The opinion of the court was delivered by: NINA GERSHON, District Judge
Petitioner Ryan Cambrelen, appearing pro se, moves, pursuant to
28 U.S.C. § 2255, for a writ of habeas corpus. On October 30, 2003 the
court ordered petitioner to show cause why his motion should not be
dismissed as time-barred. Petitioner responded on January 9, 2004.
Respondent filed its opposition on February 19, 2004.
As set forth in the court's order to show cause, petitioner's
conviction became final on October 1, 2001, but petitioner did not file
his Section 2255 motion until March 16, 2003, more than one year after
his date of final conviction. In his response, petitioner asserts that he
is entitled to equitable tolling because he solicited advice from the
University of Kansas School of Law Defender Project which declined
representation of petitioner on September 6, 2002, leaving him less than
one month to file his motion. Petitioner also asserts that the Defender
Project failed to return his court papers to him in a timely manner.
Equitable tolling is available only in "rare and exceptional
circumstance[s]." Smith v. McGinnis, 208, F.3d 390, 391-92 (2d Cir.
2000). To qualify for equitable tolling, petitioner must show that the
circumstances resulting in his untimely filing were beyond his control
and that he acted
with reasonable diligence throughout the period he seeks to toll.
Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). During the time
that petitioner's case was under consideration by the Defender Project,
he was not barred from making an independent determination of the merits
of his case. Petitioner was repeatedly advised of the time limitation by
the Defender Project, and his submissions make it clear that petitioner
was aware of the time-sensitive nature of the petition. For these reasons
and the reasons set forth in Villanueva v. United States, 346 F.3d 55 (2d
Cir 2003)(finding no detrimental reliance from the alleged delay of the
Defender Project in informing petitioner of its decision not to represent
him) and in Padilla v. United States, 2002 WL 3157173 3 (S.D.N.Y. 2002),
petitioner's first ground for equitable tolling is rejected.
Petitioner's request for equitable tolling on the ground that he did
not have his court papers is undermined by his statements in his
correspondence to the Defender Project that he had made copies of the
material requested by them. However, even if petitioner lacked the needed
documents, the occurrence would not trigger equitable tolling because
petitioner has not demonstrated that he made any attempt to file a
petition without them, or that he filed his petition promptly after
receiving them. See Padilla 2002 WL 31571733 at *4.
For these reasons, petitioner's motion is denied, and his motion for
habeas corpus relief under 28 U.S.C. § 2255 is dismissed as time-barred.
As petitioner has failed to make a substantial showing of the denial of a
constitutional right, a certificate of appealability is denied.
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