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United States District Court, S.D. New York

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 v. Price, No. 02-4274, 2003 WL 22596488, at *2 (3d Cir. Oct. 10, 2003) ("The burden rests on petitioner to prove all facts both procedural and substantive, entitling him or her to [equitable] relief.").

  B. Solitary Confinement Is Not an Extraordinary Circumstance

  "Transfers between prison facilities, solitary confinement, lockdowns, restricted access to the law library and an inability to secure court documents do not qualify as extraordinary circumstances." Warren v. Kelly, 207 F. Supp.2d 6, 10 (E.D.N.Y. 2002). See also Hizbullahankhamon v. Walker, 105 F. Supp.2d 339, 344 (S.D.N.Y. 2000) ("While solitary confinement does present an obstacle to filing a timely habeas petition, it does not qualify as an extraordinary circumstance."), aff'd, 255 F.3d 65 (2d Cir. 2001), cert. denied, 536 U.S. 925 (2002); Page 7 Montalvo v. Strack, No. 99 Civ. 5087, 2000 WL 718439 at *2 (S.D.N.Y. June 5, 2000) (holding that transfers between prison facilities do not merit equitable tolling).*fn2

  C. Confiscation of Legal Papers Is an Extraordinary Circumstance

  However, the Second Circuit has held that the intentional confiscation of a prisoner's habeas petition and related legal papers by a corrections officer is "extraordinary" as a matter of law. See Valverde, 224 F.3d at 133-34. Accordingly lf such confiscation "prevents a petitioner from filing before the ordinary limitations period expires, the tolling period must be sufficient to permit the filing of a petition on or before the earliest date after the act of confiscation by which that petitioner, acting with reasonable diligence, should have filed his or her petition." Id. at 134.

  D. Petitioner Did Not Act with Reasonable Diligence

  The question, then, is whether petitioner acted with reasonable diligence from the time his legal papers were confiscated on May 14, 1997, to the time he actually filed his petition on July 22, 2002. For a number of reasons, this Page 8 question must be answered in the negative. First, petitioner claims that when his mother visited he was unable to give her his attorney's phone number because all of his letters had been confiscated. See Muller Ltr. at 2. However, petitioner claims to have written no less than twenty-five letters to his attorney while at Great Meadow, Southport and Attica. See id. Petitioner must have had his attorney's name and address in order to send these letters. Surely he could have given his mother this information and asked her to obtain the attorney's phone number from a telephone directory. Second, petitioner states that he lost his phone privileges for a "an extended period of time." Id. at 4. But he does not provide the exact dates of when his phone privileges were suspended and when they were restored. Presumably, petitioner's phone privileges were restored prior to the filing of the instant petition or petitioner would have averred that he had no phone privileges for the entire period of time under consideration, not just an "extended period of time." Furthermore, petitioner admits that he spoke to his mother after his phone privileges were restored. See Muller Ltr. at. 2.

  It is undisputed that petitioner was released from the SHU sometime in January of 2001, while incarcerated at Attica. Assuming that his phone privileges remained suspended and that his outgoing mail was constantly being intercepted, petitioner could have asked a fellow inmate to write to his attorney on his Page 9 behalf. Petitioner, who has previously sought assistance from another inmate when needed, did not attempt to do so. See Muller Ltr. at 1 ("Please be advised that I am being assisted by an inmate in the preparation and submission of this reply."). Furthermore, his outgoing mail was not, and is not, intercepted at Green Haven as evidenced by his correspondence to this Court in the instant matter. Despite having access to the mails, petitioner has not alleged that he wrote to anyone upon his transfer to Green Haven on April 1, 2002. Thus, for almost four months, from April 1 to July 22, 2002, petitioner made no attempt to obtain the information necessary to complete his habeas petition. In fact, petitioner took no action whatsoever until his chance encounter with inmate Barnes, who presumably provided petitioner with a copy of his legal papers.*fn3

  Finally, there is petitioner's claim that his incoming and outgoing mail were interfered with at Great Meadow, Southport and Attica. Initially, petitioner's allegation of such interference was made upon information and belief without any corroborating evidence. See Pet. Aff. at 7 ("It appears that the New York State Department of Correctional Services ("DOCS") employees at these facilities were interfering with my outgoing Page 10 and incoming mail. . . . I believe that my letters were destroyed by correction offices in retaliation for my actions against correctional staff which lead to my confinement in SHU.") (emphasis added). In his reply letter, petitioner explained: "I know my letters were intercepted and destroyed while at these facilities, because my mother told me after my phone privileges were restored that she hadn't gotten a letter from me in years. She also told me that she had been continually writing me, however, I never received a letter from her." Muller Ltr. at 2.

  Petitioner has failed to prove his mail interference claim. Consequently, this claim does not support a finding of reasonable diligence on petitioner's part.*fn4 In Candelaria v. Greifinger, No. 96-CV-0017, 1997 WL 176314, at *11 (N.D.N.Y. Apr. 9, 1997), the court found that an inmate-plaintiff failed to establish a likelihood of success on his claim that defendants interfered with his incoming and outgoing mail. The court noted that plaintiff "has submitted no affidavits of other inmates, prison memoranda or other documentation which indicate to the Court that defendants have interfered with his mail or that he is entitled to the relief he seeks." Id. As in Candelaria, petitioner has offered nothing in the way of corroborating Page 11 evidence such as an affidavit from his mother or his attorney or the prison mail logs from any of the facilities allegedly involved. Because petitioner has failed to substantiate his conclusory allegation of mail interference, this Court cannot find that petitioner acted with reasonable diligence during the period he seeks to toll.


  For the foregoing reasons, petitioner has failed to show that he acted with reasonable diligence throughout the period he seeks to toll. Accordingly, equitable tolling is not warranted and his petition is dismissed as time barred. Because this dismissal is not based on a consideration of the petition's merits, a certificate of appealability is granted for the limited purpose of determining whether equitable tolling is warranted under these circumstances. The Clerk of the Court is directed to close this case.


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