The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
On January 13, 2004, this Court issued an Order to Vensel Hardy
("Hardy" or "Petitioner") to show cause in writing within thirty days of
that Order as to why his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 should not be dismissed as time-barred. Petitioner
has timely responded. For the following reasons, Hardy's petition for a
writ of habeas corpus is dismissed.
On August 19, 1999, Vensel Hardy was convicted, following a jury trial
in Suffolk County Court (Weber, J.), for Robbery in the First Degree,
Robbery in the Second Degree, and Criminal Possession of a Weapon in the
Third Degree, in violation of N.Y. Penal Law §§ 160.15, 160.10,
and 265.02, respectively. On June 3, 2002, the Appellate Division, Second
Department affirmed his convictions. People v. Hardy, 295 A.D.2d 365,
743 N.Y.S.2d 287 (2d Dept. 2002). On August 19, 2002, the Court of
Appeals denied Hardy leave to appeal. People v. Hardy, 98 N.Y.2d 710,
749 N.Y.S.2d 8 (2002). Hardy did not seek certiorari review before
the United States Supreme Court or file any post-conviction motions.
On December 9, 2003, Hardy filed the instant petition for a writ of
habeas corpus. The Court notes that the petition indicates that the date
on which Hardy signed the petition was November 15, 2003. However, Hardy
has failed to provide an affidavit of service to show when he submitted
his petition to the Department of Correctional Services ("DOCS") for
filing within these three weeks. On January 13, 2004, this Court issued
an Order to Show Cause to Hardy to respond as to why his petition should
not be dismissed as untimely. Hardy replied that the reason he did not
timely file his petition was that the prisoner "clerk" assigned to assist
him was transferred on or about November 5, 2003, and during that time,
"some of the paper work was misplaced." Hardy Letter to Court dated
January 25, 2004.
Petitioner filed this action after the April 24, 1996, effective date
of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Accordingly, AEDPA's provisions apply to his case. Williams v.
Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 1486, 146 L.Ed.2d 435
Pursuant to 28 U.S.C. § 2244(d)(1), a state prisoner has one year
from the date his conviction becomes "final" to file a habeas petition in
federal court. The date on which a judgment becomes final is at the
"conclusion of direct review or the expiration of the time for seeking
such review." 28 U.S.C. § 2244(d)(1)(A). For New York prisoners, that
generally means that a conviction is final ninety days after leave to
appeal to the New York Court of Appeals is denied, because defendants
have ninety days to seek certiorari review before the United States
Supreme Court. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir.
In this case, Petitioner filed his habeas petition after the one-year
statute of limitations expired. Pursuant to
28 U.S.C. § 2244(d)(1)(A), Hardy's conviction became final on November 18,
2002 when the ninety day period in which to seek certiorari review expired.
Accordingly, Petitioner had until November 18, 2003 to file his petition
for a writ of habeas corpus with this Court. Although Petitioner appears
to have dated his signature as November 15, 2003, which was within the
one-year period, he filed his petition three weeks later. Hardy fails to
provide an affidavit of service to show that he in fact submitted his
petition to the Department of Correctional Services ("DOCS") for filing
and copying by November 18, 2003. Therefore, his petition is untimely.
Nevertheless, Hardy's petition could still be found timely if he is
eligible for equitable tolling to cover the period of November 18, 2003
to December 9, 2003. Hardy argues that equitable tolling should apply
because the prisoner "clerk" assigned to assist him was transferred on or
about November 5, 2003, and during that time, "some of the paper work was
misplaced." Hardy Letter to Court dated January 25, 2004.
The Court may "equitably toll" the AEDPA's one-year period statute of
limitations when "rare or extraordinary circumstances" prevent the
prisoner from filing timely and upon a showing that the petitioner acted
with reasonable diligence throughout the period he desires to toll.
Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (finding
that intentional confiscation of a prisoner's habeas petition by a
corrections officer is "extraordinary" as a matter of law). However,
transfers between prison facilities, solitary confinement, lock-downs,
restricted access to the law library and an inability to secure court
documents do not qualify as extraordinary circumstances. See Asencio
v. Senkowski, 2000 WL 1760908 at *2 n.4 (S.D.N.Y. Nov. 30, 2000)
(holding solitary confinement does not qualify as extraordinary
circumstance); Montalvo v. Strack, 2000 WL 718439 at *2
(S.D.N.Y. June 5, 2000) (holding transfers between prison facilities do
not merit equitable tolling); Martinez v. Kuhlmann, 1999 WL
1565177 at *5 (S.D.N.Y. Dec. 3, 1999) (noting various circumstances not
eligible for equitable tolling, including lack of English language
proficiency and lack of aid in research).
Nevertheless, even if this Court was to assume that Petitioner was
denied access to his legal materials and the assistance of another
prisoner in filing his petition, Petitioner fails to show that he was
actually prevented from timely filing his petition. See
Hizbullahankhamon v. Walker, 255 F.3d 65, 76 (2d Cir. 2001). The
fact that Hardy may have had difficultly in filing his petition without
the aid of another prisoner is not a ground for equitable tolling and
does not show that he was prevented from timely filing. Moreover, Hardy's
broad conclusory allegation that he could not timely file his petition
because some of his legal papers were "misplaced" during the time of the
other prisoner's transfer also does not merit equitable tolling.
Therefore, equitable tolling is not warranted here. Accordingly, Hardy's
petition is dismissed as time-barred.
For the foregoing reasons, Hardy's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED. Pursuant to Fed.R. App.
P. 22(b) and 28 U.S.C. § 2253(c)(2), a certificate of appealability
is denied, as Hardy has not made a substantial showing of a denial of a
constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 336,
123 S.Ct. 1029, 1039, 154 ...