The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
MEMORANDUM OPINION AND ORDER
On October 8, 2003, this Court issued an Order directing petitioner to
show cause why his habeas petition should not be dismissed as time
barred. Petitioner responded with a detailed Affirmation in Response
("Pet. Aff.") dated October 15, 2003. Respondent submitted a letter in
opposition dated December 22, 2003. See 12/22/03 Letter from Richard
Nahas, Assistant District Attorney ("Nahas Ltr."). Petitioner then
replied to respondent's letter. See 12/30/03 Letter from Joseph Muller
Petitioner concedes that his conviction became final on September 5,
1996, and that his time to petition for habeas relief expired on
September 5, 1997. See Pet. Aff. at 3. Petitioner did not, however, file
his petition until July 22, 2002, approximately four years and ten months
after the expiration of the one-year limitation period imposed by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Petitioner asks this Court to exercise its powers to toll the limitations
Petitioner has been housed at a number of different facilities during
the course of his incarceration. Petitioner was transferred to the
following facilities on the following dates: Great Meadow Correctional
Facility ("Great Meadow") on January 25, 1996; Southport Correctional
Facility ("Southport") on August 27, 1997; Attica Correctional-Facility
("Attica") on November 6, 2000; and Green Haven Correctional Facility
("Green Haven") on April 1, 2002, where he remains in custody. See Nahas
Ltr. at 1 n.l. After a disciplinary hearing was held on April 5, 1997,
petitioner was sentenced to nine years in the Special Housing Unit ("SHU")
for assaulting several corrections officers at: Great Meadow. See Pet.
Aff. at 4. This sentence was subsequently commuted to three years and
nine months for good behavior while petitioner was at Southport. See id.
Accordingly, petitioner was released from SHU confinement on or about
January 5, 2001.
On May 14, 1997, petitioner's legal papers were confiscated from
petitioner's cell in the Great Meadow SHU. See id. Among these papers were
petitioner's appellate briefs, the appellate division decision; the New
York Court of Appeals decision; correspondence from petitioner's
and petitioner's almost completed habeas petition. See id. at 5. Although
petitioner filed an Inmate Grievance in an attempt to retrieve his
papers, he received no response and was subsequently moved to Southport.
See id. at 6.
Upon his transfer to Southport, petitioner "began writing [his]
attorney, Mr. Alemany, family, friends, and the courts to get copies of
[his] legal papers if any existed," to no avail. Id. Petitioner also
claims to have made "diligent attempts" while at Attica, which were
equally unsuccessful. See id. at 6-7. According to petitioner, he
received no responses while at Southport and Attica because "New York
State Department of Correctional Services ("DOCS") employees at these
facilities were interfering with [his] outgoing and incoming mail." Id.
at 7., Destruction of petitioner's outgoing mail was purportedly done in
retaliation for petitioner's actions against correctional staff that led
to his confinement in SHU. See id.; See also Muller Ltr. at 2 (stating
that while at Great Meadow, Southport and Attica, petitioner wrote no
less than twenty-five letters to his appellate attorney which he believes
were destroyed in retaliation for his assaulting corrections officers at
In addition to the alleged interference with his mail, there were other
alleged impediments which stymied petitioner's attempts to obtain his
legal papers. For example, although
petitioner's mother visited him once while he was at Southport, petitioner
claims he was unable to give her his attorney's phone number "because all
the letters had been taken with [his] legal papers on May 14th while at
Great Meadow." Muller Ltr. at 2. In addition, petitioner was unable to
make any telephone calls, both during and after his release from SHU,
because he had lost his phone privileges and all of his phone numbers had
been deactivated by DOCS.*fn1 See id. at 3-4.
Petitioner was finally able to obtain copies of his appellate briefs
from another inmate, G. Barnes, whom he had met at. Great Meadow in
1996. See Pet. Aff. at 7. While at Great Meadow, Barnes read petitioner's
appellate briefs, appellate division decisions, and New York Court of
Appeals decision. See Affidavit of G. Barnes ("Barnes Aff."), Ex. H to
Pet. Aff., at 2. Barnes thought petitioner's legal papers might be useful
to other inmates so he photocopied them. See Barnes Aff. at 1; Pet. Aff.
at 7. Years later, petitioner ran into Barnes while at Green Haven. See
Pet. Aff. at 8. Although Barnes does not recall exactly when he
encountered petitioner at Green Haven, he believes that it was in late
July or early August of 2002. See Barnes Aff. at 1. Barnes told
petitioner that he still had the photocopies he made at Great. Meadow. See
id. at 2. Petitioner
then filed the instant petition with the United States District Court for
the Northern District of New York on July 22, 2002.
A. Standard for Equitable Tolling
"Generally, equitable tolling is difficult to attain, as it is reserved
for `extraordinary and exceptional circumstances.'" United States v. All
Funds Distributed To, or o/b/o Weiss, 345 F.3d 49, 54 (2d Cir. 2003)
(quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). In order to
equitably toll AEDPA's one year limitation period, a petitioner "must
show that extraordinary circumstances prevented him from filing his
petition on time. . . . In addition, the party seeking equitable tolling
must have acted with reasonable diligence throughout the period he seeks
to toll." Smith, 208 F.3d at 17. "The word `prevent' requires the
petitioner to demonstrate a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and the
lateness of his filing, a demonstration that cannot be made if the
petitioner, acting with reasonable diligence, could have filed on time
notwithstanding the extraordinary circumstances." Valverde v. Stinson,
224 F.3d 129, 134 (2d Cir. 2000).
Petitioner has the burden of proving that equitable telling is
appropriate. See All Funds, 345 F.3d at 55 ("A party seeking to benefit
from the doctrine bears the burden of proving
that tolling is appropriate."). "`A federal habeas corpus petitioner has
the burden of proving all facts entitling him to discharge from custody.
Although this burden is applicable to the substantive elements of a
petitioner's claim, we see no reason why he should not bear the burden of
demonstrating that he has met the procedural requisites that entitle him
to relief as well.'" Clapsadl v. Shannon, No. 02-CV-4621, 2003 WL
22871663, at *1 (E.D. Pa. Nov. 18, 2003) (quoting Brown v. Cuyler,
669 F.2d 155, 158 (3d Cir. 1982) (citation omitted)); See also Cooper ...