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LEBRON v. SANDERS

United States District Court, S.D. New York


February 25, 2004.

ELVIN LEBRON, Petitioner, -against- THOMAS C. SANDERS, Respondent

The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION AND ORDER

Petitioner Elvin Lebron ("Petitioner") brings the current petitioners pro se pursuant to 28 U.S.C. § 2244, claiming (1) his plea of guilty was not made voluntarily with understanding of the nature of the charge and consequences of his plea; (2) the evidence used to convict him was obtained pursuant to an unconstitutional search and seizure; and (3) his trial and appellate counsel were ineffective. Respondent Thomas Sanders ("Respondent") moves to dismiss the petition on the grounds that it is time-barred under the Anti-Terrorism Effective Death Penalty Act (AEDPA). Because Petitioner's filings for state post-conviction relief have effectively tolled the statute of limitations, Petitioner's petition is not time-barred and therefore Respondent's motion is denied.

Background

  On May 24, 1994, Petitioner, then nineteen years old, pled guilty in New York County Court to Manslaughter in the First Degree, Robbery in the First Degree, and third degree gun possession. Petitioner was charged in two indictments, stemming from incidents on the Page 2 footbridge between Ward's Island and Manhattan Island and on Ward's Island. (Affirmation Supp. Mot. Dismiss at ¶ 3, 4.) The first incident was an attempted robbery on September 12, 1993, during which Petitioner's co-defendant fatally shot the victim. (Id. at ¶ 3.) The second incident was a robbery, which occurred on September 20, 1993. (Id. at 4.) The victim of the second robbery identified Petitioner's photograph and identified petitioner in a live lineup. (Id. at ¶ 6.) A witness to the first incident identified Petitioner in a post-arrest lineup as a participant in the attempted robbery. (Id.) Petitioner's co-defendant in both incidents was arrested immediately after the second robbery. (Id. at ¶ 4.)

  Petitioner unsuccessfully appealed his conviction to the Appellate Division First Department and the New York Court of Appeals. His petition for a writ of certiorari was denied by the Supreme Count of the United States on December 15, 1997. Lebron v. New York, 522 U.S. 1032, 118 S.Ct. 635 (1997) (mem.). His subsequent motions attacking his conviction-together with a calculation of time not tolled-are listed in a chart attached as an appendix to this opinion.

  On November 7, 2001, Petitioner signed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The clerk's office of the Southern District of New York received the petition on December 26, 2001.

  Analysis

  The Anti-Terrorism and Effective Death Penalty Act (AEDPA) established a statute of limitations for petitioners in state custody petitioning for federal habeas corpus relief. According to 28 U.S.C. § 2244, "A 1-year period of limitation shall apply to an application for a writ of Page 3 habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from . . . 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.A. § 2244(d)(1) (Supp. 2003). It is uncontested that the date Petitioner's judgment became final was December 15, 1997, the date when the Supreme Court of the United States denied Petitioner a writ of certiorari. Lebron v. New York, 522 U.S. 1032, 118 S.Ct. 635 (1997) (mem.); see 28 U.S.C.A. § 2244(d)(1) (Supp. 2003); Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (finding petitioner's judgment of conviction became final when his time to seek review by the U.S. Supreme Court by writ of certiorari expired).

  Although the petition was received by the Clerk's office in December 2001, it is also uncontested that the effective date of the filing of the petition is November 7, 2001, the date Petitioner signed the petition. See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (holding that petitions of pro se incarcerated litigants are deemed filed when delivered to prison officials for mailing). Thus, because nearly four years elapsed between the time Petitioner's conviction became final (December 15, 1997) and the date he filed his petition for a writ of habeas corpus in federal court (November 7, 2001), on its face, the petition was filed well beyond the one-year statute of limitations period established by AEDPA.

  The one-year statute of limitations is tolled, however, for, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . ." 28 U.S.C.A. § 2244(d)(2) (Supp. 2003). Accordingly, the timeliness of the instant petition depends on which of Petitioner's post-conviction motions in Page 4 state court tolled the one-year statute of limitations and for how long those motions tolled the statute of limitations.

 1. C.P.L.R. Art. 78 and C.P.L.R. § 1102(b) motions

  Petitioner asserts that all his numerous New York C.P.L.R. Article 78 and C.P.L.R. § 1102(b) motions toll the statute of limitations. In Hodge v. Greiner, the Second Circuit held that Article 78 proceedings to obtain documents helpful to the petitioner's motions were not "applications for State post-conviction or other collateral review" of his case under 28 U.S.C. § 2244(d)(2), thus they did not toll the statute of limitations established by AEDPA. Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001). Because the Section 1102(b)*fn1 and Article 78*fn2 motions filed by Petitioner did not challenge his conviction, they did not toll the statute of limitations under 28 U.S.C. § 2244(d)(2).

 2. Article 440.10 Motion

  On September 3, 1998, Petitioner filed a motion pursuant to New York Criminal Procedure Law Article 440.10 to vacate his conviction based on an improperly certified ballistics report presented to the Grand Jury and hearsay before the Grand Jury. The New York State Supreme Court denied the motion on February 10, 1999. Nearly two months later, on April 13, 1999, Petitioner sought leave to appeal the denial of his Article 440.10 motion. This leave to appeal was denied on July 1, 1999 by the Appellate Division First Department. Petitioner appealed, and the Court of Appeals dismissed the appeal of the denial of the leave to appeal Page 5 Petitioner's Article 440.10 motion on December 30, 1999. ("App. Support Mot. Dismiss Petition Writ of Habeas Corpus" Ex. C at 2.)

  Respondent does not contest that Petitioner's Article 440.10 motion tolled the statute of limitations starting on September 3, 1998 when it was first filed. An Article 440.10 motion is a motion to vacate judgment, thus it is an "application for State post-conviction or other collateral review with respect to the pertinent judgment" under 28 U.S.C. § 2244(d)(2). The period remained tolled until July 1, 1999 when the Appellate Division denied Petitioner's leave to appeal the denial of his Article 440 motion. See Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000), cert. denied 531 U.S. 1018 (2000) (tolling the AEDPA statute of limitations from date when Article 440.20 motion filed until petitioner was denied leave to appeal Appellate Division's denial of petitioner's Article 440.20 motion).

 3. Application for a writ of coram nobis

  Nor does Respondent contest that Petitioner's application for a writ of coram nobis for ineffective assistance of appellate counsel tolled the statute of limitations from when it was filed on May 10, 1999, until when it was denied by the First Department on January 6, 2000. Smith v. McGinnis, 208 F.3d 13, 16-17 (2d Cir. 2000) (tolling AEDPA statute of limitations from date application for a writ of coram nobis was filed until it was denied by the state court).

  Because the time the Article 440.10 claim was pending overlapped with the time during which the application for a writ of error coram nobis was pending, the statute of limitations was tolled from September 3, 1998 to January 6, 2000. (See Appendix.) As of January 6, 2000, 262 days elapsed from when Petitioner's judgment became final on December 15, 1997 and September 3, 1998, the date of the filing of the Article 440.10 motion. Page 6

 4. Motion that Petitioner be entitled "leave to renew appeals"

  On March 8, 2000, sixty-eight days after Petitioner's writ of coram nobis was finally denied, Petitioner filed a "notice of leave to renew appeals." ("App. Support Mot. Dismiss Petition Writ Habeas Corpus" Ex. F at 1.) The First Department denied this application on August 10, 2000. The First Department treated this pro se action as: (1) a motion to reargue his motion for leave to appeal the denial of his Article 440.10 motion, (2) a motion to reargue his appeal, and (3) a motion to reargue his application for a writ of coram nobis. ("App. Support Mot. Dismiss Petition Writ Habeas Corpus" Ex. F at 28.) Petitioner argues the each of these three motions tolls the statute of limitations.

  In order to determine whether a post-conviction motion tolls the statute of limitations established by AEDPA, it must be determined whether it is "properly filed" pursuant to 28 U.S.C. § 2244(d)(2). According to the Second Circuit, "properly filed" means "simply that an application for state post-conviction relief recognized as such under governing state procedures has been filed." Bennet v. Artuz, 199 F.3d 116, 123 (2d Cir. 1999). Thus, the issue for the Court is whether 1) a motion to reargue a motion for leave to appeal the denial of an Article 440.10 motion, 2) a motion to reargue an appeal, or 3) a motion to reargue an application for a writ of coram nobis is recognized under state procedures as state post-conviction relief.

  "Motions for reargument before the First Department are governed by N.Y. C.P.L. § 470.50(1) and N.Y. Comp. Codes R. & Regs., tit. 22, § 600.14(a). Because New York's procedural rules allow a motion for reargument, such a motion is `properly filed,' regardless of the merits (or lack thereof) of such a motion. . . ." Gomez v. Duncan, 2002 WL 1424584 at *3 (S.D.N.Y. July 1, 2002) (citing Artuz v. Bennet, 531 U.S. 4, 8-9 (2000)) (footnotes omitted); see Page 7 also Rodriguez v. New York, 2003 WL 289598 at *13 (S.D.N.Y. Feb. 11, 2003) (tolling time period during which petitioner sought reargument of denial of motion for extension of time to file a notice of appeal). The court in Gomez applied this logic to hold that the petitioner's reargument of a motion for leave to appeal the denial of an Article 440.10 motion and reargument of an application for a writ of coram nobis tolled the statute of limitations.*fn3 Gomez, 2002 WL 1424584 at *3-4. Here, the Appellate Division treated two of Petitioner's motions for reargument as if they were the same as the motions of the petitioner in Gomez. Thus they were "properly filed," though they were misnamed. Moreover, the First Department, did not dismiss Petitioner's motion as not properly filed, but rather denied it after "due deliberation." ("App. Support Mot. Dismiss Petition Writ Habeas Corpus" Ex. F at 28.) Accordingly, Petitioner's motion was properly filed and tolled the statute of limitations until it was denied on August 10, 2000.

  The statute of limitations did not toll when Petitioner filed his subsequent application on August 18, 2000, seeking leave to appeal to the Court of Appeals the August 10, 2000 denial of his motion for reargument. The New York State Court of Appeals dismissed Petitioner's application, "because the order sought to be appealed is not appealable under Criminal Procedure Law, section 450.90(1)" ("App. Supp. Mot. Dismiss Pet. Writ Habeas Corpus" Ex. G at 1 (footnote omitted).) Thus, because there were no "governing state procedures" for the August Page 8 18, 2000 application, the application was not "properly filed" and the statute of limitations was not tolled. See Bennet v. Artuz, 199 F.3d at 123.

  5. Reargument of application for writ of coram nobis

  Time was tolled, however, on August 28, 2000, when Petitioner filed a second motion seeking reargument of his application for a writ of coram nobis. The First Department denied this motion on its merits, treating the second motion for a reargument as properly filed, rather than dismissing it on procedural grounds. ("App. Support Mot. Dismiss Petition Writ Habeas Corpus" Ex. H at 14.) The time when a petitioner's application for a reargument of his application for a writ of coram nobis is pending tolls the statute of limitations established by AEDPA. Gomez. 2002 WL 1424584 at *4. Thus, the statute of limitations was tolled between August 28, 2000 and May 8, 2001, when the First Department denied the second motion seeking reargument. Accordingly, until May 8, 2001, the statute of limitations had run for 342 days total after Petitioner's conviction became final.

  6. Application to appeal denial of reargument of application for writ of coram nobis

  Petitioner sought permission to appeal the denial of his motion for reargument to the New York Court of Appeals on May 18, 2001. The New York State Court of Appeals dismissed the application because "the order sought to be appealed is not appealable under Criminal Procedure Law, section 450.90(1)" ("App. Support Mot. Dismiss Petition Writ Habeas Corpus" Ex. I at 3 (footnote omitted).) Because there are no "governing state procedures" for the appeal of a denial of a reargument of an application for a writ of coram nobis, the application for leave to appeal did not toll the statute of limitations. See Bennet v. Artuz, 199 F.3d at 123. Page 9

  7. State habeas corpus petition

  On October 17, 2000, while his second motion for a reargument of his application for a writ of coram nobis was pending, Petitioner filed a petition for a writ of habeas corpus in Franklin County, New York attacking his conviction. Lebron v. Herbert, 731 N.Y.S.2d 679 (App. Div. 2001) (denying habeas corpus relief because "petitioner could have raised these issues in the context of his direct appeal"). This petition was denied on December 13, 2000. The Respondent argues that a state habeas petition does not toll the AEDPA statute of limitations period. That argument conflicts with prevailing law in this Circuit, holding that a state habeas petition is a "properly filed application for State post-conviction or other collateral review" pursuant to 28 U.S.C. § 2244(d)(2). See Morales v. Sabourin, 2002 U.S. Dist. Lexis 7538 (S.D.N.Y. Apr. 30, 2002); Fernandez v. Artuz, 175 F. Supp.2d 682 (S.D.N.Y. 2001); McMoore v. Miller, 2002 WL 975305 at *3 (N.D.N.Y. Apr. 19, 2002).

  An application for post-conviction relief is "pending," pursuant to 28 U.S.C. § 2244(d)(2), during, "the time between a lower state court's decision and the filing of a notice of appeal to a higher state court," in addition to the time during which the court is considering the motions. Carey v. Saffold, 122 S.Ct. 2134, 2136 (2002). Here, Petitioner filed his petition for a writ of habeas corpus in Franklin County on October 17, 2000. The Appellate Division Third Department denied Petitioner's appeal of the denial of that petition on October 25, 2001. Lebron v. Herbert, 731 N.Y.S.2d 679 (App. Div. 2001). The Court of Appeals denied Petitioner's motion for leave to appeal the decision of the Appellate Division on February 7, 2002. Lebron v. Herbert, 97 N.Y.2d 609 (N.Y. 2002). Because a petition for a writ of habeas corpus filed in state Page 10 court tolls the AEDPA one-year statute of limitations period, and because state court post-conviction applications for collateral review are considered pending from the time they are filed and until they have been fully appealed, the statute of limitations was tolled from October 17, 2000 until February 7, 2002.

  On August 28, 2000, the statute of limitations was tolled again at 342 days when Petitioner filed a second motion seeking reargument of his application for a writ of coram nobis While that motion was pending, however Petitioner filed a petition for state habeas corpus relief, which caused the statute of limitations to continue to toll until February 7, 2002. Because the Petitioner signed this petition for federal habeas corpus relief on November 7, 2001, only 342 days of the statutory period had passed, and Petitioner filed within the one-year statute of limitations.

 8. Petitioner did not receive notice of entry of some decisions.

  Petitioner also claims that the statute of limitations should be tolled, because he did not receive a notice of entry for four of the motions that he filed. (Affirmation Opp'n Affirmation Supp. Mot. Dismiss at ¶ 13.) The Second Circuit has held that once no further appellate review is available, under state procedural law, the statute of limitations stops tolling when the order is filed, not when the Petitioner receives notice of entry. Geraci, 211 F.3d at 9. No further appeal was available after the decisions of any of the four motions cited by Petitioner. Accordingly, Petitioner's failure to receive notice of entry of the dismissal of those motions does not aid his computation. Furthermore, in view of the Court's determination that this petition of habeas corpus is timely, it is irrelevant whether a notice of entry was received for each of these four decisions. Page 11

  Conclusion

  For the forgoing reasons, Respondent's motion to dismiss is denied.

  Appendix

  Shaded area indicates when 1 year statute of limitations period under AEDPA tolled. Cites are to the Exhibits in Respondent's "Application in Support of Motion to Dismiss Petition for a Writ of Habeas Corpus."

 Date Action Number of days not tolled 12/15/1997 U.S. Supreme Court denies writ of 0 certiorari. Judgment becomes final.

 

9/3/1998 Petitioner files Art. 440 motion. (Ex. A at 262 Start tolling statute 1.)
2/10/1999 Art. 440 motion denied. (Ex. A at 55.)

 

4/13/1999 Petitioner seeks leave to appeal denial of Art. 440 motion. (Ex. B at 2.)
5/10/1999 Petitioner files application for writ of 262 coram nobis. (Ex. D at 3.)
 
7/1/1999 Appellate Division denies leave to appeal of 262 denial of Art. 440 motion. (Ex. B at 8.)
12/30/1999 Court of Appeals dismisses appeal of denial of leave to appeal denial of Art. 440 motion. (Ex. C at 2.) No notice of entry
 
1/6/2000 First Department denies application for 262 Stop tolling statute writ of coram nobis. (Ex. D at 72.) No notice of entry
3/8/2000 Petitioner files motion requesting "leave to 324 days renew appeals." (Ex. F at 1.) Start tolling statute
 
8/10/2000 First Department denies motion requesting 324 days "leave to renew appeals." (Ex. F at 28.) Stop tollinig statute No notice of entry
8/18/2000 Petitioner seeks leave to appeal denial of 331 days motion "requesting leave to renew appeals" to New York Court of Appeals (Ex. Gat 3.) Page 12

 

8/28/2000 Petitioner files motion seeking second 342 days reargument of application for writ of Start tolling statute coram nobis. (Ex. H at 1.)
9/20/2000 N.Y. Ct. of Appeals dismisses Petitioner's 342 days application for certificate of appeal for 8/1 0/2000 decision
 
10/17/2000 Petitioner files petition for a writ of habeas 342 days corpus in Franklin County, N.Y.
12/13/2000 Petition for writ of habeas corpus denied 342 days

 

5/8/2001 First Department denies motion seeking 342 days second reargument of writ of error coram nobis. (Ex. H at 14.) No notice of entry
5/18/2001 Petitioner seeks permission to appeal to 342 days N.Y. Ct. of Appeals the denial of his motion seeking reargument for his application for a writ of coram nobis. (Ex. I at 2.)
 
6/8/2001 N.Y. Ct. of Appeals dismisses application for certificate of appeal to appeal May 8, 2001 decision. (Ex. I at 3.)
10/25/2001 Appellate Division of the Third Dep't. 342 days affirms denial of habeas corpus petition
 
11/7/2001 Petitioner files petition for a writ of habeas 342 days corpus in S.D.N.Y. Petition filed Tolling stops
2/7/2002 Petitioner's motion for leave to appeal denial of petition for state habeas corpus relief denied


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