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FELTON v. MAZZUCA

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



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

AMENDED OPINION & ORDER

The Opinion and Order filed June 21, 2004, is ordered amended. The Clerk is directed to file this amended opinion.*fn1

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.*fn2 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 April 24, 1996, the enactment date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), petitioner's one-year statutory limitations period would begin to run, at the earliest, on April 25, 1996. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). 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. On February 22, 1995, the Bronx County Supreme Court denied petitioner's first § 440.10 motion. On May 16, 1995, the Appellate Division, First Department, granted petitioner leave to appeal the Supreme Court's February 22, 1995 decision. On May 1, 1997, the Appellate Division affirmed the denial of petitioner's first § 440.10 motion. People v. Felton, 239 A.D.2d 120, 657 N.Y.S.2d 34 (1st Dep't 1997). On December 2, 1997, the New York Court of Appeals denied petitioner's application for leave to appeal the Appellate Division's decision. People v. Felton, 91 N.Y.2d 872, 668 N.Y.S.2d 570 (N.Y. 1997) (Table).

  Meanwhile, on July 14, 1997, the Bronx County Supreme Court denied petitioner's second § 440.10 motion. On December 23, 1997, Justice Kupferman of the Appellate Division denied petitioner's application for leave to appeal the Bronx County Supreme Court's order denying petitioner's second § 440.10 motion.

  Petitioner's limitations period 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).*fn3

  Petitioner argues that the limitations period 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 the Bronx County Supreme Court's denial of 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 Hizbullahankhamon, the Second Circuit held that when the Appellate Division denies a coram nobis application, that application ceases to be pending, notwithstanding the applicant's outstanding request for leave to appeal to the Court of Appeals. That conclusion was compelled by the Second Circuit's prior ruling in Geraci v. Senkowski, 211 F.3d 6 (2d Cir. 2000), which based its decision on the fact that once the Appellate Division denies a coram nobis application, no appeal may be taken to the Court of Appeals under New York law. See id. at 9 (citing People v. Adams, 82 N.Y.2d 773, 603 N.Y.S.2d 991 (N.Y. 1993).*fn4 The Second Circuit explained that because the Appellate Division's denial of the coram nobis application meant that the "door of the New York Court of Appeals was closed and further appellate review was unavailable," Geraci's coram nobis application ceased to be pending as of the date of the Appellate Division's order. Geraci, 211 F.3d at 9.

  Similarly, once Justice Kupferman denied petitioner leave to appeal the Bronx County Supreme Court's denial of his second § 440.10 motion, the "door of the New York Court of Appeals was closed and further appellate review was unavailable." Id. The reason for this is that once the Appellate Division denies leave to appeal the denial of a § 440.10 motion, pursuant to C.P.L. § 460.15, New York law does not provide for an application for leave to appeal to the Court of Appeals, pursuant to C.P.L. § 460.20. See Ramos v. Walker, 88 F. Supp. 2d 233, 234-36, n. 3 & 9 (S.D.N.Y. 2000) (citing People v. Grossmann, 87 N.Y.2d 1003, 642 N.Y.S.2d 856 (N.Y. 1996), & People v. Corso, 85 N.Y.2d 883, 626 N.Y.S.2d 753 (N.Y. 1995).*fn5 Because no further appellate review was available under New York law, following Justice Kupferman's December 23, 1997 decision, petitioner's second § 440.10 motion ceased to be pending as of that date; the AEDPA limitations period began to run as of December 23, 1997.

  From December 23, 1997, until December 2, 1998, the limitations period was running, because no application for State post-conviction or collateral relief was pending (344 days).*fn6 The limitations period was then tolled from December 2, 1998, until June 29, 1999 (during the pendency of petitioner's first application for coram nobis). The limitations period then began to run, until July 21, 1999 (22 days). Thereafter, the limitations period was tolled, until March 16, 2000 (during the pendency of petitioner's second application for coram nobis). The limitations period then began to run, until April 2, 2000 (17 days). Thereafter, the limitations period was tolled, until September 21, 2000 (during the pendency of petitioner's third application for coram nobis).*fn7 The limitations period then began to run, until October 16, 2000 (25 days). Thereafter, the limitations period was tolled, until May 8, 2001 (during the pendency of petitioner's fourth, and final, application for coram nobis). The limitations period then began to run, 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. 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). In this case, pro se petitioner signed, and swore to, the petition on May 25, 2001. 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) ...


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