v. Eisenschmidt, 10 F. Supp.2d 211, 212-13 (N.D.N.Y. 1998) (McAvoy, C.J.) (petition for writ of habeas corpus filed 407 days after effective date of the AEDPA dismissed as untimely); Nusbaum v. Shriver, 97-CV-1029, 1998 WL 59478 (N.D.N.Y. Feb. 10, 1998) (Pooler, D.J.) (dismissing petition filed twenty-two days after expiration of AEDPA's statute of limitations); Palmeri v. Greiner, 175 F. Supp.2d 461, 465 (E.D.N.Y. 2001).

"Equitable tolling is a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996). "In the context of a late-filed habeas petition, equitable tolling may sometimes offer an avenue for avoiding Suspension Clause issues in the rare case where strict application of the one year limitations period would create an unreasonable burden." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.) (internal quotation and citation omitted), cert. denied, 531 U.S. 968 (2000). In this regard, the Second Circuit has specifically held that although the time during which a federal petition is pending does not automatically toll the statute of limitations, courts must nevertheless consider whether a petitioner is entitled to equitable tolling during the pendency of a federal petition. Rodriguez, 303 F.3d at 438.

The chronology outlined above reveals that Bolus has been diligent in pursuing collateral challenges to his conviction. In fact, excluding the time during which Bolus' federal habeas petition was pending, it appears as though only thirty-five days of the AEDPA's one year statute of limitations had not been tolled before Bolus filed this action. Moreover, as noted above, Bolus had requested that the district court hold Bolus I, which was timely filed, in abeyance until he had exhausted a claim alleging ineffective assistance of appellate counsel in the state courts, however, that request was denied. Bolus I at Dkt. Nos. 15-16. Bolus then requested that the district court dismiss that action, without prejudice, or in the alternative, place that action "on the hold suspense calender." Bolus I at Dkt. No. 17. That request was granted in part by Judge Mordue who dismissed Bolus I "without prejudice" (Dkt. No. 20). Under these circumstances, it appears that he is entitled to equitable tolling of the statute of limitations throughout the period that Bolus I was pending. See De Jesus v. Miller, 215 F. Supp.2d 410, 413 (S.D.N.Y. 2002) (tolling statute during six month period of time initial federal habeas petition was pending); Butti v. Giambruno, 02 Civ.3900, 2002 WL 31885973, at *3 (S.D.N.Y. Dec. 26, 2002) (equitable tolling warranted where only 181 days of the AEDPA's limitations period had passed excluding time during which initial federal habeas petition was pending); Dewindt v. Artuz, 97-CV-2138, 2002 WL 1034853, at *5 (E.D.N.Y. May 23, 2002) (equitably tolling statute of limitations where first federal petition dismissed; "[t]he Court will not permit [petitioner] to be prejudiced because the Court dismissed his [initial] petition instead of holding it in abeyance" pursuant to Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001)).

Therefore, the court recommends that the statute of limitations be equitably tolled throughout the time Bolus' federal habeas petition was pending in Bolus I. Since the present action is clearly timely when that period of time is excluded when determining the last date on which this action could have been timely commenced, the court recommends that respondent's motion for summary judgment be denied.

Finally, if this recommendation is adopted by Judge McAvoy, the court directs the respondent to file a response to the petition, together with the relevant state court records, within forty-five days from the date of the district judge's order denying respondent's motion for summary judgment.

WHEREFORE, based upon the above, it is hereby

RECOMMENDED, that respondent's motion for summary judgment (Dkt. No. 15) be DENIED; and it is further

ORDERED, that the respondent file a formal response to the petition, and provide the court with the relevant state court records relating to Bolus' convictions, within forty-five days from the date of the district judge's order denying respondent's motion for summary judgment; and it is further

ORDERED, that the Clerk serve a copy of this Report-Recommendation on the parties by regular mail.

NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.


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