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JOHNSON v. BENNETT

United States District Court, Northern District of New York


March 28, 2003

KEENAN JOHNSON, PETITIONER,
v.
FLOYD BENNETT, SUPERINTENDENT, RESPONDENT

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

ORDER and REPORT-RECOMMENDATION

Petitioner Keenan Johnson, a New York State prison inmate as a result of 1998 Onondaga County Court convictions for second degree murder and fourth degree criminal possession of a weapon, filed a writ of habeas corpus asserting three separate grounds in support of his claim that his conviction should be set aside (Dkt. No. 1). In response 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 to dismiss the petition,*fn1 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. 7-9.*fn2

Since this action was timely filed in accordance with the AEDPA, it is recommended that the motion to dismiss be denied.

I. Background

On March 6, 1998, Johnson was found guilty by a jury for second degree murder and fourth degree criminal possession of a weapon. Pet. (Dkt. No. 1) at ¶ 2. Johnson was sentenced to a term of twenty-five years to life imprisonment on the murder conviction, with a lesser, concurrent sentence on the weapon's possession conviction. Id. at ¶ 3. Johnson appealed his conviction and sentences. However, the New York State Supreme Court, Appellate Division, Fourth Department, affirmed in all respects. People v. Johnson, 265 A.D.2d 930 (4th Dept. 1999). The Court of Appeals denied Johnson's application for leave to appeal on March 8, 2000. People v. Johnson, 94 N.Y.2d 921 (2000); Dkt. No. 12 at ¶ 7. On April 24, 2001, Johnson filed an application with the Court of Appeals seeking reconsideration and reargument of that court's March 2000 order denying leave to appeal. Dkt. No. 12 at ¶ 8 and Ex. A ("April 2001 Motion for Reconsideration"). By letter dated May 3, 2001, the clerk of that court advised Johnson that his request for reconsideration would not be granted. Dkt. No. 12 at ¶ 9 and Ex. B.

II. Procedural History

This action was filed on June 8, 2001. Pet. at P. 7. Respondent was then directed by this court 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 filed a motion to dismiss on September 25, 2001 (Dkt. Nos 7-9), and Johnson filed a response in opposition on October 12, 2001 (Dkt. No. 12). The respondent then filed a reply in further support of his motion to dismiss (Dkt. No. 15) to which Johnson filed a surreply (Dkt. No. 16). 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).

A judgment of conviction becomes final under the AEDPA at the conclusion of the ninety day period during which the defendant could have sought certiorari review in the United States Supreme Court. Williams v. Artuz, 237 F.3d 147, 150-151 (2d Cir. 2001); see also, Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of Rules of the Supreme Court of the United States); Allen v. Hardy, 478 U.S. 255, 258 (1986) (decision becomes final "where the availability of appeal [is] exhausted, and the time for petition for certiorari ha[s] elapsed").

In his motion to dismiss, respondent argues that since Johnson's conviction became final for purposes of the AEDPA on June 6, 2000 (ninety days after March 8, 2000, the date on which New York's Court of Appeals denied Johnson's application for leave to appeal), this action was not timely commenced by Johnson's counsel on June 8, 2001 (Dkt. No. 8 at P. 6). In response, Johnson claims that his April 2001 Motion for Reconsideration was pending from April 24, 2001, until May 3, 2001, and since the statute of limitations was tolled during that period of time, this action was timely commenced (Dkt. No. 16 at P. 2).

Section 500.11 of the Rules of Practice of New York's Court of Appeals provides, in part, that "unless otherwise permitted by the court," motions for reargument to that court "shall be served not later than 30 days after the appeal or motion has been decided. . . ." N.Y. Ct. Rules § 500.11(g)(3). Therefore, this court must consider whether an application filed after the thirty day time period is nevertheless "properly filed" under the AEDPA.

An application is "properly filed" for tolling purposes under the AEDPA "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Hizbullahankhamon v. Walker, 255 F.3d 65, 72 N.5 (2d Cir. 2001) (citing Artuz v. Bennett, 531 U.S. 4, 8 (2000)), cert. denied ___ U.S. ___, 122 S.Ct. 2593 (2002). In support of his claim that the April 2001 Motion for Reconsideration was not "properly filed" under the AEDPA, respondent argues that Johnson's motion was "rejected" by the Court of Appeals because it was "untimely submitted" (Dkt. No. 15 at P. 2). He maintains that because that application "was neither delivered within the rules governing filing, nor . . . given the requisite `judicial authorization' to overcome its untimeliness," the statute of limitations was not tolled and this action must be therefore dismissed. Id.

The April 2001 Motion for Reconsideration does not appear to have been rejected by New York's Court of Appeals. The May 3, 2001, letter from the clerk of that court which refers to that application notes that motions for reconsideration are to be served no later than 30 days after the initial application for leave is denied, and that the time limit "may be waived only in exceptional circumstances" (Dkt. No. 12 at Ex. B). However, that letter informed Johnson that his request had been referred to Associate Judge Albert M. Rosenblatt, who determined that, "more than one year having elapsed, reconsideration will not be granted." Id. Respondent's argument that because Johnson's April 2001 Motion for Reconsideration was untimely, that application was a "[c]reative, unrecognized motion" which did not toll the statute of limitations (see Dkt. No. 15 at P. 2) appears to overlook the fact that district courts within this Circuit have dismissed habeas petitions filed by petitioners for failure to fully exhaust their state remedies because, inter alia, they failed to (belatedly) seek reconsideration from New York's Court of Appeals to reconsider its decision denying leave to appeal. See Baker v. Scully, 83-CIV-6299, 1986 WL 2765, at *3 (S.D.N.Y. Feb. 27, 1986) (to satisfy exhaustion doctrine applicable to actions brought under 28 U.S.C. § 2254, petitioner could have availed himself of option of filing motion to reconsider with Court of Appeals more than six years after that court initially denied leave to appeal); Ruzas v. Sullivan, 607 F. Supp. 60, 62 (S.D.N.Y. 1985) (motion for reconsideration filed approximately six years after leave to appeal denied by Court of Appeals was a "state court device" that was "likely available" to petitioner; "The New York Court of Appeals has apparently exercised [its] discretion to reach the merits of a claim of ineffective assistance of appellate counsel raised nearly two years after the court originally denied leave to appeal") (citation omitted).

Turning to the April 2001 Motion for Reconsideration, there is no evidence that the clerk of the Court of Appeals rejected Johnson's application because it did not conform with the requirements of the Court of Appeals, despite the fact that he could have rejected Johnson's motion on that basis. See N.Y. Ct. Rules § 500.11(h).*fn3 Moreover, the letter which refers to Johnson's April 2001 Motion for Reconsideration states that, as of May 3, 2001, "the statutory avenues for application for permission to appeal to [that] Court . . . have now been exhausted" (Dkt. No. 12 at Ex. B) (emphasis added). Since the Court of Appeals clearly had the discretion to grant the April 2001 Motion for Reconsideration, that application, although filed more than thirty days after the date on which the Court of Appeals denied Johnson's original application for leave to appeal, was a properly filed state court application for state post-conviction review which tolled the AEDPA's statute of limitations.

Thus, Johnson's conviction became final for purposes of the AEDPA on June 6, 2000. The statute of limitations ran until April 24, 2001, when Johnson filed his April 2001 Motion for Reconsideration. By that time, 322 days of the governing statute of limitations had run. However, that filing tolled the statute of limitations until May 3, 2001, when Johnson was notified that Judge Rosenblatt would not grant that application. The statute began to run anew on that date, and by June 8, 2001, 36 more days of the statute of limitations had elapsed. Thus, when this action was commenced on that date, a total of 358 days of the AEDPA's statute of limitations had run, and this matter was therefore timely filed. Accordingly, the court recommends that respondent's motion to dismiss be denied.

Finally, in the event that this Recommendation is adopted by United States District Judge David N. Hurd, this 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 to dismiss.

WHEREFORE, based upon the above, it is hereby

RECOMMENDED, that respondent's motion to dismiss (Dkt. No. 7) 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 Johnson's convictions within forty-five days from the date of the district judge's order denying respondent's motion to dismiss; and it is further

ORDERED, that the Clerk serve a copy of this Order 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.

IT IS SO ORDERED.


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