The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
On March 8, 2003, the Court denied as untimely the petition of
Fred Hutzenlaub ("Hutzenlaub" or "Petitioner") for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See Hutzenlaub v.
United States, No. 02-CV-0894 (E.D.N.Y. Mar. 8, 2003). The Court
also declined to grant the Petitioner a certificate of
appealability. Hutzenlaub's petition was denied after the Court
held a hearing on February 27, 2003 to determine whether the
petition was timely and whether equitable tolling should apply to
Presently before the Court is the Petitioner's motion for
re-argument made "pursuant to Rule 59 or 60 of the Federal Rules
of Appeal." Julia Pamela Heit, Esq., Ltr. to Court dated Mar. 24,
2003. In his motion, Hutzenlaub argues that his petition should
be considered timely and that he is actually innocent of the
underlying state convictions. In general, the Petitioner presents
the same arguments of timeliness and equitable tolling that were
the subject of the above-referenced hearing. He also includes a
new argument that the "prisoner mailbox rule" renders his
petition timely because he believed that the mailing of his
affidavit for the habeas petition to his attorney Julia Pamela
Heit, Esq., tolled the limitations period for filing a federal
In a supplemental motion dated April 2, 2004, the Petitioner
adds that he was denied his Sixth Amendment right to counsel and
to confront witnesses, in that trial counsel was precluded from
conducting a meaningful cross-examination of witness Lloyd
Margolis, when Margolis invoked his Fifth Amendment privilege as
to his prior bad acts. The Petitioner also claims that trial
counsel was ineffective for failing to present his co-defendant's
plea allocution which allegedly exculpated the Petitioner.
The Petitioner argues that, notwithstanding his untimeliness,
the Court's denial of these Sixth Amendment claims conflicts with
the United States Supreme Court's March 8, 2004 decision in
Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, ___ L. Ed.2d
___ (2004). He contends that the Crawford holding
retroactively applies to his case. The Petitioner also requests
that this Court grant him a certificate of appealability.
As an initial matter, the Petitioner cannot re-start the
limitations period under 28 U.S.C. § 2255(3) or claim that
Crawford applies retroactively to his case. The Court properly
dismissed his habeas petition as untimely on March 8, 2003 and
that decision was rendered exactly one year before the new rule
in Crawford was announced. In addition, his convictions became
"final" for federal habeas purposes and retroactivity analysis on
April 20, 2000, which was ninety days after the New York Court of
Appeals denied Hutzenlaub leave to appeal.
Moreover, the Court's holding in Crawford offers no
retroactive protection to the Petitioner. See Beard v. Banks,
___ U.S. ___, 124 S.Ct. 2504, 2510, ___ L. Ed.2d ___ (2004)
(finding that a state habeas petitioner's convictions become
"final" for purposes of Teague's non-retroactivity rule when
the United States Supreme Court denies certiorari review or the
period elapses in which to seek such review of the state
prisoner's direct appeal); Teague v. Lane, 489 U.S. 288, 310,
109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (finding that "new
constitutional rules of criminal procedure will not be applicable
to those cases which have become final before the new rules are
announced"). Neither of the two Teague exceptions apply and the
Petitioner cannot prevail on his claim that his Sixth Amendment
rights are in conflict with the holding in Crawford.
As to whether this Court erred in dismissing Hutzenlaub's
petition as time-barred, the Court must deny the instant motion
to reconsider "unless the moving party can point to controlling
decisions or data that the court overlooked matters, in other
words, that might reasonably be expected to alter the conclusion
reached by the court." Shrader v. Transportation, Inc.,
70 F.3d 255, 257 (2d Cir. 1995).
In this case, the Petitioner does not provide the Court with
any matter that the Court overlooked in its decision and instead,
he merely re-argues those issues raised at the hearing. The
Petitioner's argument that the "prisoner mailbox rule" renders
his petition timely because he believed that the limitations
period was tolled upon his mailing his affidavit in support of
his habeas petition to his attorney, is without merit. Further,
the Court notes that, at the February 27, 2003 hearing, the
Petitioner was "unable to show that he acted with reasonable
diligence" in timely filing his habeas petition with this Court.
Hutzenlaub, slip op. at 7. Also, his attorney's proffered
excuses for her delay do not provide grounds for equitable
tolling in the instant case. Id. at 9; see also Valverde v.
Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (finding that the
Court may "equitably toll" the AEDPA's one-year period statute of
limitations only when "rare or extraordinary circumstances"
prevent the prisoner from filing timely and upon a showing that
the petitioner acted with reasonable diligence throughout the
period he desires to toll).
Accordingly, the Court concludes that Hutzenlaub's petition was
properly dismissed as time-barred. Therefore, the Court denies
the Petitioner's motion for re-argument and his application for a
certificate of appealability.