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Thomas v. Walsh


September 24, 2004




William Thomas brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for Robbery in the First Degree and Attempted Robbery in the First Degree. He argues: (1) that he was not mentally competent to plead guilty; (2) that he received ineffective assistance of counsel; (3) that the indictment against him was legally insufficient; (4) that his sentence was unduly harsh; and (5) that he was not advised of the consequences of violating the plea agreement. In an Order dated June 25, 2003, the Honorable Michael B. Mukasey, United States District Judge, directed Mr. Thomas to submit an affirmation setting forth why his petition should not be barred by the one year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. 104-32, 110 Stat. 1214 (codified at 28 U.S.C. § 2244(d)). Mr. Thomas complied with Judge Mukasey's instruction in a submission dated October 1, 2003. The respondent in turn moved to dismiss the petition as time-barred. For the reasons discussed below, I recommend that the respondent's motion be granted and the petition be dismissed.


On June 6, 1984, the petitioner pled guilty to Robbery in the First Degree in violation of New York Penal Law § 160.15 and Attempted Robbery in the First Degree in violation of Penal Law §§ 110.00 and 160.15. People v. Thomas, Nos. 1092/84, 1984/94 (Sup. Ct. N.Y. Co. Jan. 26, 2003) (slip op.) (attached as Exh. N to Declaration of Kimberly Morgan dated March 10, 2004 ("Morgan Decl."), at 1). The court postponed sentencing the defendant and placed him on interim probation. Id. As part of his plea agreement, the petitioner was promised youthful offender status on the conditions that he comply with his interim probation and not commit another crime. Nevertheless, prior to sentencing, the petitioner committed another robbery, during the course of which the victim was shot and killed. Id. at 1-2. The petitioner was convicted of Murder in the Second Degree, and as a result of this conviction was sentenced as an adult on the pending robbery counts. Id. at 2.

On October 18, 1989 the petitioner filed a post-conviction motion pursuant to Criminal Procedure Law ("CPL") §§ 440.20 and 440.10, which was denied by the New York State Supreme Court on January 10, 1990. People v. Thomas, Nos. 1092/84, 1984/84 (Sup. Ct. N.Y. Co. Jan. 10, 1990) (slip op.) (attached as Exh. C to Morgan Decl.). The petitioner's conviction and sentence were affirmed on appeal by the Appellate Division, First Department on January 17, 1991, People v. Thomas, 169 A.D.2d 515, 564 N.Y.S.2d 372 (1st Dep't 1991), and leave to appeal was denied by the Court of Appeals on August 8, 1991. People v. Thomas, 78 N.Y.2d 975, 574 N.Y.S.2d 955 (1991). On July 31, 2002, the petitioner filed a second post-conviction motion pursuant to CPL § 440.10 (the "Second 440 Motion"), which was denied on January 26, 2003. (Morgan Decl., Exh. N). The Appellate Division denied the petitioner's leave application on April 22, 2003. People v. Thomas, M-1217 (1st Dep't April 22, 2003) (slip op.) (attached as Exh. Q to Morgan Decl.). Thereafter, Mr. Thomas filed the instant petition for a writ of habeas corpus.


A. Constitutional Validity of the Statute of Limitations

The AEDPA imposes a one-year period of limitations for habeas corpus petitions, running from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The AEDPA further provides that "[t]he time during which a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).

The petitioner argues that imposing a statute of limitations on the writ of habeas corpus is unconstitutional because it violates the Suspension Clause of the United States Constitution. The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. The Second Circuit, however, has determined that the AEDPA's statute of limitations does not violate the suspension clause. See Lucidore v. N.Y. State Division of Parole, 209 F.3d 107, 113 (2002); Rodriguez v. Artuz, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam), aff'g on opinion below 990 F. Supp. 275 (S.D.N.Y. 1998). In Lucidore, the court reasoned that:

because AEDPA's one-year statute of limitations leaves habeas petitioners with some reasonable opportunity to have their claims heard on the merits, the limitations period does not render the habeas remedy "inadequate or ineffective to test the legality of detention," and therefore does not per se constitute an unconstitutional suspension of the writ of habeas corpus.

209 F.3d at 113 (citing Rodriguez, 990 F. Supp. at 280-82). In Rodriguez, the Honorable Sonia Sotomayor found that "[h]abeas is not rendered ineffective or inadequate in a particular instance merely because a procedural bar has fallen into place." 990 F. Supp. at 281-82.

Although the Second Circuit has never squarely addressed the issue, it has suggested that if a petitioner were to demonstrate that he is actually innocent of the crime for which he was convicted, then application of the AEDPA statute of limitations to bar habeas corpus relief might well constitute a suspension of the writ. Triestman v. United States, 124 F.3d 361, 378 & n.21 (2d Cir. 1997) (holding that claim of actual innocence would raise serious due process and Eight Amendment questions but declining to address alleged Suspension Clause violation; see also Rodriguez, 990 F. Supp. at 282. In order to be credible, a claim of actual innocence must be supported by "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). The petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327.

In this case, Mr. Thomas contests his conviction by stating that he was not mentally competent to plead guilty. However, the Appellate Division found that

[the defendant's] history of adolescent personality disorder did not in itself prove that he was incompetent to proceed. Defendant draws the court's attention to his monosyllabic responses during the plea colloquy, but his short answers did not intimate that he did not understand what was going on at the time he pleaded guilty.

People v. Thomas, 169 A.D.2d 515, 515-16, 564 N.Y.S.2d 372, (1st Dep't 1991). These findings have not been contradicted by additional information or expert evidence; the petitioner relies solely on his own conclusory statements as to his mental incompetency. Thus, the petitioner has not met the burden of showing that "in light of all of the evidence, it is more likely than not that no reasonable juror would have convicted him." Lucidore, 209 F.3d at 114 (quoting Bousely v. United States, 523 U.S. 614, 623 (1995)). Consequently, there is no reasonable basis on which the petitioner may argue that imposing the statute of limitations violates the Suspension Clause.

B. Application of the Statute of Limitations

The AEDPA does not specify what limitations period applies to prisoners whose convictions became final prior to the AEDPA. However, the Second Circuit, in Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998), found that such inmates have a one-year grace period in which to file their habeas corpus petitions, i.e., they must have filed their habeas petitions within one year of April 24, 1996, the date of the AEDPA's enactment.

The petitioner's state conviction became final prior to passage of the AEDPA. Thus, under the AEDPA's statute of limitations he had until April 24, 1997 to file a habeas petition. Mr. Thomas had no state proceedings pending during the relevant period. "[A] state-court petition is 'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedure." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). Although the petitioner filed two post-conviction motions pursuant to CPL § 440.20, neither of these motions tolled the AEDPA's statute of limitations. The first was fully disposed of prior to the AEDPA's enactment, and the second was not filed until five years after the statue of limitations had expired. Consequently, the petitioner's motion for a writ of habeas corpus was untimely.

C. Equitable Tolling

In Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), the Second Circuit determined that because the AEDPA's one-year time bar is a statute of limitations rather than a jurisdictional bar, it may be equitably tolled. Id. at 17. However, equitable tolling should be applied only in "extraordinary circumstances." Id. An extraordinary circumstance is one that is beyond the prisoner's control and that has made it impossible for him to file a timely petition. See Raynor v. Dufrain, 28 F. Supp. 2d 896, 900 (S.D.N.Y. 1998); In re Wattanasiri, 982 F. Supp. 955, 957 (S.D.N.Y. 1997). A petitioner seeking to toll the statute of limitations based on extraordinary circumstances must show that he has acted with reasonable diligence throughout the period he seeks to toll. Smith, 208 F.3d at 17. In addition, a petition may be exempt from the AEDPA's statute of limitations in instances where the petitioner can establish a credible claim of actual innocence. Garcia v. Portuondo, No. 02 Civ. 2312, 2004 WL 2072722, at *9 (S.D.N.Y. Sept. 13, 2004).

Mr. Thomas claims that several circumstances prevented him from filing his petition on time. First, he argues that his inability to acquire copies of the pre-sentence report, the mental health report, and the plea and sentence minutes prohibited him from claiming ineffective assistance of counsel. However, the absence of these documents did not preclude his filing of a post conviction motion pursuant to CPL § 440.20 on the same grounds. Thus, the petitioner could have commenced his habeas proceeding and requested the relevant documents during discovery.

The petitioner's second argument is that legislation authorizing interim probation for defendants eligible for a probationary sentence did not become effective until 1998, and that until that time he did not have legal support for his claim that his placement on interim probation supervision was illegal. Nevertheless, despite the absence of relevant legislation, the New York Court of Appeals specifically held in 1991 that the probation department lacked the authority to impose interim probation. People v. Rodney E., 77 N.Y.2d 672, 569 N.Y.S.2d 920 (1991). Thus, the petitioner could have challenged his interim probation well before the statute of limitations period at issue here, and he cannot claim equitable tolling based on extraordinary circumstances.

Finally, as noted above, Mr. Thomas has not made a credible claim of actual innocence.

Accordingly, the petitioner is ineligible for equitable tolling.


For the reasons set forth above, I recommend that Mr. Thomas's petition for a writ of habeas corpus be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Harold Baer, Jr., Room 2230, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully submitted,



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