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HALL v. HERBERT

United States District Court, S.D. New York


February 11, 2004.

WILLIE LEON HALL, Petitioner -against- VICTOR T. HERBERT, Warden, Respondent; WILLIE LEON HALL, Petitioner -against- VICTOR T. HERBERT, Warden, Respondent

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

ORDER

On April 30, 2003, Magistrate Judge Frank Maas issued a report and recommendation ("Report") recommending that respondent Victor Herbert's motion to dismiss as time-barred Willie Leon Hall's two petitions for writ of habeas corpus be granted. Hall submitted timely objections to the Report.

In reviewing a report and recommendation, the court "may accept, reject, or Page 2 modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(c) (West 2002). "To accept the report and recommendation of a magistrate to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the record. Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, to the extent that a party simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., No. 00 CV 7552, 2002 US Dist LEXIS 24700, at *4-5 (S.D.N.Y. Dec. 26, 2002) (objections that are mere attempts to rehash issues that have already been decided should be reviewed for clear error.)

  Judge Maas found Hall's petitions to be untimely under 28 U.S.C.A § 2244(d)(1) (West 1994 & Supp. 2003), a provision enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and recommended that the petitions be dismissed on those grounds. As explained in Judge Maas' Report, Judge Maas found that there was no factual basis for Petitioner's contention that the petitions should be held timely by virtue of tolling arising from continuous pendency of applications for post-conviction or other collateral review of his convictions.

  In his Objection to the Report, Petitioner raises two further timeliness arguments for the first time: that he is entitled to equitable tolling because the state's apparent inability to provide him with transcripts of his trial proceedings prevented him from filing the habeas corpus Page 3 petitions on a timely basis, and that AEDPA's statute of limitations provisions violate Petitioner's constitutional rights. Because neither of these new arguments is the proper subject of an objection to a Report and Recommendation, they could be rejected on that basis alone. Cf. Forman v. Artuz, 211 F. Supp.2d 415, 419 n.8 (S.D.N.Y. 2000), and cases cited therein. In deference to Petitioner's pro se status and in the interests of the efficient administration of justice the Court has, however, examined the merits of these contentions.

  A state's failure to deliver a trial transcript does not categorically preclude the filing of a petition for habeas corpus or normally constitute grounds for equitable tolling of the statutory time limit. See Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001). Evidence of such failure may, however, support a finding that the tolling provisions of 28 U.S.C. § 2244(d)(1)(B) (providing that limitation period in appropriate circumstances runs from "the date on which [an] impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action") or 28 U.S.C. § 2244(d)(1)(D) (under appropriate circumstances limitation period runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence") should apply. See Edmond v. United States Attorney, 959 F. Supp. 1 (D.D.C. 1997) (discussing parallel provisions applicable to persons in federal custody). Plaintiff has not asserted any constitutional or other federal law violation in connection with the unavailability of the transcripts, does not premise his petition on newly-discovered evidence, and has proffered no facts showing that the unavailability of the transcripts prevented him from filing the petition. Indeed, his pursuit of his direct appeal, two section 440.10 motions and a petition for a writ of error coram nobis prior to the expiration of the Page 4 AEDPA limitations period suggests strongly that the lack of transcripts did not prevent timely filing of the instant petitions. Accordingly, Petitioner's equitable tolling argument is without merit.

  As to Petitioner's constitutional argument, it is well-settled that AEDPA's one-year statute of limitations does not deny prisoners a reasonable opportunity to try their claims on the merits and that, despite the statute of limitations, the habeas remedy is still an adequate means of testing the legality of their detention. Therefore, the statute of limitations "does not per se constitute an unconstitutional suspension of the writ of habeas corpus." Lucidore v. New York State Division of Parole, 209 F.3d 107, 113 (2d Cir. 2000). Furthermore, Petitioner has proffered no facts that could support a rational conclusion that he did not have a reasonable opportunity to file his petitions for habeas corpus in a timely fashion.

  The Court has reviewed thoroughly Judge Maas' well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petitions for writs of habeas corpus are denied.

  The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. 2253(c)(2): see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. The Court further certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962). Page 5

  Judge Maas' Report follows.

  SO ORDERED.

  FRANK MAAS, United States Magistrate Judge.

 I. Introduction

  Petitioner Willie Leon Hall ("Hall"), proceeding pro se pursuant to 28 U.S.C. § 2254, has filed two habeas corpus petitions, in which he challenges two separate judgments of conviction entered against him in 1988 in Supreme Court, Bronx County. The Respondent has now moved to dismiss both petitions as time-barred under 28 U.S.C. § 2244(d)(1), a provision enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For the reasons that follow, I recommend that the Respondent's motion be granted and the petitions dismissed as untimely.

 II. Background

  A. Trial and Conviction

  On January 11, 1988, following a jury trial, Hall was convicted on multiple Page 6 felony counts of rape, sodomy, and burglary, among other crimes. Justice Peggy Bernheim sentenced Hall, as a predicate violent felony offender, to an aggregate indeterminate sentence of 56 to 112 years in prison. See People v. Hall, 163 A.D.2d 161, 162, 557 N.Y.S.2d 379, 380 (1st Dep't 1990).

  On June 9, 1988, following a second jury trial, Hall was convicted on multiple felony counts of rape, robbery, and burglary, among other crimes. Justice Vincent A. Vitale sentenced Hall, as a second violent felony offender, to an aggregate indeterminate term of 25 to 50 years in prison, to be served after the completion of his prior sentence. Id.

  The predicate for the enhancement of Hall's sentence in both cases was his prior conviction in Supreme Court, Bronx County, on November 4, 1976, on charges of rape, burglary, and assault. (See Affidavit of Assistant District Attorney Claris R. Sukkar, sworn to on February 14, 2003 ("Sukkar Aff."), ¶ 5).

  B. Direct Review

  On July 10, 1990, the Appellate Division, First Department, unanimously affirmed both 1988 judgments of conviction. See Hall, 163 A.D.2d at 162, 557 N.Y.S.2d at 380. In a single decision addressing both cases, the court characterized Hall's crimes as "serious and heinous," noting further that they were committed while he was on parole Page 7 from a prior rape conviction. Id. 163 A.D.2d at 162-63, 557 N.Y.S.2d at 380. Hall's offenses apparently were signature crimes, in which all but one of the victims were attacked at knife point during the early morning hours, after entry to their apartments was gained through a window or fire escape. Id. 163 A.D.2d at 162, 557 N.Y.S.2d at 380. Also, in at least two instances, Hall used the victims' underwear to wipe himself after the rape. Id. When he was apprehended, Hall was coming down a fire escape and had in his possession a knife, a roll of toilet paper, and a pair of panty hose; additional property taken during the course of his crimes was seized pursuant to a search warrant from his apartment. Id. Adding to the strength of the case, Hall also confessed to all four of the rapes with which he was charged. Id.

  The Appellate Division found that there was probable cause to search Hall's apartment, and that his claims with respect to the People's summation were either unpreserved, without merit, or "harmless error" in light of the overwhelming evidence of his guilt. Id. Additionally, given Hall's record, the court found no abuse of the trial judge's sentencing discretion. Id. 163 A.D.2d at 163, 557 N.Y.S.2d at 380.

  On September 7, 1990, Hall's application for leave to appeal to the New York Court of Appeals from the judgments of conviction was summarily denied. People v. Hall, 76 N.Y.2d 893, 561 N.Y.S.2d 555 (1990).

  On January 18, 1994, the Appellate Division, First Department, reversed the 1976 conviction that had served as the predicate for the enhancement of Hall's 1988 Page 8 sentences. People v. Hall, 200 A.D.2d 474, 608 N.Y.S.2d 403 (1st Dep't 1994). As the court noted, at the time of Hall's sentencing in 1976, his court-appointed lawyer indicated that he would remain with the case and filed a notice of appeal on Hall's behalf. Id., 200 A.D.2d at 474, 608 N.Y.S.2d at 404. Thereafter, however, no application to proceed as a poor person was made, and the trial minutes were never transcribed. Id. By the time that leave to proceed as a poor person eventually was granted in 1990, the trial minutes were missing, the parties were unable to locate anyone who had any independent recollection of the proceedings, and there was no alternative method of providing an adequate record. Id. 200 A.D.2d at 474-75, 608 N.Y.S.2d 404-05. As a consequence, Hall's conviction was reversed and the case was remanded for a new trial. Id. Not surprisingly, the indictment in the 1976 case subsequently was dismissed on the People's motion. (Sukkar Aff. ¶ 8).

  The reversal of the 1976 conviction required that Hall be resentenced in connection with the 1988 convictions. (Id. ¶ 9). On June 2, 1994, Justice John Byrne imposed prison terms which, in the aggregate, constituted an indeterminate sentence of 54 to 162 years. (Id.).

  On October 17, 1996, the Appellate Division unanimously affirmed the amended judgments of conviction. People v. Hall, 232 A.D.2d 968, 648 N.Y.S.2d 491 (1st Dep't 1996). On November 19, 1996, Hall's application for leave to appeal to the New York Court of Appeals was summarily denied. People v. Hall, 89 N.Y.2d 864, Page 9 653 N.Y.S.2d 287 (1996).

  C. Post-Judgment Motions

  Over the next six years, Hall filed five motions to vacate the amended judgments of conviction, as well as a coram nobis petition. All of these applications were brought pro se.

  By motion dated January 7, 1997, Hall sought to have the amended judgments of conviction vacated pursuant to Sections 440.10 (" § 440.10") and 440.30 of the New York Criminal Procedure Law ("N.Y. C.P.L.") ("First § 440.10 Motion), alleging that he was denied the right to attend a pretrial Sandoval hearing and that DNA testing would prove his innocence. (Sukkar Aff. ¶ 12). On May 5, 1997, Justice Byrne denied this motion. (Id. ¶ 13 & Ex. 5). Although there is no indication that Hall was served with notice of the entry of Justice Byrne's order, he clearly was aware of this disposition by May 12, 1997. (See id. Ex. 7 at 13). Despite that knowledge, Hall did not seek leave to appeal within thirty days, i.e., by June 11, 1997, as required by N.Y. C.P.L. § 460.10(1)(a). (See id. at 13-14).

  By motion dated November 18, 1997 ("Second § 440.10 Motion"), Hall sought to have the amended judgments of conviction vacated on the ground that he was denied effective assistance of trial counsel. (Id. ¶ 14). Justice Byrne denied this motion on May 20, 1998. (Id. ¶ 15 & Ex. 6). On October 6, 1998, the Appellate Division, First Department, denied Hall's application for leave to appeal from this denial. (Id. ¶ 16). Page 10

  By motion dated November 20, 1998, Hall sought a writ of error coram nobis from the Appellate Division, First Department, on the ground that his counsel on direct appeal was ineffective because he had failed to raise certain issues.[fn*] (Id. ¶ 17). On August 19, 1999, the Appellate Division, First Department denied this application. People v. Hall, 264 A.D.2d 545, 697 N.Y.S.2d 454 (1st Dep't 1999).

  By motion dated September 15, 2000, as amended on October 12, 2000 ("Third § 440.10 Motion"), Hall again sought to have the amended judgments of conviction vacated. (Sukkar Aff. ¶ 19 & Ex. 7). In his papers, Hall alleged that newly-discovered evidence demonstrated that he suffered from a mental abnormality. (Id.) Justice Byrne denied this motion on October 23, 2000. (Id. ¶ 20 & Ex. 8). Hall was served with notice of the entry of this decision on November 2, 2000. (Id.).

  By motion dated March 5, 2001 ("Fourth § 440.10 Motion"), Hall again requested that the amended judgments of conviction be vacated, this time alleging that he was not guilty by reason of mental disease or defect. (Id. ¶ 21 & Ex. 9). On March 26, 2001, Justice Byrne denied this motion; Hall was served with notice of the entry of this decision on March 28, 2001. (Id. ¶ 22 & Ex. 10).

  By letter dated April 12, 2001, as amended on April 22, 2001, Hall sought Page 11 leave to appeal from the orders denying his Third and Fourth § 440.10 motions. (Id. ¶ 23). On September 6, 2001, in two separate certificates, the First Department denied Hall's request for leave to appeal.[fn**] (Id. ¶ 24 & Ex. 11).

  Finally, by motion dated January 11, 2003 ("Fifth § 440.10 Motion"), Hall sought to have the amended judgments of conviction vacated on the ground of "new evidence" that his appeal from the 1976 conviction had not been perfected. (Sukkar Aff. at 8 n.2). Justice Byrne denied this motion on February 3, 2003, and Hall was served with notice of entry the same day. (Id.).

  D. Federal Habeas Petition

  Hall's habeas petitions, dated February 28, 2002, were received by the Pro Se Office of this Court on March 5, and were filed on March 22, 2002.

 III. Discussion

  A. Section 2244(d)(1)

  Title 28, United States Code, Section 2244(d)(1), requires a state prisoner to commence his habeas proceeding within one year of the latest of several triggering events. In this case, the only applicable provision is subsection (A), which requires the petitioner to bring his petition within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The Second Circuit has interpreted "direct review" Page 12 to include direct review by both the state courts and the United States Supreme Court "so that a petitioner's `conviction bec[omes] final for [AEDPA] purposes when his time to seek direct review in the United States Supreme Court by writ of certiorari expire[s].'" Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001)(quoting Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998)). Hall's conviction therefore became final on February 16, 1997, ninety days after the Court of Appeals' November 19, 1996 decision denying his application for leave to appeal from the First Department's affirmance of the amended judgments of conviction. See S.Ct. R. 13.

  By the date that Hall's conviction became final, he had already filed his First § 440.10 Motion. Accordingly, because the AEDPA limitations period only begins to run when a conviction becomes "final," the time prior to February 16, 1997 must be excluded from the calculation of the one-year period within which Hall had to commence his habeas proceeding.

  There is some question whether a motion for collateral relief, once filed, tolls the AEDPA limitations period only from the date it is filed through the date it is decided or should, instead, be deemed "pending" until any further appellate review is foreclosed. See Duamutef v. Mazzuca, 2002 WL 413812, at *7 n.5 (S.D.N.Y. Mar. 15, 2002)(citing Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999). aff'd, 531 U.S. 4 (2000), and Hodge v. Greiner, 269 F.3d 104, 107 n.l (2d Cir. 2001)). The most favorable Page 13 interpretation for Hall would be that his First § 440.10 Motion remained "pending" until June 11, 1997, the date by which he should have filed any application for leave to appeal to the Appellate Division. See CPL § 460.10(1)(a). For purposes of calculating the timeliness of Hall's habeas petition, I therefore have assumed that this motion was pending — and tolled the limitations period — from February 16 through June 11, 1997. No further tolling is warranted because Hall did not seek leave to appeal from the denial of his motion.

  Hall's Second § 440.10 Motion is dated November 18, 1997. On October 6, 1998, the Appellate Division denied Hall's application for leave to appeal Justice Byrne's denial of that motion. Hall's Second § 440.10 Motion therefore was only pending until then. Although there is no indication that the People sent Hall notice of the entry of the Appellate Division's order, Hall "had no appellate remedies available to him under New York law with respect to his Section 440.10 motion once leave to appeal was denied. . . .Hence,. . . any failure to serve [him] with a copy of the order denying his motion for leave to appeal to the Appellate Division was immaterial." Ramos v. Walker, 88 F. Supp.2d 233, 235-36 (S.D.N.Y. 2000).

  Hall's coram nobis petition was denied by the Appellate Division on August 19, 1999. As the Second Circuit has noted, under New York law, the petition "ceased to be pending on [that] date . . . because . . . `the door of the New York Court of Appeals was closed and further appellate review was unavailable.'" Hizbullahankhamon v. Page 14 Walker, 255 F.3d 65, 70 (2d Cir. 2001)(quoting Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.), cert. denied, 531 U.S. 1018(2000)).

  As noted, Hall's Third § 440.10 Motion is dated September 15, 2000, and he was served with notice of its denial on November 2, 2000. Hall then had thirty days in which to seek leave to appeal. Having failed to file a timely written notice of appeal, Justice Byrne's decision became final, and that motion ceased to be "pending," on December 4, 2000. Hall subsequently sought leave to appeal by letter dated April 12, 2001, but that application was untimely. See CPL § 460.10(1)(a).

  The Appellate Division denied Hall leave to appeal from the denial of his Fourth § 440.10 motion on September 6, 2001. Accordingly, that motion was pending from its March 5, 2001 filing date through September 6, 2001.

  In similar fashion, Hall's Fifth § 440.10 motion was filed on January 11 and denied by Justice Byrnes on February 3, 2003, and Hall was served with notice of entry the same day. Because the Respondent's motion to dismiss the present petition was served only two weeks later, the papers before the Court do not reflect whether Hall sought leave to appeal, and if so, the outcome of that application. Nevertheless, as the following chart shows, the one-year limitations period expired before Hall's Third § 440.10 Motion was filed. Consequently, any action that the Appellate Division may later have taken with respect to Hall's Fifth § 440.10 Motion is irrelevant to the timeliness of his petition. Page 15

 

MOTION TOLLING DAYS DATE TOLLABLE DAYS START REMAINING DECISION DAYS REMAINING DATE WHEN FILED BECAME FINAL WHEN FINAL
First § 440.10 02/16/97 365 06/11/97 115 365 Motion
Second § 440.10 11/18/97 205[fn***] 10/06/98 322 205 Motion
Petition for Writ of 11/20/98 160[fn****] 08/19/99 272 160 Error Coram Nobis
Third § 440.10 09/15/00 0[fn*****] 12/04/00 80 0 Motion
Fourth § 440.10 03/05/01 0 09/06/01 185 0 Motion
Fifth § 440.10 01/11/03 0 Motion
[fn***] Between June 11 and November 18, 1997, an additional 160 days elapsed.

 [fn****] Between October 6 and November 20, 1998, an additional 45 days elapsed.

 [fn*****] Between August 19, 1999 and September 15, 2000, an additional 393 days elapsed. At the start of this period, however, only 160 days remained on the limitations clock.

  B. Equitable Tolling

  The one-year AEDPA period is a statute of limitations, not a jurisdictional bar. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.). cert. denied, 531 U.S. 840 (2000). The period consequently can be equitably tolled if a petitioner is able to show that extraordinary circumstances prevented him from filing his petition earlier and that he acted with reasonable diligence throughout the period sought to be tolled. Id. Hall has not made either required showing. Indeed, his only argument as to why his habeas petition should be deemed timely is that he submitted "a continuous stream of state post Page 16 conviction relief applications." (See Pet'r's Affirm., dated Apr. 28, 2002, at 1). As the foregoing chart establishes, this is incorrect. In fact, the gap between the date that Hall's coram nobis petition became final and the date that his Third § 440.10 Motion was filed alone exceeds the one-year period in which a habeas proceeding must be commenced.

 IV. Conclusion

  Hall's petition is untimely. Moreover, Hall has not established any reason why the one-year limitations period should be equitably tolled. For these reasons, his petition should be dismissed.

 

V. Notice of Procedure for Filing of Objections to this Report and Recommendation
  The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Laura Taylor Swain, at the United States Courthouse, 40 Centre Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).

 [fn*] The enactment of § 440.10 has eliminated most applications for common law writs, but a criminal defendant may still bring a petition for a writ of coram nobis in the Appellate Division to challenge the effectiveness of counsel appearing on the defendant's behalf before that court. See People v. Bachert, 69 N.Y.2d 593, 599-600, 516 N.Y.S.2d 623, 627-28 (1987).

 [fn**] Although the certificates are dated August 19, 2001, they were not entered until September 6, 2001. (Id. Ex. 11).

20040211

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