United States District Court, S.D. New York
June 7, 2005.
WILLIAM ANTHONY EVANS, Petitioner,
DAVID L. MILLER, SUPERINTENDENT OF EASTERN CORRECTIONAL FACIILTY, Respondent.
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
MEMORANDUM AND ORDER
William Evans's pro se habeas Petition and Affidavit in
Support were received by our Court's Pro Se Office on October 8,
2004; in it, he states that he is attacking a 1981 conviction for
armed robbery and criminal possession of a loaded handgun.
On December 3, 2004, Chief Judge Mukasey issued an order
(Docket Item # 2) directing Evans to submit an amended petition
within sixty days. In response, Evans filed an Amended Petition
dated December 16, 2004 (Docket Item # 3). It annexed an
"Affidavit in Support" (signed but not notarized) and a
Memorandum of Law. On January 13, 2005, the case was reassigned
to Judge Batts, who ordered the Clerk to serve the Attorney
General.*fn1 (Docket Item #5.) On April 25, 2005, Judge
Batts referred the petition to me. On April 29, 2005, Assistant
Attorney General Alyson J. Gill served a Motion to Dismiss with a
Memorandum of Law and Declaration in Support with Exhibits A
AAG Gill invokes the one-year statute of limitations,
28 U.S.C. § 2244(d). This conviction was based on a guilty plea in Supreme
Court, New York County; Evans was represented by the Legal Aid
Society. The Appellate Division affirmed the judgment of
conviction on September 19, 1989, and Evans apparently never
sought leave to appeal to the Court of Appeals. The conviction
became final thirty days later, on October 20, 1989, when the
period for seeking review to the Court of Appeals expired. See
Bethea v. Girdich, 293 F.3d 577 (2d Cir. 2002); Williams v.
Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Because the
conviction became final prior to the effective date of § 2214(d),
Evans had a one-year grace period ending on April 24, 1997 his
deadline to file a habeas petition. Ross v. Artuz, 150 F.3d 97
(2d Cir. 1998). However, he did not sign his petition until
October 5, 2004, long after the expiration of that one-year
The grace period may be tolled during the pendency of a
properly filed application for state post-conviction relief.
See Smith v. McGinnis, 208 F.3d 13, 15-16 (2d Cir. 2000) (tolling
provisions apply to both the limitations period and the one-year
grace period). Evans gets no help from the fact that he filed
such an application (Gill Exh. E) on May 7, 2003 that was six
years after the expiration of the one-year grace period.
Moreover, there is nothing in the record that warrants
equitable tolling in this case. Equitable tolling applies only in
"rare and exceptional circumstances." Smith v. McGinnis,
208 F.3d at 17. Even where exceptional circumstances are shown to
exist, a petitioner still bears the burden of proving that the
circumstances, and not petitioner's actions, actually prevented
him from filing in a timely manner. Valverde v. Stinson,
224 F.3d 129, 134 (2d Cir. 2000). The word "prevent" requires the
petitioner to 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. Id. So far, Evans has failed to
demonstrate that he is entitled to either statutory tolling or
Evans's Other Convictions
In People v. Evans, 702 N.Y.S.2d (3d Dep't 2000), the
Appellate Division summarized Evans's criminal history since 1981 as follows:
On December 9, 1981, petitioner was sentenced in
Supreme Court, New York County, as a second felony
offender to concurrent prison terms of 6 to 12 years
for robbery and criminal possession of a weapon.
Petitioner was released on parole in 1987 and again
in 1989; however, while on parole he committed
several other crimes which led to additional
convictions. Then, on November 25, 1991, petitioner
was sentenced in the U.S. District Court for the
Eastern District of New York to a term of 40 months'
imprisonment to run concurrently with his existing
New York sentence. Thereafter, on January 23, 1992,
petitioner was again convicted of robbery and
sentenced by Supreme Court, Queens County, to two
terms of 12 to 24 years' imprisonment to run
consecutively to each other. These sentences,
however, were remanded for retrial (see, People v.
Evans, 232 A.D.2d 424, 648 N.Y.S.2d 308, lv.
denied, 89 N.Y.2d 921, 654 N.Y.S.2d 724,
677 N.E.2d 296) and petitioner was again convicted; on April 1,
1997 he was sentenced to two terms of 6 to 12 years'
imprisonment to run concurrent with each other and
any sentence hold. Again on June 1, 1992, petitioner
was convicted of three counts of robbery and one
count of attempted robbery. Petitioner was sentenced
by County Court, Nassau County, to four prison terms
of 25 years to life to run concurrently with each
More recently Judge Wexler denied Evans's habeas petition
challenging that Nassau County conviction. Evans v. Senkowski,
228 F.Supp.2d 254
The One-Year Statute of Limitaions
AAG Gill argues that Evans's petition should be dismissed as
untimely. When the original petition was filed in October 2004,
Evans seems to have already realized he had a statute of limitations problem. In both of his "Affidavits" (annexed to the
petition and the amended petition) he wrote:
4. Petitioner claims his application is timely under
the AEDPA because he had a state post-conviction
motion pending for over twelve years, and such motion
forms the basis of the current claims.
5. That Petitioner filed and served his first state
post-conviction motion, via United States Mail from
Nassau County Correctional Facility, in approximately
April of 1991. Petitioner does not now have a copy of
6. Petitioner was then incarcerated for a parole
violation on the instant matter, and robbery charges
in both Nassau and Queens Counties.
* * *
9. That on May 16, 2003 [actually Evans served the
motion on May 7, 2003; it is reproduced as Exh. E to
AAG Gill's 4/29/05 motion], after the completion of
Petitioner's arduous and lengthy appeals, he, in
effect, amended his 12 year pending C.P.L. § 440
motion in this action since no decision had been
10. That both the Respondent and the hearing court
claim to have no record of the previous motion having
ever been filed and served.
11. That Petitioner had written to the Office of the
New York County District Attorney Freedom of
Information Unit in August 2003, requesting a copy of
the C.P.L. § 440 motion which was filed in April of
1991. That office, Records Access Officer ADA
O'Conn[o]r, informed Petitioner that while the record
existed, he could not have a copy because the action
was still pending. See exhibit B [the O'Conn[o]r
letter]. 12. That based upon the foregoing, Petitioner claims
his Petition is timely under the AEDPA.
28 U.S.C. § 2244 contains the one-year statute of limitations
for § 2254 petitions. It also contains a tolling provision, §
2244(d)(2), which states (with my emphasis):
The 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.
Evans seeks to invoke this tolling provision. However, I see
nothing in the record that supports Evans's claim that he filed a
§ 440 motion in state court in 1991. He made the same assertion
in his May 7, 2003 motion, but the hearing court (Justice
Zweibel) wrote, on January 21, 2004:
Defendant claims that although he filed and served an
earlier CPL 440.20 motion in 1991, the People did not
serve an answer and no decision was rendered. The
Court cannot find any such motion in the Court file
or in the Supreme Court Clerk records. The People
also aver that there is no record of this motion in
the People's files.
(Gill Exh. G.) In August 2003, Evans wrote to the District
Attorney's Freedom of Information Unit and requested a copy of
his 1991 motion. I disagree with Evans's claim that ADA
O'Connor's response said that "the record existed." (Evans's
"affidavit" at ¶ 11, quoted above.) In fact, ADA O'Connor's
response, dated September 22, 2003, stated only: . . . Our records indicate that you have filed a post
judgment motions [sic], seeking to vacate your
sentence. Therefore your case is still pending and
your request must be denied. Disclosure during a
pending proceeding would interfere with the handling
of the judicial proceedings as well as with any
further investigation that might be necessary.
Matter of Pittari v. Pirro, 258 A.D.2d 202 (2d
Dept. 1999); Matter of Legal Aid Society v. New York
City Police Dept., 274 A.D.2d 207
(1st Dept. 2000);
Matter of Sideri v. Office of the District Attorney
of New York County, 243 A.D.2d 423 (1st Dept. 1997).
(Exh. B to the petition and to the amended petition.) It seems
clear to me that ADA O'Connor was referring to the pending
post-judgment motion filed by Evans in May 2003, not to the
alleged 1991 motion.
Evans has the burden to show that our Court should toll the
one-year statute of limitations. He must offer more than his own
self-serving statement that he had a properly filed motion
pending in state court starting in 1991. Moreover, he must
describe in detail what efforts he made from 1991 to 2003 to
learn the status of the alleged 1991 motion.
I direct AAG Gill to serve and file, by June 13, 2005, either
(a) an amendment to her papers or (b) a statement that she rests
on her April 29 motion to dismiss. This will make it possible for
Evans to address her original papers and the amendment in a
I direct Evans to serve and file, by June 30, 2005, his response, if any, to AAG Gill's papers and to this Memorandum and
Order. If Evans does not file a response by June 30, I will write
my Report and Recommendation to Judge Batts based on the record
as it now exists.