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RODRIGUEZ v. BENNETT

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. ...


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