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January 16, 2004.

JOSEPH MULLER, Petitioner, -against- CHARLES GREINER, Respondent

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


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 ("Muller Ltr.").


  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 Page 2 Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner asks this Court to exercise its powers to toll the limitations period.

  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 appellate attorney; Page 3 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 Great Meadow).

  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 Page 4 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 Page 5 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 Page 6 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 ...

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