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RODRIGUEZ v. BENNETT

United States District Court, S.D. New York


September 14, 2004.

RAFAEL RODRIGUEZ, Petitioner,
v.
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 JUDGE

I. INTRODUCTION

  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.

  II. BACKGROUND

  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 coram nobis.

  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 timely.

  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. 20, 2001).

  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.

  III. DISCUSSION

  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 time-barred.

  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 limitations).

  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 this case.

  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 period.

  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.

  IV. RECOMMENDATION

  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).


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