United States District Court, S.D. New York
September 14, 2004.
RAFAEL RODRIGUEZ, Petitioner,
FLOYD BENNETT, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT & RECOMMENDATION
TO THE HONORABLE MICHAEL B. MUKASEY, UNITED STATES DISTRICT
Before the Court is Rafael Rodriguez's ("Rodriguez") petition
for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254.
On August 20, 2001, the petition was dismissed as untimely under
28 U.S.C. § 2244(d). Rodriguez appealed from that decision to the
United States Court of Appeals for the Second Circuit. In an
opinion dated September 11, 2002, the Second Circuit vacated the
judgment of dismissal and remanded the case for consideration of
whether Rodriguez is entitled to equitable tolling for any of the
claims raised in his habeas corpus petition. Your Honor referred
the case to the undersigned for a report and recommendation on
this question; it is addressed below.
Rodriguez was convicted in October 1992 for murder in the
second degree and attempted murder in the second degree, after a
trial by jury in New York State Supreme Court, New York County.
The conviction was affirmed by the New York State Supreme Court,
Appellate Division, First Department, on April 11, 1996. See
People v. Rodriguez, 226 A.D.2d 177, 641 N.Y.S.2d 532 (App. Div. 1st Dep't 1996). Rodriguez's
application for leave to appeal to the New York Court of Appeals
was denied on May 28, 1996. See People v. Rodriguez,
88 N.Y.2d 884, 645 N.Y.S.2d 459 (1996).
In an application dated April 14, 1997, Rodriguez petitioned
this court for a writ of habeas corpus ("first petition"),
pursuant to 28 U.S.C. § 2254, alleging that: (1) he was denied a
fair trial because of the prosecutor's comments on summation, (2)
he was deprived of the effective assistance of trial counsel, and
(3) he was denied a fair trial because one of the prosecution's
witnesses committed perjury.
After the respondent moved to dismiss Rodriguez's first
petition on the ground that it contained unexhausted claims,
Rodriguez sought to withdraw the petition without prejudice so
that he might exhaust his state remedies. Petitioner also asked
the court not to dismiss the petition if the dismissal would
result in a time bar to filing a new petition. Thereafter,
Rodriguez retracted his withdrawal request because of a concern
that he would be unable to commence state exhaustion proceedings
within the time remaining in the relevant limitations period, and
asked the court to rule on the merits of the petition.*fn1
On May 21, 1999, Rodriguez made another request to withdraw his
petition to exhaust state remedies. On June 21, 1999,
petitioner's request to withdraw his petition without prejudice
to refiling after exhaustion was granted.
On April 27, 1999, while his first petition was pending in
federal court, petitioner made an application for a writ of error
coram nobis to the Appellate Division, First Department, contending, inter alia, that his appellate counsel had been
ineffective for failing to raise a claim that certain
identification testimony should have been suppressed as the fruit
of an illegal arrest. On September 16, 1999, the Appellate
Division denied Rodriguez's application for a writ of error
Petitioner submitted a new petition for a writ of habeas corpus
("second petition") on November 22, 1999, alleging, as in his
first petition, that he was denied a fair trial because of
prosecutorial misconduct during summation, and adding the claims
that: (a) he was denied the effective assistance of appellate
counsel, and (b) the trial court had erred in failing to suppress
identification testimony obtained as the result of an unlawful
search and arrest.
The respondent moved to dismiss the second petition as
time-barred pursuant to 28 U.S.C. § 2244(d). However, the
petition initially was found to be timely. See Rodriguez v.
Bennett, No. 00 Civ. 401, 2001 WL 682446, at *3 (S.D.N.Y. June
18, 2001). Under 28 U.S.C. § 2244(d)(1)(A), a petitioner must
file a habeas corpus petition within one year from the date the
judgment of conviction becomes final. Rodriguez's conviction had
become final on August 26, 1996, the date on which his time to
seek certiorari from the United States Supreme Court
expired.*fn2 Thus, Rodriguez's one-year limitations period
began to run on August 26, 1996.
In Walker v. Artuz, 208 F.3d 357 (2d Cir. 2000), the Second
Circuit had held that the tolling provision of the habeas corpus
statute, 28 U.S.C. § 2244(d)(2), called for tolling during the
pendency of a prior federal collateral attack. Therefore, it
appeared that Rodriguez's one-year limitations period was tolled by the filing, on April 14, 1997,
of his first petition. Moreover, pursuant to
28 U.S.C. § 2244(d)(2), the limitations period continued to be tolled during
the pendency in state court of petitioner's application for a
writ of error coram nobis. Consequently, when the limitations
period began to run again, on September 16, 1999, the day
Rodriguez's coram nobis application was denied, 133 days of the
one-year limitations period remained. As of the filing of the
second petition, on November 22, 1999, 65 days of the one-year
period remained. Accordingly, the petition was found to be
However, on June 18, 2001, the United States Supreme Court
issued its decision in Duncan v. Walker, 533 U.S. 167,
121 S. Ct. 2120 (2001), reversing Walker v. Artuz and holding that the
tolling mandated by 28 U.S.C. § 2244(d)(2) applies only to state
and not to federal petitions for collateral relief.*fn3
Therefore, under the new law, Rodriguez's limitations period had
not been tolled during the pendency of his first petition and,
indeed, had expired on August 26, 1997, more than a year before
he made his coram nobis application, and more than two years
before he filed his second petition. Accordingly, Rodriguez's
second petition was dismissed as untimely. See Rodriguez v.
Bennett, No. 00 Civ. 401, 2001 WL 940569, at *2 (S.D.N.Y. Aug.
Rodriguez appealed from that decision to the Second Circuit. On
September 11, 2002, the Second Circuit vacated the judgment of
dismissal and ordered this court to consider whether, under the circumstances, the limitations period should be
equitably tolled during the pendency of Rodriguez's first
petition. See Rodriguez v. Bennett, 303 F.3d 435, 439-40 (2d
Cir. 2002). Thereafter, the matter was referred to the
undersigned for a report and recommendation on this issue.
The Second Circuit has ordered this court to consider whether,
and to what extent, Rodriguez should benefit from equitable
tolling for any of his claims. "[T]he fact that [under Duncan]
§ 2244(d)(2) does not cause exclusion of the federal petition's
time of pendency does not necessarily exclude the possibility of
discretionary tolling on equitable grounds." Rodriguez,
303 F.3d at 438.
Rodriguez's second petition is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a
prisoner has one year after his conviction becomes final in which
to file a petition for a writ of habeas corpus. See
28 U.S.C. § 2244(d)(1)(A). As noted earlier, Rodriguez's conviction became
final on August 26, 1996, the date on which his time to seek
certiorari from the United States Supreme Court expired. See
Pratt, 306 F.3d at 1194-1195; Ross, 150 F.3d at 98. Thus,
Rodriguez was required to file his habeas corpus petition on or
before August 27, 1997. For the reasons discussed earlier,
Rodriguez's second petition was filed on November 22, 1999.
Therefore, unless the statute of limitations is tolled for at
least twenty-seven months, Rodriguez's second petition is
The doctrine of equitable tolling permits courts to extend a
statute of limitations beyond the time of expiration to prevent
inequity. See Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.
2000) (citing Johnson v. Nyack Hospital, 86 F.3d 8, 12 [2d Cir.
1996]). However, equitable tolling applies only in "rare and exceptional" circumstances.
Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). To merit
equitable tolling of the one-year limitations period, a
petitioner must show that "extraordinary circumstances prevented
him from filing his petition on time." Id. In addition, a
petitioner must show that he acted with "reasonable diligence"
during the period he seeks to toll. Id.
The Court finds that extraordinary circumstances warrant
equitable tolling of the statute of limitations in this case. On
May 21, 1999, when Rodriguez sought to withdraw his first
petition without prejudice to refiling after exhaustion, he
relied, to his detriment, on the law then in effect as enunciated
in Walker. Moreover, when the court granted his withdrawal
request and dismissed the first petition without prejudice for
failure to exhaust remedies, it could not have anticipated that
the Supreme Court would issue its decision in Duncan, and that
Rodriguez's second petition would, as a result, be rendered
untimely. Thus, "[a]s of the moment the federal court dismissed
pending exhaustion without prejudice to refiling . . . the
`without prejudice' provision was an illusion; petitioner could
never succeed in timely refiling the petition because he [was]
already . . . time-barred." Rodriguez, 303 F.3d at 439.
A number of courts have held that equitable tolling is
warranted in circumstances similar to those presented here. See
Felton v. Mazzuca, No. 98 Civ. 4567, 2004 WL 1403354, at *4
(S.D.N.Y. June 22, 2004) (finding, upon reconsideration following
remand from the Second Circuit, that equitable tolling was
appropriate for period original habeas corpus petition was
pending); Owens v. Comm'r of Corrections, No. 301 CV 1480, 2003
WL 22208496, at *5 (D. Conn. Sept. 4, 2003) (finding that
petitioner was entitled to equitable tolling for portion of
one-year limitations period that first federal petition was
pending); DeJesus v. Miller, 215 F. Supp. 2d 410, 412-13 (S.D.N.Y. 2002) (finding that extraordinary
circumstances warranted equitable tolling of statute of
limitations where Court's ruling in Duncan rendered second
habeas corpus petition time-barred); Jimenez v. Walker,
166 F. Supp. 2d 765, 772 (E.D.N.Y. 2001) (finding that the fact that
Duncan transformed the dismissal of petitioner's first federal
petition without prejudice into a dismissal with prejudice by
rendering second petition time-barred presented extraordinary
circumstances warranting equitable tolling of statue of
In addition, as the Second Circuit points out, "had the
district court followed the procedure we later counseled in
[Zarvela v. Artuz], staying [the first petition] pending
exhaustion rather than dismissing it, [petitioner's claims] would
still be before the court under a timely filing." Rodriguez,
303 F.3d at 439. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir.
2001), the court found that, where a petition contains both
exhausted and unexhausted claims, an alternative to dismissing
the petition without prejudice to renewal after exhaustion of
state court remedies is to dismiss only the unexhausted claims
and stay the balance of the petition with a requirement that the
petitioner promptly pursue state court remedies and return to
federal court. See Zarvela, 254 F.3d at 380-82. Moreover, the
court held, where "an outright dismissal `could jeopardize the
timeliness of a collateral attack,'" a court must stay the
petition. Id. at 380. The court reasoned that a stay of the
petition would avoid the procedural obstacles which would arise
if a petitioner were to withdraw his petition and resubmit it at
a later date or have his resubmitted petition treated as a second
or successive petition. Id.
Had the Second Circuit's decision in Zarvela been available
at the time that Rodriguez sought to withdraw his first petition,
presumably the court would have stayed the exhausted portion of
the petition and dismissed only the unexhausted claims. If that
course had been pursued, the present circumstance, in which the second petition
has been rendered untimely, would have been avoided. However,
since neither Zarvela nor Duncan had been decided at the time
Rodriguez's first petition was dismissed, the court could not
have foreseen the risks attendant upon that ruling. Therefore,
the Court concludes that "extraordinary circumstances" exist in
In addition, Rodriguez acted with reasonable diligence in
pursuing his claims. Rodriguez filed his first petition
approximately seven months after his conviction became final.
Moreover, he sought to withdraw the petition as soon as
respondent moved to dismiss for failure to exhaust state remedies
and, on his own initiative, retracted his request for a
withdrawal when he became concerned that he would not be able to
complete exhaustion proceedings within the time remaining in the
one-year limitations period. In May 1999, petitioner again sought
to withdraw his petition so that he might exhaust his state
remedies. Previously, in an attempt to exhaust state remedies
with respect to his claim of ineffective assistance of appellate
counsel, petitioner had filed a motion for a writ of error coram
nobis. Finally, petitioner filed his second petition
approximately two months after his coram nobis application was
denied. As he then supposed, he was well within the limitations
Given the extraordinary circumstances presented in this case,
the decision of the Supreme Court in Duncan and petitioner's
reasonable diligence in pursuing his state and federal court
remedies, the Court concludes that petitioner is entitled to
equitable tolling of the period during which his first petition
was pending in federal court, that is, April 14, 1997 through
June 21, 1999. Thus, the limitations period began on August 26,
1996, and continued to run for 232 days, until the petitioner
filed his first petition, on April 14, 1997. Allowing for
equitable tolling of the period during which the first petition was pending in federal
court, the limitations period was tolled from that date through
the pendency of the coram nobis application and began to run
again on September 16, 1999, the date on which the coram nobis
application was denied. At the time the second petition was
filed, on November 22, 1999, 65 days remained in the limitations
period. Thus, the second petition was filed timely.
Furthermore, the claims raised in the second petition are
exhausted. The first claim, namely, that petitioner was denied a
fair trial because of the prosecutor's comments on summation, was
argued on direct appeal and rejected by the Appellate Division on
the ground that petitioner had not preserved it by objecting at
trial. See Rodriguez, 226 A.D.2d at 177-78,
641 N.Y.S.2d at 532. Leave to appeal to the New York Court of Appeals
was denied. See Rodriguez, 88 N.Y.2d at 884, 645 N.Y.S.2d at 459.
Petitioner also claims that he was denied the effective
assistance of appellate counsel and that the trial court erred in
failing to suppress identification testimony obtained as the
result of an unlawful search and arrest. These claims were raised
by the petitioner in his application for a writ of error coram
nobis. As noted earlier, that application was denied by the
Appellate Division on September 16, 1999. Moreover, there can be
no appeal to the New York Court of Appeals from a determination
respecting an application for a writ of error coram nobis.
See People v. Adams, 90 N.Y.2d 927, 664 N.Y.S.2d 260 (1997).
Therefore, it appears that petitioner "fairly presented" his
claims to the highest state court(s) from which a decision could
be rendered and, having been denied relief, used all available
mechanisms to secure state appellate review of the denial of
those claims. See 28 U.S.C. § 2254(b) and (c); Daye v.
Attorney General of New York, 696 F.2d 186, 190-191 n. 3 (2d
Cir. 1982) (en banc); Klein v. Harris, 667 F.2d 274, 282 (2d
Cir. 1981) (citations omitted). Accordingly, petitioner's claims are exhausted.
For the reasons set forth above, I recommend that the
petitioner be permitted to benefit from equitable tolling as to
all of the claims raised in the habeas corpus petition now before
the court and that the petition be found timely.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R. Civ. P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Michael B.
Mukasey, 500 Pearl Street, Room 2240, New York, New York, 10007,
and to the chambers of the undersigned, 40 Centre Street, Room
540, New York, New York, 10007. Any requests for an extension of
time for filing objections must be directed to Judge Mukasey.
FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See
Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund
v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983).