United States District Court, W.D. New York
May 3, 2005.
KEVIN CORRIGAN, Petitioner,
JAMES BARBERY, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Petitioner Kevin Corrigan ("Corrigan") filed this pro se
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c), the parties have consented
to disposition of this matter by the undersigned. Corrigan seeks
to overturn his conviction solely on the basis that the
reasonable doubt charge given at his trial was unconstitutional.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Corrigan was tried before a jury in Niagara County Court
(Hannigan, J.) in September 1979 on charges stemming from two
1977 attacks. At trial, the judge instructed the jurors that a
reasonable doubt is one which "leaves your mind in state of
suspense, so that you are not able to say that you are convinced
to a moral certainty of the defendant's guilt." T. 1371.*fn1
According to the judge's charge, a reasonable doubt "must,
therefore, be based entirely and absolutely upon some good,
sound, substantial reason." T. 1371. The judge again directed the
jurors that if they were "morally and reasonably certain as to
the defendant's guilt," it was their "duty to convict [him]." T. 1372.*fn2 Defense counsel did not object to the
charge as given.
Corrigan was convicted on September 19, 1979, of two counts of
second degree murder, two counts of assault in the first degree,
and four counts of attempted robbery in the first degree. On
October 18, 1979, Corrigan was sentenced to two consecutive terms
of 25 years to life.
On direct appeal, the Fourth Department unanimously affirmed
Corrigan's conviction, People v. Corrigan, 139 A.D.2d 918
(4th Dept. 1988), but modified his sentence by reducing the
aggregate minimum term of imprisonment from 50 years to 25 years.
The New York Court of Appeals denied leave to appeal on May 9,
1988. People v. Corrigan, 72 N.Y.2d 917 (1988).
Corrigan challenged the constitutionality of the reasonable
doubt instruction given at his trial for the first time in a
motion to vacate the judgment pursuant to New York Criminal
Procedure Law ("C.P.L.") § 440.10 filed on January 31, 1997.
Judge Hannigan denied the motion in an order entered May 8, 1997,
relying exclusively on the state procedural bar of C.P.L. §
440.10(2)(c) (trial court must deny a motion to vacate a judgment
where, although sufficient facts appeared on the record to have permitted appellate review
of the issues, the defendant unjustifiably failed to raise them
on direct appeal). The Fourth Department denied leave to appeal
on August 1, 1997.
Corrigan filed an application for a writ of error coram nobis
on October 3, 1997. This motion was denied by the Fourth
Department in a summary order entered November 19, 1997. People
v. Corrigan, 670 N.Y.S.2d 649 (Table), 244 A.D.2d 1013 (4th
Dept. 1997). Corrigan did not seek leave to appeal.
Over two and a half years later, Corrigan challenged the
propriety of the reasonable doubt instruction in a second C.P.L.
§ 440.10 motion filed June 13, 2000. Corrigan relied upon the
then-recent Second Circuit decision in Gaines v. Kelly,
202 F.3d 598 (2d Cir. 2000).*fn3 County Court (Sperrazza, J.)
again denied the motion based on C.P.L. § 440.10(2)(c) without
considering the merits of Corrigan's claim. See 8/23/00 County
Court C.P.L. § 440.10 Order, submitted as part of Respondent's
Memorandum of Law (Docket #7).
Corrigan filed the instant federal habeas petition on March 13,
DISCUSSION I. Timeliness of the Petition
A. Statute of Limitations Under AEDPA
One of the changes wrought by AEDPA*fn5 is the imposition
of a one-year limitations period on habeas petitions which begins
to run from the latest of several events, including the date on
which the challenged state court judgment becomes final. See
28 U.S.C. § 2244(d)(1); Bennett v. Artuz, 199 F.3d 116, 118 (2d
Cir. 1999), aff'd, 531 U.S. 4 (2000). AEDPA's one-year
limitations period does not apply in a strict sense to Corrigan's
petition because his conviction became final on May 9, 1988, well
before the enactment of AEDPA on April 24, 1996. See Bennett,
199 F.3d at 118 (citing Reyes v. Keane, 90 F.3d 676, 678-79 (2d
Cir. 1996) (holding that AEDPA's one-year limitations period does
not apply retroactively), overruled on other grounds by Lindh v.
Murphy, 521 U.S. 320, 336-37 (1997)).
The Second Circuit has held that prisoners whose habeas claims
accrued prior to AEDPA's enactment are afforded the "reasonable
time" of "one year after the effective date of AEDPA" to file a
federal habeas petition. Bennett, 199 F.3d at 118 (citing Ross
v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998)). That one-year
grace period expired on April 24, 1997, over three years before
Corrigan filed his petition on March 13, 2001.
However, AEDPA 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."
28 U.S.C. § 2244(d)(2); Bennett, 199 F.3d at 119. In the
Bennett case, the Second Circuit joined the majority of circuit
courts in holding that the tolling provision of § 2244(d)(2) applies to
petitions challenging pre-AEDPA convictions. See Bennett,
199 F.3d at 119 (noting that to hold otherwise would effectively
discourage appellants from starting and completing the state
court review process).
The Second Circuit went on to announce that a state court
application or motion for collateral relief is "`pending' from
the time it is first filed until finally disposed of and further
appellate review is unavailable under the particular state's
procedures." Bennett, 199 F.3d at 120; see also Carey v.
Saffold, 536 U.S. 214, 217, 220-21 (2002).
Respondent argues that the tolling provision "would have
stopped when Petitioner received a final decision on his first
C.P.L. § 440.10 motion on August 1, 1997." Respondent's
Memorandum of Law at 3 (Docket #7) (emphasis in original).
Respondent is incorrect. The tolling would not have ended finally
upon the denial of the first C.P.L. § 440.10 motion since
Corrigan filed two more motions in state court which further
tolled the statute, i.e., the 1997 coram nobis application
and the 2000 C.P.L. § 440.10 motion. See
28 U.S.C. § 2244(d)(2).
Corrigan contends that his petition should not be time-barred
because it relies upon the Second Circuit's February 1, 2000
decision in Gaines v. Kelly and the "exhausting of this issue
took up several months." See Petitioner's Response Regarding
Timeliness at 2 (Docket # 4). Corrigan filed a second C.P.L. §
440.10 motion on June 13, 2000, to raise an argument based on the
Second Circuit's decision in Gaines v. Kelly, supra. In
essence, Corrigan contends that his petition is timely because it
was filed within one year of the denial of this second C.P.L. §
440.10 motion. However, Corrigan is also incorrect. Although
properly-filed state court applications for collateral relief
toll a running statute of limitations, the limitations period
does not begin anew each a petitioner files another such
application. See 28 U.S.C. § 2244(d)(1), (2). When Corrigan filed his first C.P.L. § 440.10 motion on January
31, 1997, he tolled the limitations period which had begun on
April 24, 1996. By that point, however, he was already 282 days
into the one-year period. This left Corrigan with 83 days in
which to file his habeas petition, unless he were to file any
additional state court motions and thereby obtain the benefit of
§ 2244(d)(2)'s tolling.
Corrigan's first C.P.L. § 440.10 motion was pending from
January 31, 1997, until August 1, 1997, when the Fourth
Department denied leave to appeal. Upon the Fourth Department's
denial of leave, the clock began running again. It ran for 63
days until Corrigan applied for a writ of error coram nobis on
October 3, 1997. That filing again tolled the limitations period
until the state court denied the application on November 19,
At that point, Corrigan had 20 days remaining on the one-year
limitations period. To be timely, Corrigan would have had to
either file his federal habeas petition by December 9, 1997, or
file another collateral state court motion by that date in order
to toll the limitations period again. However, Corrigan did not
file his second C.P.L. § 440.10 motion until June 13, 2000. Thus,
the one-year grace period ran out before Corrigan could gain the
benefit of the tolling occasioned by the filing of his second
C.P.L. § 440.10 motion.
B. Equitable Relief
Because AEDPA's one-year period has been construed as a statute
of limitations rather than a jurisdictional bar, courts may
equitably toll the period. Smith v. McGinnis, 208 F.3d 13, 17
(2d Cir. 2000). Equitable tolling applies only in the "rare and
exceptional circumstance." Id. (citation omitted). In order to
justify equitable tolling of the one-year period of limitations,
Corrigan must show that "extraordinary circumstances" prevented
him from filing his petition on time. See id. (citing Johnson v. Nyack Hosp., 86 F.3d 8, 12
(2d Cir. 1996) (noting that the Second Circuit has applied
equitable tolling doctrine "`as a matter of fairness' where a
plaintiff has been `prevented in some extraordinary way from
exercising his rights. . . .'") (citation omitted)).
Furthermore, the petitioner seeking equitable tolling must have
acted with "reasonable diligence" throughout the period he seeks
to toll. See id. The petitioner must demonstrate a causal
relationship "between the extraordinary circumstances on which
the claim for equitable tolling rests and the lateness of his
filing, a demonstration that cannot be made if the petitioner,
acting with reasonable diligence, could have filed on time
notwithstanding the extraordinary circumstances." Valverde v.
Stinson, 224 F.3d 129, 134 (2d Cir. 2000); Hizbullahankhamon v.
Walker, 255 F.3d 65, 76 (2d Cir. 2001).
In general, the difficulties attendant on prison life, such as
transfers between facilities, solitary confinement, lockdowns,
restricted access to the law library, and an inability to secure
court documents, do not by themselves qualify as extraordinary
circumstances. Amante v. Walker, 268 F. Supp.2d 154, 158
(E.D.N.Y. 2003) (citing Lindo v. Lefever, 193 F. Supp.2d 659,
663 (E.D.N.Y. 2002)); see also Anderson v. O'Gara, 2002 WL
1633917, at *4 (S.D.N.Y. July 23, 2002) (lack of notice of denial
of coram nobis petition is not "extraordinary" because, "[i]n
the absence of some specific legal requirement or promise, there
is nothing unusual about a court issuing a decision and a
litigant not receiving a copy of it in the mail"). Moreover,
simple ignorance of the applicable rules does not excuse a
petitioner's failure to file a timely petition. See Plowden v.
Romine, 78 F. Supp.2d 115, 120 (E.D.N.Y. 1999) ("There is no
limiting principle to [petitioner's] argument that simple
ignorance absent any showing of diligence on his part or
allegations of impediments to his staying informed about this
case should provide a basis for equitable tolling; to hold that the statute of limitations should
be extended in this case would allow the statute to be extended
The Court of Appeals for the Second Circuit, however, has
indicated that in limited circumstances an inability to access
court papers may warrant an equitable toll. See
Hizbullahankhamon v. Walker, 255 F.3d at 76 (indicating that the
prison authority's discretionary deprivation of access to legal
materials might warrant an equitable toll where such action
prevented a prisoner from filing a petition for a writ of habeas
corpus), cert. denied, 536 U.S. 925 (2002); Raynor v.
Dufrain, 28 F. Supp.2d 896, 900 (S.D.N.Y. 1998) ("Equitable
tolling is warranted when some event effectively prohibits the
petitioner from pursuing habeas, such as the misplacement of
files, or being denied access to materials necessary to file a
I must conclude that by "extraordinary circumstances," the
Second Circuit definitely means extraordinary. It is exceedingly
rare for courts in this Circuit to find that such circumstances
exist. As the Second Circuit recently explained, it has
"established only a limited number of circumstances that may
merit equitable tolling, such as where an attorney's conduct is
so outrageous and incompetent that it is truly extraordinary,
see Baldayaque [v. United States], 338 F.3d [,]152 [(2d
Cir. 2003)], and where prison officials intentionally obstruct a
petitioner's ability to file his petition by confiscating his
legal papers, see Valverde v. Stinson, 224 F.3d 129, 133-34 (2d
Cir. 2000)." Doe v. Menefee, 391 F.3d 147, 159-60 (2d Cir.
2004). A prisoner's mental health problems, where they were
sufficiently severe, have been found to constitute "extraordinary
circumstances." See Benn v. Greiner, 275 F. Supp.2d 371, 374
(E.D.N.Y. 2003) (Weinstein, J.) (finding that the petitioner, who
had extremely severe psychiatric problems and spent most of his
sentence in the mental health ward, "demonstrated by a preponderance of the evidence that he could not, without the
unexpected beneficence of his friends, have timely filed the
federal habeas application"). The Second Circuit has
"specifically reserved the question of whether a claim of actual
innocence based on newly discovered evidence constitutes an
extraordinary circumstance that merits equitable tolling,
however, as well as the question of whether the Constitution
would require equitable tolling for actual innocence," Doe,
391 F.3d at 160 (citing Lucidore v. New York State Div. of Parole,
209 F.3d 107, 114 (2d Cir. 2000)).
I have not found any precedent standing for the proposition
that the unavailability of beneficial case law is an
"extraordinary circumstance" that would excuse a petitioner's
lateness in filing a habeas petition. This circumstances of this
case highlight the anomalous outcomes inherent in having a
statute of limitations apply to a claim that an individual is
being held in violation of his rights under the United States
Constitution. The Second Circuit has held, however, that
28 U.S.C. § 2244(d)(1), which sets forth AEDPA's statute of
limitations, does not constitute a suspension of the Great Writ.
See Lucidore, 209 F.3d at 113 (citations omitted).
The case at bar comes down to this inescapable fact: were there
no AEDPA, Corrigan would not have had to worry about a
limitations period or equitable tolling. However, AEDPA is now a
reality, and it governs the disposition of Corrigan's petition
at least procedurally. This Court cannot reach the merits of the
case unless it can find that extraordinary circumstances
prevented Corrigan from timely filing his petition. He has not
alleged that he was mentally or physically unable to file the
petition, nor has he alleged that he was prevented by prison
officials from obtaining access to legal materials or from filing
his petition. In essence, this Court would have to find that "not
thinking there is good enough precedent" constitutes an
extraordinary circumstance. Taking that argument to its logical conclusion, it
would mean that prisoners could just sit and wait until favorable
case law came down the pike before filing their habeas petitions.
I note with some irony that this is apparently what Congress
intended AEDPA to curb by imposing a statute of limitations and
limiting the filing of second or successive habeas petitions.
Upon review of the record before it, the Court cannot find that
Corrigan's case presents extraordinary or exceptional
circumstances which would warrant equitable tolling. There were
considerable delays between Corrigan's various attempts to seek
collateral review of his conviction. For instance, Corrigan
waited over two and a half years to file his second motion to
vacate pursuant to C.P.L. § 440.10. These delays do not show
reasonable diligence. See Smith, 208 F.3d at 17. As a result,
equitable tolling is not warranted. The Court therefore must find
that Corrigan's petition is untimely.*fn6 Respondent's
motion to dismiss the petition for a writ of habeas corpus is
granted on the basis that the petition is untimely.
It is hereby ORDERED that Corrigan's petition for a habeas
corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as untimely.
IT IS SO ORDERED