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United States District Court, S.D. New York

June 7, 2005.


The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge


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 through K.

  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 period.

  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 equitable tolling.

  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 other.
More recently Judge Wexler denied Evans's habeas petition challenging that Nassau County conviction. Evans v. Senkowski, 228 F.Supp.2d 254 (E.D.N.Y. 2002).

  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 that motion.
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 rendered.
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 single response.

  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.

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