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United States District Court, Northern District of New York

June 4, 2003


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


Petitioner, pro se, Willie Brown, a New York State prison inmate as a result of a 1992 Albany County Supreme Court conviction for rape in the first degree, sodomy in the first degree, and robbery in the second degree, has commenced this proceeding seeking federal habeas relief pursuant to 28 U.S.C. § 2254. Respondent opposes the petition, arguing both that it is untimely and that it should be rejected on the merits.

In light of the fact that the petition is barred by the governing one year statute of limitations applicable to habeas petitions in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), this court recommends that Brown's petition be denied and dismissed.

I. Background

Brown's conviction stems from an incident which occurred in the early morning hours on December 15, 1990, in an apartment located in Albany, New York. During the course of the previous evening, the victim,*fn1 a student at the State University of New York at Albany, patronized some local taverns in the Albany, New York, area and was accompanied by a male companion. See Transcript of Trial of Willie James Brown and June Christine Benson, Index No. DA 216-91 ("Trial Tr.") at PP. 546-47. At some point during that night, the victim left a bar and attempted to walk to her apartment which was located on Washington Avenue. Trial Tr. at P. 548. On her way home, the victim became disoriented and found herself lost in the Arbor Hill section of Albany, New York. Trial Tr. at PP. 548-49.

The victim was subsequently approached by an individual identified by the victim at trial as Willie James Brown. See Trial Tr. at P. 617. He advised the victim that she was in an unsafe part of the city and should not be walking alone. Trial Tr. at P. 549. Brown offered to take her to an apartment where he claimed his wife would call the woman's friends and ask them to pick her up. Trial Tr. at PP. 549-50. Benson then asked the victim for the telephone numbers of her friends, briefly left the apartment, and soon returned and told the victim that her friends were on the way.*fn2 Trial Tr. at PP. 551-52.

After a period of time, the victim became nervous and expressed her desire to leave. Trial Tr. at P. 553. However, Benson informed the victim that she wasn't "going anywhere." Trial Tr. at P. 553. After demanding that the victim give Benson all of her jewelry and money, Benson directed the victim to remove her clothing, threatening to kill her if she did not. Trial Tr. at PP. 553-56. She was then instructed to go into another room, where she was raped and anally sodomized by Brown. Trial Tr. at PP. 556-58. The victim then performed oral sex on Brown. Trial Tr. at P. 559.

At some point following the forced sexual acts, Brown told the victim she could leave, after which she grabbed her clothes and ran out of the apartment. Trial Tr. at PP. 560-61. She eventually hailed a taxicab and was driven to the Albany Medical Center Hospital where she was examined. Trial Tr. at PP. 560-62. That examination revealed an abrasion and contusion on her forehead as well as abrasions on her forearms and wrists. Trial Tr. at P. 416.

II. Procedural History

A. State Court Proceedings

Brown and a co-defendant were both indicted by an Albany County grand jury on May 7, 1991, and charged with rape in the first degree, sodomy in the first degree, and robbery in the second degree. See Appendix in Support of Appeal at PP. A1-4. The two were tried jointly before separate juries in Albany County Supreme Court, beginning on July 6, 1992, with County Court Judge Thomas W. Keegan, presiding.

At the conclusion of the trial, Brown was found guilty on all counts. Trial Tr. at PP. 1235-37. Judge Keegan sentenced Brown as a predicate violent felony offender to terms of imprisonment of twelve and one-half to twenty-five years on the rape conviction, twelve and one-half to twenty-five years on the oral sodomy conviction (to run consecutively with the sentence for the rape conviction), twelve and one-half to twenty-five years on the anal sodomy conviction (to run concurrent to the sentence imposed for the rape and oral sodomy convictions), and seven and one-half to fifteen years on the robbery conviction (consecutive to the other sentences imposed). As a result, Brown was sentenced to an aggregate of between thirty-two and one-half to sixty-five years imprisonment. See Sentencing Tr. (3/29/93) at PP. 16-17.

Brown appealed his conviction to the New York State Supreme Court, Appellate Division, Third Department, however, that court affirmed the convictions and sentences in all respects. People v. Brown, 232 A.D.2d 750 (3rd Dept. 1996). Leave to appeal from that determination to the New York State Court of Appeals was denied on January 15, 1997. People v. Brown, 89 N.Y.2d 940 (1997).

On April 3, 1997, Brown filed a pro se motion to vacate the conviction pursuant to New York's Criminal Procedure Law ("CPL") § 440.10, claiming that the prosecution failed to disclose to him a statement given by his wife to Detective Michael Sbuttoni of the Albany Police Department, as well as a statement made by Angella McCall, before the grand jury that indicted Brown. He also claimed that the victim was improperly permitted to make an in-court identification of Brown as the perpetrator. See CPL § 440.10 motion. County Court Judge Thomas A. Breslin denied that application in his order dated July 28, 1997. The Third Department denied Brown's request to appeal Judge Breslin's decision by Order dated October 6, 1997, People v. Brown, No. 10150 (3rd Dept., Oct. 6, 1997), and the Court of Appeals dismissed Brown's application for leave to appeal. People v. Brown, S910875, slip op. at P. 1 (Nov. 7, 1997).

Brown also filed a collateral challenge to his conviction with the Third Department on August 12, 1997, in the form of an application for a writ of error coram nobis alleging ineffective assistance of appellate counsel. That application was denied by the Third Department on October 3, 1997, see People v. Brown, No. 10165 (3rd Dept., Oct. 3, 1997), and the Court of Appeals dismissed Brown's application for leave to appeal. People v. Brown, 91 N.Y.2d 833 (1997).

Brown's final state-court challenge to his conviction was a motion to set aside his sentence pursuant to § 440.20 which he filed on September 1, 1998. The County Court denied that application on July 20, 1999, and Brown was denied permission to appeal that order to the Third Department in its order dated October 14, 1999.*fn3 See People v. Brown, No. 11474 (3rd Dept., Oct. 14, 1999).

B. This Proceeding

Brown commenced this proceeding on February 1, 2000 (Pet. (Dkt. No. 1) at P. 7).*fn4 U.S. District Judge David N. Hurd issued an order pursuant to the rules governing § 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, which, inter alia, directed the respondent to respond to the petition (Dkt. No. 4), and on June 23, 2000, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law, requesting dismissal of the petition. Dkt. Nos. 8-9.*fn5

III. Discussion

Enactment by Congress of the AEDPA brought about significant changes to the prisoner litigation landscape. One of those was the institution of a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996. 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).

As noted above, the Court of Appeals denied Brown leave to appeal on January 15, 1997. Thus, his conviction became "final" on April 15, 1997, "when his time to seek direct review in the United States Supreme Court by writ of certiorari expire[d]." Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001); (quoting Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998)); Hernandez v. Artuz, No. 99CIV.4522, 2002 WL 236678, at *3 (S.D.N.Y. Feb. 14, 2002) (quoting Williams); see also, 28 U.S.C. § 2244(d)(1)(A). Although the AEDPA's statute of limitations would typically have begun to run on that date, Brown filed his first state court challenge to his conviction, his § 440.10 motion, on April 3, 1997. That filing tolled the applicable statute of limitations until October 6, 1997, when the Third Department denied Brown permission to appeal the denial of his § 440 motion. See 28 U.S.C. § 2244(d)(2); e.g. Gomez v. Duncan, No. 02CV0846, 2002 WL 1424584, at *3 (S.D.N.Y. July 1, 2002) ("an application is pending [for AEDPA tolling purposes] as long as the ordinary state collateral review process is `in continuance' — i.e., `until the completion of' that process") (quoting Carey v. Saffold, 536 U.S. 214, 219-20 (2002)).

Thus, the statute of limitations applicable to Brown's federal habeas petition first began to run on October 6, 1997, when the Third Department denied Brown permission to appeal. Although Brown sought permission to appeal the Third Department's ruling to the Court of Appeals, that application was not "properly filed" under the AEDPA because that order of the Third Department was not appealable to the Court of Appeals under CPL § 450.90(1). See Tineo v. Strack, No. CV-98-834, 1998 WL 938950, at *3 n. 2 (E.D.N.Y. Nov. 12, 1998) (citations omitted); see also, Brown, S910875, slip op. at P. 1 (citing § 450.90(1)).*fn6

When Brown filed his § 440.20 motion on September 1, 1998, the AEDPA's statute of limitations was again tolled. However, by the time of that filing, 330 days of the AEDPA's statute of limitations had elapsed. The AEDPA's statute of limitations began running anew on October 14, 1999 (when the Appellate Division denied Brown leave to appeal the County Court's denial of his § 440.20 motion),*fn7 and continued to run until February 1, 2000 (or 110 days), the date on which Brown signed his federal habeas petition.

Thus, after excluding the time during which the statute of limitations was tolled, a total of 440 days passed between the date on which Brown's conviction became final and the filing of this proceeding. Therefore, Brown has exceeded the statute of limitations by 75 days. Accordingly, 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. 2000); Alamo v. Ricks, No. 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 four hundred and seven days (407) after effective date of the AEDPA dismissed as untimely); Nusbaum v. Shriver, No. 97-CV-1029, 1998 WL 59478 (N.D.N.Y. Feb. 10, 1998) (Pooler, D.J.) (dismissing petition filed twenty-two (22) 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). However, equitable tolling is only available when "`extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren, 219 F.3d at 113 (quoting Smith, 208 F.3d at 17); Agramonte v. Walsh, No. 00 CV 892, 2002 WL 1364086, at *1 (E.D.N.Y. June 20, 2002). "To merit application of equitable tolling, the petitioner must demonstrate that he acted with reasonable diligence during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances beyond his control prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001) (internal quotation and citation omitted), cert. denied, 535 U.S. 1017 (2002); see also, Warren, 219 F.3d at 113 (citing Smith, 208 F.3d at 17).

The record establishes that Brown did not act with reasonable diligence between the time his conviction became final and the date on which he filed this action. Brown waited nearly one year after his § 440.10 and coram nobis applications had been denied before choosing to file his § 440.20 motion to set aside his sentence, and then waited several months after that application was denied before commencing this action. The court finds no basis to invoke equitable tolling in order to consider the substance of his untimely petition. Accordingly, this court recommends that this action be denied and dismissed as time-barred under the AEDPA.

WHEREFORE, it is hereby

ORDERED, that the clerk seal the file in this proceeding in order to comply with N.Y.'s Civil Rights Law § 50-b; and it is further

RECOMMENDED, that Brown's petition be DENIED and DISMISSED in its entirety; 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. 28 U.S.C. § 636(b)(1); Fed.R. Civ. P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

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