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FELTON v. MAZZUCA

June 21, 2004.

JOSE FELTON, Petitioner,
v.
WILLIAM MAZZUCA, Respondent.



The opinion of the court was delivered by: KIMBA WOOD, District Judge

OPINION & ORDER

I. Background

This petition for writ of habeas corpus comes to the Court on remand for reconsideration by the Second Circuit. In an order dated May 21, 2002, this Court adopted a Report and Recommendation of Magistrate Judge Ronald L. Ellis, and dismissed the petition as time-barred under 28 U.S.C. § 2244(d). This decision was based on the Court's conclusion that 643 days of unexcludable time had passed from the date on which petitioner's state court conviction became final until the date on which he filed the present petition. This period of time exceeded the one year statute of limitations established by 28 U.S.C. § 2244(d). Following the submission of additional evidence by petitioner, this Court issued a second order, dated May 30, 2002, that assumed arguendo that petitioner was entitled to exclude 260 additional days from the aforementioned period. Because the total number of days still exceeded 365 (643 - 260 = 383), the Court concluded that petitioner's newly-submitted evidence did not alter the outcome of the May 21 Order. Petitioner appealed the Court's decision to the United States Court of Appeals for the Second Circuit. The Second Circuit remanded the matter for reconsideration on December 19, 2002.*fn1 Specifically, the Second Circuit stated that this Court should reconsider whether the two additional periods of time identified by petitioner are subject to statutory tolling. The Second Circuit also ordered this Court to consider whether some, or all, of the time during which petitioner's first habeas petition was pending before this Court should be equitably tolled. Finally, the Second Circuit ordered this Court to consider whether petitioner's habeas petition should be deemed to have been filed prior to the time this Court previously considered it filed.

  II. Discussion

  A. Statutory Tolling

  Petitioner's state court conviction became final on May 30, 1985. Because this date is prior to the enactment date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), petitioner's statutory one-year period of limitation would begin to run, at the earliest, on April 25, 1996. However, as of that date, petitioner's first C.P.L. § 440.10 motion was pending in state court. During the time that this first § 440.10 motion was pending, petitioner filed a second § 440.10 motion. Petitioner's first § 440.10 motion was denied by the Appellate Division on May 1, 1997, and his motion for leave to appeal that decision was denied by the New York Court of Appeals on December 21, 1997. On December 23, 1997, the Appellate Division denied petitioner's application for leave to appeal the Bronx County Supreme Court's order denying his second § 440.10 motion.

  Petitioner's period of limitation began to run, therefore, on December 23, 1997, which is the first date following the enactment of AEDPA on which no "properly filed application for State post-conviction or other collateral review" was pending. 28 U.S.C. § 2244(d)(2).*fn2 Petitioner argues that the period of limitation should have begun to run only on March 4, 1998, which was the date on which the New York Court of Appeals denied petitioner leave to appeal the Appellate Division's denial of leave to appeal his second § 440.10 motion. As noted by the Second Circuit mandate in this case, petitioner's argument appears to be foreclosed by Hizbullahankhamon v. Walker, 255 F.3d 65, 71-72 (2d Cir. 2001), in which the Second Circuit held that the period between the Appellate Division's denial of a coram nobis application, and the Court of Appeals' denial of petitioner's application for leave to appeal the Appellate Division's denial, is not statutorily tolled. The Hizbullahankhamon court reasoned that the coram nobis application, once denied, ceased to be "pending" within the meaning of 28 U.S.C. § 2244(d)(2), and therefore ceased to toll the period of limitation. The court also noted that New York State law does not recognize an application for leave to appeal the denial of a coram nobis petition, and therefore the leave application itself was not "properly filed" within the meaning of § 2244(d)(2).

  The Second Circuit's reasoning in Hizbullahankhamon also applies to applications for leave to appeal to the Court of Appeals an order by the Appellate Division denying leaving to appeal a denial of a § 440.10 motion. Given that petitioner was denied leave to appeal the Supreme Court's denial of the motion, not only was petitioner's second § 440.10 motion no longer "pending" during the period in which he was seeking leave to appeal to the Court of Appeals, but it was also not "properly filed." See Ramos v. Walker, 88 F. Supp.2d 233, 235-36 (S.D.N.Y. 2000) (stating that there is no provision under New York State law to appeal to the Court of Appeals an Appellate Division's decision denying leave to appeal an order denying a § 440.10 motion). Thus, the Court concludes that the time began to run in December 23, 1997.

  Petitioner had no pending application for State post-conviction or collateral relief between December 23, 1997 and December 2, 1998, and thus the period of limitation was running during this time (344 days).*fn3 On December 2, 1998, petitioner filed his first application for coram nobis. This application was ultimately denied on June 29, 1999, and the period of limitation was therefore tolled pursuant to the statute during this time. The period of limitation again began to run following the June 29 denial, and it continued to run until petitioner filed his second application for coram nobis on July 21, 1999 (22 days). The period of limitation was tolled from July 21, 1999, until the second application for coram nobis was denied, which was on March 16, 2000. From March 16, 2000, until April 2, 2000, the period of limitation was again running (17 days). On April 2, 2000, petitioner filed his third application for coram nobis; this application was denied by the Appellate Division on September 21, 2000. It is the period during which this, third application was pending that the Court did not take into consideration in its May 21, 2002 order, but which the Court assumed, arguendo, was tolled in its May 30, 2002 order. Upon reviewing the record on appeal, the Court concludes that the period of limitation was tolled during the pendency of this third application for coram nobis. From the date the third application was denied, September 21, 2000, until October 16, 2000, the period of limitation was again running (25 days). On October 16, 2000, petitioner filed his fourth, and final, application for coram nobis. This application was denied by the Appellate Division on May 8, 2001. The period of limitation began to run again as of May 8, 2001, and an until petitioner filed this petition.

  In this Court's prior orders, the Court considered this habeas petition as having been filed on July 10, 2001, which was the date on which the petition was docketed. Having reviewed the record, the Court concludes that this was an error. According to a stamp on the petition, the Pro Se Office of the Southern District of New York received the petition on June 1, 2001. Furthermore, the petition was signed, and sworn to, by petitioner on May 25, 2001. A pro se prisoner's papers are considered filed as of the date he hands the papers to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). Absent evidence to the contrary, the Court assumes that petitioner handed his petition to prison authorities for mailing on the date he signed the petition. See, e.g., Rhodes v. Senkowski, 82 F. Supp.2d 160, 165 (S.D.N.Y. 2000) (collecting cases). Cf. Cromwell v. Keane, No. 99-2156, 27 Fed. Appx. 13, 14, 2001 WL 1168546, *1 (2d Cir. Sept. 28, 2001) (citing Rhodes). The Court thus treats the petition as having been filed on May 25, 2001; thus only 17 days ran between the denial of petitioner's final application for coram nobis and the filing of this petition.

  Taking into consideration all of the time subject to statutory tolling, 425 days elapsed by the date when the present petition was filed. (344 22 17 25 17 = 425). Because this exceeds the one year period of limitation established by § 2244(d)(2), petitioner's petition would be untimely unless some period of the time not tolled pursuant to the statute could be tolled according to the principles of equity.

  B. Equitable Tolling

  1. Background

  The Second Circuit mandate orders this Court to consider whether some, or all, of the time during which petitioner's initial petition was pending in this Court should be equitably tolled. Equitable tolling is appropriate if "extraordinary circumstances prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000). In order to be eligible for equitable tolling, the petitioner "must have acted with ...


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