United States District Court, S.D. New York
July 12, 2005.
WILLIAM THOMAS, Petitioner,
WALSH, SUPERINTENDENT, SULLIVAN CORRECTIONAL FACILITY, Respondent.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Matthew Danzig, a summer 2005 intern in my Chambers, and currently a second year law student at Georgetown University Law Center, provided substantial assistance in the research and drafting of this Opinion.
OPINION & ORDER
On June 25, 2003, pro se petitioner William Thomas
("Thomas") moved for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. On March 10, 2004, Respondent moved to dismiss the
petition as untimely pursuant to 28 U.S.C. § 2244(d). The matter
was referred to Magistrate Judge James C. Francis, who issued a
Report and Recommendation ("R&R") that the motion be granted on
September 24, 2004. Thomas filed objections, and for the reasons
stated below, the R&R is adopted and the motion to dismiss is
The procedural history of this case is recited in full in
Magistrate Judge Francis' R&R, familiarity with which is assumed.
To summarize, on June 6, 1984, at the age of sixteen, Thomas pled
guilty to robbery and attempted robbery. People v. Thomas, Nos.
1092/84, 1984/94 (Sup.Ct. N.Y. Co. Jan. 26, 2003). The court
adjourned the sentence and because of his young age placed Thomas
on "interim probation," a probationary period between conviction
and sentencing that imposed conditions on Thomas which, if satisfied, would afford him
youthful offender status and a lesser sentence. See, e.g.,
People v. Avery, 650 N.E.2d 384, 385 (N.Y. 1995). Thomas was
promised youthful offender status so long as he complied with the
terms of his interim probation and did not commit another crime
during that time period. Within the next two years Thomas was
convicted of Second Degree Murder and he was sentenced as an
adult for the earlier robbery, the attempted robbery, and the
murder. Thomas is now serving the murder sentence (twenty-five
years to life) and the robbery sentences (thirteen to forty
years) concurrently. The subject of this habeas petition
involves only the robbery and attempted robbery convictions.
On October 18, 1989, Thomas filed a post-conviction motion in
New York Supreme Court that sought to set aside the robbery and
attempted robbery sentences and vacate those convictions. The
motion was denied on January 10, 1990. People v. Thomas, Nos.
1092/84, 1984/84 (Sup.Ct. N.Y. Co. Jan. 10, 1990). Thomas
appealed alleging that (1) the sentencing court abused its
discretion by failing to order sua sponte a competency
hearing, and (2) his counsel was ineffective for failure to
request such a hearing. People v. Thomas, 169 N.Y.S.2d 372, 372
(N.Y.App. Div. 1st Dept. 1991). On January 17, 1991, the New
York State Appellate Division, First Department, affirmed the
conviction and sentence. Id. at 373. Thomas moved for further
leave to appeal and it was denied on August 8, 1991. Almost 11
years later, on July 31, 2002, Thomas filed a second
post-conviction motion in New York Supreme Court which again
sought to vacate the robbery convictions. Again the motion was
denied. People v. Thomas, No. 1092/84 (Sup.Ct. N.Y. Co. Sept.
On June 25, 2003, Thomas filed a habeas corpus petition in
this Court and, per the Court's direction, submitted an
affirmation that explained 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
("AEDPA"). Respondent filed a motion to dismiss the petition as
untimely. The matter was referred to Magistrate Judge Francis,
who issued an R&R finding the petition time-barred. Thomas filed
objections to that portion of the R&R.
A. Standard of Review
In response to a magistrate judge's recommendation for the
disposition of a petition for habeas corpus, the district
court reviews de novo those parts of the report to which the
petitioner objects, and may accept, reject, or modify the report
in whole or in part. Fed.R.Civ.P. 72(b);
28 U.S.C. § 636(b)(1)(B), (C).
B. Petitioner's Objections
Thomas presents three objections to the Magistrate Judge's
recommendation that the petition be dismissed as time-barred: (1)
the AEDPA's statute of limitations for filing habeas corpus
petitions is unconstitutional; (2) he is entitled under the AEDPA
to toll the limitations period which would make his petition
timely; and (3) "extraordinary circumstances" exist which merit
equitable tolling. Smith v. McGinnis, 208 F.3d 13 (2d Cir.
2000); Valverde v. Stinson, 224 F.3d. 129 (2d Cir. 2000)
(holding that courts may equitably toll the limitations period
when "extraordinary circumstances" prevented a prisoner from
filing his habeas corpus petition on time). 1. The Constitutionality of the AEDPA's Statute of
The statute of limitations set forth by the AEDPA provides that
a petitioner must commence habeas corpus proceedings within
one year of the date the judgment in the underlying criminal case
became final.*fn1 28 U.S.C. § 2244(d)(1)(A) (2005).
Thomas argues that the statute of limitations imposed by the
AEDPA limits when a habeas petition may be filed and therefore
acts as a suspension of the writ in violation of the Suspension
Clause of the Constitution. See U.S. Const. art I, § 9, cl. 2
("The 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."). Unfortunately, the Second
Circuit has specifically held that the AEDPA's statute of
limitations does not run afoul of the Suspension Clause and
therefore is Constitutional. See, e.g., Lucidore v. N.Y. State
Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2002) ("[T]he [AEDPA]
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."); Swain v. Pressley,
430 U.S. 372 (1977) (holding that under the Suspension Clause the
test of a habeas corpus remedy is whether it is ineffective
or inadequate to test the legality of a person's detention).
2. Tolling the Statute of Limitations
The statute of limitations to file a habeas petition has two
facets, a one-year period which usually begins to run on the date
the petitioner's underlying conviction became final,
28 U.S.C. § 2244(d)(1)(A) (2005), and one that excludes time where a properly filed application for State post-conviction review is
pending. 28 U.S.C. § 2244(d)(2).
However, the AEDPA came into effect on April 24, 1996, and if a
prisoner's conviction became final prior to that date he is
permitted a one-year "grace period" up until April 24, 1997 to
file his habeas petition. Ross v. Artuz, 150 F.3d 97 (2d Cir.
1998). Because Thomas's conviction became final more than five
years before the AEDPA went into effect, he had until April 24,
1997 to file his § 2255 habeas petition.
Thomas did not file his petition until June 25, 2003, more than
6 years after his grace period expired, and therefore the
petition is untimely. Thomas argues he had pending applications
for State post-conviction review which toll the one-year grace
period and thus his petition should not be time-barred.
28 U.S.C. § 2244(d)(2) (2005).
The argument is unavailing because Thomas's post-conviction
motions were never pending during the one-year grace period and
thus they may not toll the grace period. See Bennet v. Artuz,
199 F.3d 116, 120 (2d Cir. 1999) ("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"). The Petitioner's first motion was
dismissed on January 10, 1990. As Thomas did not appeal the
dismissal, it became final 30 days later on February 10, 1990,
more than 6 years before the grace period began to run. See
N.Y. Crim. Proc. Law §§ 450.15, 460.10(4), 460.15 (McKinney 2005)
(the appeal of the dismissal of a post-conviction motion must be
filed within 30 days of dismissal). The second motion was filed
on July 31, 2002, more than 5 years after Petitioner's grace
period had expired. As such, Thomas cannot benefit from any
tolling provision in the statute. 3. Equitable Tolling
In limited circumstances, the Court may toll the period of
limitations for reasons not covered by the statute because of
"extraordinary circumstances," as alleged in Petitioner's third
argument. See, e.g., Smaldone v. Senkowski, 273 F.3d 133, 138
(2d Cir. 2001). To qualify for this exception, Thomas must
"demonstrate that he acted with reasonable diligence during the
period he wishes to have tolled, but that despite his efforts,
extraordinary circumstances beyond his control prevented
successful filing during that time." Id. (quoting Smith,
208 F.3d at 17) (internal marks omitted).
Thomas makes two arguments on this score. First, he contends he
was incarcerated and unable to obtain the documents he considered
necessary for his petition. Here, the Second Circuit has
specifically held that the inability to obtain court documents
due to the routine restrictions of prison life does not rise to
the level of extraordinary circumstances. Davis v. McCoy, 2000
WL 973752, at *2 (S.D.N.Y. July 14, 2000). Moreover, despite the
absence of court documents he thought necessary, Thomas was
indeed able to file his first post-conviction motion in 1989 on
the very same grounds he used in his 2003 habeas petition. At a
minimum this suggests that Thomas was capable of and could have
filed his habeas petition before the limitations clock expired
in 1997. (Report and Rec., 03 Civ 4662 at 20 (HB) (JCF) (2004).)
Second, Thomas argues he was precluded from finding law that
could help him challenge his interim probation until he "stumbled
across it in July 2002." (Pet. Objections to Report and Rec. at
20.) This argument must fail because pertinent law was in fact
available as far back as 1991 when the New York Court of Appeals
held that "there is no express statutory authority for `interim
probation' pending the sentence." People v. Rodney E., 572 N.E.2d 603, 604 (N.Y.
1991). Thus, Judge Francis correctly concluded that Thomas could
have challenged his interim probation before the grace period
expired in 1997, and no extraordinary circumstances exist here to
warrant equitable tolling. (Report and Rec., 03 Civ 4662 at 9
(HB) (JCF) (2004).)
After concluding a de novo review of those parts of the R&R
to which Thomas objected and finding no clear error with respect
to the balance of the R&R, this Court adopts Magistrate Judge
Francis' R&R dated September 24, 2004 in its entirety. The motion
to dismiss is GRANTED, and the petition for a writ of habeas
corpus is DENIED. The Clerk of the Court is ordered to close
any open motions and remove this case from my docket.
IT IS SO ORDERED.