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United States District Court, S.D. New York

June 28, 2004.

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

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


On February 26, 2004, this Court denied the motion of Thomas Sanders ("Respondent") to dismiss the petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by Elvin Lebron ("Petitioner"). Lebron v. Sanders, No. 02cv6327, 2004 WL 369141 (S.D.N.Y. Feb. 27, 2004). The Court held that the petition was not time-barred under the Anti-Terrorism Effective Death Penalty Act (AEDPA), because Petitioner's filings for state post-conviction relief had effectively tolled the statute of limitations. Respondent has brought the instant motion requesting the Court to reconsider its holding that Petitioner's state habeas corpus petition tolled the statute of limitations established by AEDPA.


  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 gun possession in the third degree. 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 Court of the United States on December 15, 1997. Lebron v. New York, 522 U.S. 1032, 118 S.Ct. 635 (1997) (mem.). In the decision of February 2004, the Court held that the following subsequent motions attacking Petitioner's conviction tolled the statute of limitations: an Article 440 motion filed September 3, 1998; an application for a writ of coram nobis filed May 10, 1999; a motion requesting "leave to renew appeals" filed May 8, 2000; a motion seeking reargument for the application of a writ of coram nobis filed August 28, 2000; and a state habeas corpus petition filed October 17, 2000. The only motion in dispute in this motion of reconsideration is Petitioner's application for state habeas corpus relief filed October 17, 2000.


  A. Respondent's motion is timely

  In his opposition brief, Petitioner contends that Respondent's motion for reconsideration is time-barred. Local Civil Rule 6.3 states in pertinent part, "A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion." Local Civ. R. 6.3. Here, the Court docketed its revised opinion and order on February 27, 2004. Respondent filed his motion for reconsideration eleven days later on March 9, 2004. According to Fed.R.Civ.P. 6(a), which applies to local civil rules, "When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Fed.R.Civ.P. 6(a). Thus, Saturday, February 28, 2004 and Sunday, February 29, 2004 are excluded from the computation, and Respondent filed his motion nine days after the Court entered its order. Respondent's motion for reconsideration is not time barred.

  B. Standard of review for Motion for Reconsideration

  Under the doctrine of the law of the case, the "principle of disciplined self-consistency" supports the reluctance of courts to reconsider their prior opinions and judgments. 18B Charles Alan Wright, et al., Federal Practice and Procedure § 4478 (2d ed. 2002). This reluctance to reconsider decisions, however, is discretionary upon the court; it is not a limit on the court's power. Id.

  There is a split within lower court opinions in this Circuit on the issue of the whether state habeas proceedings toll the statute of limitations established by AEDPA. Compare Russell v. Artuz, No. 00cv3173, 2001 U.S. Dist. LEXIS 11583 at *8-9 (S.D.N.Y. Aug. 3, 2001) and Forman v. Artuz, 211 F. Supp.2d 415, 420-21 (S.D.N.Y. 2000) (holding state habeas corpus petition does not toll the AEDPA statute of limitations period) with Morales v. Sabourin, No. 00cv8873, 2002 U.S. Dist. LEXIS 7538, at *26-27 (S.D.N.Y. Apr. 30, 2002) and McMoore v. Miller, No. 98cv1915, 2002 WL 975305, at * 3 (N.D.N.Y. Apr. 19, 2002) and Fernandez v. Artuz, 175 F. Supp.2d 682 (S.D.N.Y. 2001) (holding state habeas corpus petition tolls the AEDPA statute of limitations period). Accordingly, the Court will use this opportunity to review its reasoning. C. A New York State habeas corpus petition tolls the statute of limitations

  AEDPA establishes a one-year statute of limitations for petitioners in state custody petitioning for federal habeas corpus relief. The 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) (emphasis added). Accordingly, two inquiries must be made: 1) was Petitioner's state habeas corpus petition "properly filed" within the meaning of AEDPA? and 2) is a New York state habeas corpus petition an "application for state post-conviction or other collateral review"?

  In Artuz v. Bennet, 531 U.S. 4, 121 S.Ct. 361 (2000), the Supreme Court reviewed a Second Circuit decision to clarify the meaning of "properly filed" in the context of 28 U.S.C. § 2244(d)(2). The Supreme Court held:

[A]n application is "properly filed" when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . But in common usage, the question whether an application has been "properly filed" is quite separate from the question whether the claims contained in the application are mertorious and free of procedural bar.
Artuz, 531 U.S. at 8-9, 121 S.Ct. at 364 (footnotes omitted; emphasis in original). In Bennet, the state court had denied petitioner's Article 440 motion because, "one of the claims had already been decided on direct review and the other claim `had a sufficient record basis for direct review.'" Bennet v. Artuz, 199 F.3d 116, 121 (2d Cir. 1999) (quoting government's brief), aff'd, 531 U.S. 4 (2000). That is, the petitioner's motion was denied because the issues raised were not collateral to the appellate record but were issues which either were, or could have been, decided on appellate review of the record. Thus, in Bennet, even though petitioner's application for relief raised issues inappropriate for Article 440 relief, the Second Circuit held — and the U.S. Supreme Court affirmed — that it was "properly filed." Id. at 123.

  In the case at hand, the Appellate Division Third Department cited two reasons for denying Petitioner's appeal of the denial of his petition for a writ of habeas corpus. First, Petitioner could have raised the claims he asserted in his state habeas petition on direct appeal or in his Article 440 motions. Second, the claims raised would not entitle him to immediate release. Respondent argues that habeas corpus is not "properly utilized to attack a judgment of conviction," because habeas corpus relief is now available in New York if the appropriate remedy is immediate release from custody. (Mem. Law Supp. Mot. Reargument and/or Recons. at 3 (citing People ex rel. Kaplan v. Commissioner of Correction, 60 N.Y.2d 648 (1983)).) Article 440 is the appropriate proceeding if the petitioner is seeking a new trial or new appeal. Thus, here, as in Bennet, the state court denied Petitioner relief because he should have addressed his claims in a different state proceeding.

  Although his claims were "not free of procedural bar," the Appellate Division did not state that Petitioner's application for state habeas corpus relief was not "in compliance with the applicable laws and rules governing filings." See Artuz, 531 U.S. at 8-9, 121 S.Ct. at 364. Petitioner filed his petition for habeas corpus relief in the proper court, i.e., Franklin County Supreme Court where he was incarcerated. See N.Y.C.P.L.R. § 7001 (McKinney 1998). Inquiry into the first question, i.e., whether a claim is "properly filed" is related to the second question, i.e., whether the relief available constitutes "post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2). Respondent asserts that because Article 440 has replaced habeas corpus as post-conviction remedy in New York, habeas corpus review is now "utilized to challenge certain limited issues concerning parole; denial or imposition of excessive bail; and extradition. (Mem. Law Supp. Mot. Reargument and/or Recons. at 3 (citations omitted).) However, when analyzing the phrase "an application for State post-conviction or other collateral review," (28 U.S.C. § 2244(d)(2)) the Supreme Court said, "Congress may have refrained from exclusive reliance on the term `post-conviction' so as to leave no doubt that the tolling provision applies to all types of state collateral review available after a conviction and not just to those denominated `post-conviction' in the parlance of a particular jurisdiction." Duncan v. Walker, 533 U.S. 167, 177, 121 S.Ct. 2120, 2127 (2001).

  Respondent also asserts that a proceeding is not properly filed if there is no possibility of being granted "post-conviction or other collateral review" as a result of the filing. (Mem. Law Supp. Mot. Reargument and/or Recons. at 4.) A review of the history of the interplay between Article 440 and New York habeas corpus, though, reveals that habeas corpus, though rarely granted, is still available to challenge convictions. On September 1, 1971, N.Y. Crim. Proc. Law § 440 went into effect. "As Judge Denzer (the principal C.P.L. draftsman) noted in his original Practice Commentary, the motions codified in this article — i.e., to vacate judgment (C.P.L. § 440.10) and to set aside sentence (C.P.L. § 440.20) — are designed collectively to embrace all extant non-appellate post-judgment remedies and motions to challenge the validity of a judgment of conviction." N.Y. Crim. Proc. Law § 440.10, Practice Commentaries (McKinney 1994). Accordingly, Respondent asserts, "the current practice in New York state is that a state petition for a writ of habeas corpus is an inappropriate vehicle by which to attack a criminal court conviction." (Mem. Law Supp. Mot. Reargument and/or Recons. at 4.)

  The Court's review of the applicable cases leads to a different result. Shortly before the enactment of Article 440, the New York Court of Appeals held the use of state habeas corpus was proper "to test a claim that the relator has been imprisoned after having been deprived of a fundamental constitutional or statutory right in a criminal prosecution." People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 899 (1966). After the enactment of Article 440, People ex rel. Keitt has been repeatedly cited as authority for the proposition that habeas corpus may be necessary as a departure from ordinary means of relief because of reasons of "practicality and necessity," even though the courts relying on People ex rel. Keitt rarely find that the case before it is an instance of "practicality and necessity." See, e.g., People ex rel. Barnes v. Fischer, 756 N.Y.S.2d 449, 450 (App. Div. 2003); People ex rel. Minter v. Eisenschmidt, 741 N.Y.S.2d 781, 781 (App. Div. 2002); People ex rel. Pearson v. Garvin, 622 N.Y.S.2d 464, 464 (App. Div. 1995); People ex rel. Lobenthal for and on Behalf of Goldenberg v. Koehler, 516 N.Y.S.2d 928, 930 (App. Div. 1987); Roberts v. County Court of Wyoming County, 333 N.Y.S.2d 882, 888 (App. Div. 1972). "Rarely," however, does not mean "never." For example, in People ex rel. Culhane v. Sullivan, the Appellate Division Second Department cited People ex rel. Keitt, and found that habeas corpus was the appropriate proceeding to address whether the indictment in which petitioner had been charged alleged a cognizable crime. People ex rel. Culhane v. Sullivan, 531 N.Y.S.2d 287, 288 (App. Div.2d Dep't 1988) (upholding dismissal of habeas corpus proceeding after deciding that misdemeanor escape can be the underlying crime for a felony murder conviction). New York state habeas corpus was also found to be the appropriate remedy when a change in Constitutional law may have made the petitioner's conviction invalid. People ex rel. Rodriguez v. Harris, 443 N.Y.S.2d 784, 785 (App. Div.2d Dep't 1981) (denying the petition because petitioner's claim could not be granted retroactively).

  Habeas corpus is also the proper procedure to raise a claim of double jeopardy.*fn1 People ex rel. Pendleton v. Smith, 388 N.Y.S.2d 426, 429 (App. Div. 4th Dep't 1976); 1 N.Y. Civil Practice: CPLR P § 7002.04 (Bender 2004) ("A defendant placed in double jeopardy by a conviction may raise the issue on appeal. However, if he is in custody, he may raise the issue more expeditiously by petitioning for a writ of habeas corpus."); but see, People ex rel. Barnes v. Smith, 417 N.Y.S.2d 539 (App. Div. 4th Dep't 1979) (noting that People ex rel. Pendleton presented an unusual fact pattern in that a Supreme Court ruling nullifying the petitioner's conviction on double jeopardy grounds was handed down while Petitioner's appeal was pending).

  Additionally, supreme courts in New York retain jurisdiction to hear habeas corpus cases. People ex rel. Anderson v. Warden of New York City Correctional Institution for Men, 325 N.Y.S.2d 829, 833 (Sup.Ct. 1971) (reviewing a series of habeas corpus cases and concluding, "in all these cases, the court in the county of imprisonment had habeas corpus jurisdiction, but properly declined to exercise it."); see also, 2-29 Weinstein, Korn & Miller, C.P.L.R. Manual § 29.01 ("It has been held that habeas corpus relief should be declined, even though technically available, when a remedy lies under Article 440.").

  The Second Circuit has not addressed the issue of whether the filing of a rarely granted application for relief tolls the statute of limitations. There are two cases from other circuits, however, that are sufficiently analogous to the case at hand to provide guidance. In Blair v. Crawford, 275 F.3d 1156 (9th Cir. 2002), the petitioner filed for state habeas corpus relief in Nevada State Supreme Court. The Nevada Supreme Court dismissed the petition, because according to Nevada's state habeas corpus statute, the petition should have been brought in Nevada State District Court. Blair, 275 F.3d at 1157. The Ninth Circuit held that the application filed in Nevada State Supreme Court was properly filed and tolled the AEDPA statute of limitations, because the State Supreme Court still had jurisdiction to hear state habeas petitions under the Nevada Constitution. Id. at 1158. The Ninth Circuit found that it did not matter that the Nevada Supreme Court had never granted a writ of habeas corpus since the statute had been enacted. Id. at 1159. Here, New York state courts rarely grant habeas corpus relief or consider the petitions, however, like the Supreme Court of Nevada, they have retained their jurisdiction.

  The Fifth Circuit has held that when state courts "have provided . . . petitioners with the hope that a motion . . . may be successful" by granting exceptions to statutory prohibitions, the AEDPA statute of limitations is tolled. Emerson v. Johnson, 243 F.3d 931, 935 (5th Cir. 2001). Similarly, New York courts have given habeas corpus petitioners hope by occasionally reviewing their petitions. Conclusion

  Though New York state habeas corpus applications are rarely granted, they still constitute applications for "post-conviction or other collateral review" pursuant to 28 U.S.C.A. § 2244(d)(2). As there is no showing that Petitioner's application for state habeas corpus was improperly filed pursuant to Artuz v. Bennet, Petitioner's application for federal habeas corpus relief is not time-barred under AEDPA. The motion for reconsideration is denied.

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