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May 6, 2003


The opinion of the court was delivered by: Denise Cote, United States District Judge


On October 29, 2002, petitioner James Rizzo ("Rizzo") filed the instant petition for a writ of habeas corpus. This is approximately five years and six months after his petition became time barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").*fn1 On January 17, 2003, Rizzo was ordered to show cause why his petition should not be dismissed as time barred. The Order described in some detail the ADEPA statute of limitations and law concerning equitable tolling. Rizzo submitted an affidavit dated February 11 describing the reasons for his delay in filing his petition. For the reasons that follow, Rizzo has not shown that equitable tolling is warranted and his petition is dismissed as untimely.


On May 3, 1995, Rizzo pleaded guilty to one count of Burglary in the First Degree and one count of Attempted Rape in the First Degree in full satisfaction of the indictment against him. Pursuant to a plea agreement, Rizzo was sentenced on May 17, 1995, to concurrent terms of 9 to 18 years' imprisonment on the burglary count, and 5 to 15 years' imprisonment on the attempted rape.

On April 19, 2001, Rizzo brought a N.Y. C.P.L. § 440.10 motion to vacate his conviction. Rizzo asserted several grounds for his motion. First, he argued that the trial court had lacked jurisdiction over him because he had not been arraigned on each charge listed in the felony complaint and the indictment. He also contended that his plea was not voluntarily and knowingly made since he was under duress when he pleaded. This duress was created by statements made to him by the state court about his potential sentence if he were convicted. Finally, the defendant argued that he did not receive effective assistance of counsel. The state court denied Rizzo's motion on June 26, 2001, on the merits and on the ground that he had not asserted these arguments in an appeal. Rizzo was denied leave to appeal this decision on October 30, 2001. Approximately a year later, on October 29, 2002, Rizzo filed the instant petition.

In his affidavit, Rizzo describes steps he has taken, beginning in September 1999, to pursue review of his conviction. He explains that in September of 1999 he had a conversation with his cell mate which led him to believe that there may have been problems with his conviction. Following this conversation, he contacted his sister to request that she find a lawyer to assist him. While waiting for a lawyer to review his case, he sent letters to various city and state agencies, including the New York Commission of Investigation, the New York State Inspector General's Office and the New York County District Attorney's Office and requested that they investigate whether prosecutors had engaged in any improprieties regarding his case. He believes that no investigation was ever undertaken by any agency.

Dissatisfied with the advice he received from the lawyer hired by his sister and frustrated by the lack of an investigation by public agencies, Rizzo decided to attempt to do his own legal research. He states, however, that he was impeded from doing his own research by the restrictive housing arrangements and inadequate resources of the libraries in the correctional facilities in which he has been incarcerated. More specifically, Rizzo points to the difficulties he experienced at Upstate Correctional Facility and Auburn Correctional Facility. He notes that in both facilities he did not have direct access to the law libraries and was required to submit requests to clerks who would retrieve material from the library. He contends that the clerks were incompetent, that there were not enough library materials for the prisoners to share, and that the paucity of materials generated considerable delay in conducting research.

Finally, Rizzo explains that during the fall of 2001 his mail was routinely intercepted and destroyed by correction officers. He claims that he filed a complaint with the superintendent of the facility, but no corrective or disciplinary action was taken. On October 29, 2002, he filed this petition pro se, asserting essentially the same arguments he asserted in his C.P.L. § 440 motion.


Under AEDPA, a prisoner in state custody has one year after the date his conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244 (d)(1). A prisoner whose conviction became final prior to AEDPA's effective date of April 24, 1996, has a one-year grace period after that date to file a petition. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Rizzo was sentenced and judgment was entered against him on May 17, 1995. His conviction became final ninety days later, on August 15, 1995. Rizzo therefore had until April 24, 1997, to file a federal habeas petition. His instant petition was filed on October 29, 2002, approximately five years and six months after his limitations period had expired.

Since AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar", courts may equitably toll the period. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) Equitable tolling of the one-year limitations period for Section 2254 petitions is available "when extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (citation omitted) The factors that can give rise to equitable tolling are the same factors that establish "cause" for failure to raise a claim on direct appeal. Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000) (citing factors such as official interference or the unavailability of a factual or legal basis for a claim). In order to show that extraordinary circumstances prevented him from filing his petition on time, a petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). In addition, the party seeking equitable tolling "must have acted with reasonable diligence throughout the period he seeks to toll." Warren, 219 F.3d at 113 (citation omitted).

Rizzo's petition is untimely. In his affidavit, Rizzo essentially makes only one argument for equitable tolling and that is that he was impeded in his attempts to conduct his own legal research due to restrictive housing, inadequate library support services and mail delivery problems. While deprivation of access to legal materials may constitute grounds for equitable tolling, see Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001), Rizzo did not begin his legal research until September 1999 — over two years after the limitation period had expired. He offers no argument or explanation for why time should be tolled for this two year period. Because the circumstances upon which Rizzo seeks to rely to support his request for equitable tolling did not occur until two years after the statute of limitations had passed, it is unnecessary to address whether the circumstances he describes would otherwise be sufficient to toll the limitations period.


For the foregoing reasons, Rizzo's petition is dismissed. The Clerk of Court shall close the case. I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Miller-El v. Cockrell, ___ U.S. ___, 123 S.Ct. 1029, 1034 (2003). Should the petitioner seek leave to appeal in forma pauperis, I find, pursuant to 28 U.S.C. ยง 1915 ...

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