United States District Court, W.D. New York
August 13, 2005.
DERREL AUSTIN aka DERREL MOORE, Petitioner,
GEORGE DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent.
The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
DECISION AND ORDER
Petitioner Derrel Austin ("Austin"), acting pro se, seeks
relief pursuant to 28 U.S.C. § 2254,*fn1 alleging that his
conviction in Supreme Court, Erie County, State of New York, on
October 27, 1995, was unconstitutionally obtained and that he
received an excessive sentence. Austin's conviction and sentence
were affirmed by the New York Supreme Court Appellate Division,
Fourth Department on March 13, 1998,*fn2 and leave to appeal
was denied by the New York Court of Appeals on June 18,
By Order of this Court, filed October 23, 2002 (Docket No. 3),
Austin was advised that his petition appeared untimely and was
directed to file information addressing the issue of timeliness
under 29 U.S.C. § 2244(d)(1), which imposes a one-year statute of
limitations on the filing of § 2254 habeas petitions. The
limitations period is counted from
(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 [United
States] Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) 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
28 U.S.C. §§ 2244(d)(1) and (2), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA" or the "Act"),
Pub.L. No. 104-132, 110 Stat. 1214, effective April 24, 1996.
On November 5, 2002, petitioner filed his response (Docket No.
4). The Court found that petitioner had failed to provide sufficient
information to make a determination on timeliness and, because
petitioner is pro se, allowed him to file an additional
response explaining the reasons for his delay in appealing the
state court's denial of a collateral attack on his conviction
(Docket No. 5).
Petitioner filed his additional response on December 16, 2002
(Docket No. 6) and, by Order filed on December 20, 2002, the
Court deemed the petition timely under 28 U.S.C. § 2244(d)(1).
The Order does not state whether the petition, which is untimely
on its face, was "deemed timely" based upon an application of
statutory tolling under § 2244(d)(2), or equitable tolling.
Respondent filed an answer and memorandum of law on January 30,
2003, arguing that the petition must be denied because of
untimeliness and on other grounds (Docket Nos. 8 and 9).
It is well established that a district court's interlocutory
orders and rulings are subject to modification by the court at
any time prior to final judgment. In re United States,
733 F.2d 10, 13 (2d Cir. 1984). This Court has examined respondent's
timeliness arguments and Austin's submissions and, as explained
fully below, now finds that the petition must be dismissed as
As already noted, Austin's application for leave to appeal to
the New York Court of Appeals was denied on June 18, 1998. Thus,
his conviction became final on September 16, 1998, the day on
which his time to seek direct review by writ of certiorari to the
United States Supreme Court expired. Walker v. Artuz,
208 F.3d 357, 358 (2d Cir. 2000), rev'd on other grounds sub nom. Duncan v. Walker, 533 U.S. 167,
121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001). Austin did not file this
habeas corpus petition until October 15, 2002, over four years
after his conviction became final. On its face, then, the
petition was filed well beyond the one-year statute of
limitations period established by the AEDPA. However, the
limitations period is tolled for the time during which a properly
filed application for State post-conviction or other collateral
review is pending, 28 U.S.C. § 2244(d)(2), and may be equitably
tolled in the rare and exceptional circumstance, Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (quoting Turner v.
Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied,
528 U.S. 1007, 145 L. Ed. 2d 389, 120 S. Ct. 504 (1999)). Therefore,
the timeliness of the petition depends, in the first instance, on
the extent to which any post-conviction applications or motions
tolled the statute of limitations.
On April 6, 1999, Austin filed a N.Y. CRIM. PROC. LAW § 440.10
motion to vacate his conviction. The 201 days that elapsed
between Austin's conviction becoming final and his filing of the
§ 440.10 motion are not subject to tolling because no properly
filed application for post-conviction or other collateral review
was pending during that period. Statutory tolling did commence
with Austin's filing of his § 440.10 motion, which was
subsequently denied by the Fourth Department on May 26, 2000.
Austin had 30 days thereafter in which to file an application
seeking leave to appeal, but did not do so. Thus, the limitations
period was tolled from April 6, 1999 through June 26,
2000.*fn4 Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.
1999) (holding that, under 28 U.S.C. § 2244(d)(2), a state-court application "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"), aff'd, 531 U.S. 4,
121 S. Ct. 361, 148 L. Ed. 2d 213 (2000).
Austin then had 164 days remaining on the one-year limitations
period, which expired on December 7, 2000. No further state-court
application for post-conviction or other collateral review was
filed prior to the expiration of the limitations period. Austin's
habeas petition, which was not filed until October 15, 2002, is
Austin contends that the Court should consider his petition
despite its statutory untimeliness because: (1) the requirements
of state exhaustion made it impossible for him to submit his
habeas petition sooner; (2) he lacked education and knowledge;
(3) he was confined to his cell without access to the facility's
law library; (4) he was arrested at the age of 16; and (5) he is
actually innocent (Docket Nos. 4 and 6).
Equitable tolling, such as is urged by Austin, is applied by
the courts only in "rare and exceptional" circumstances where
judged necessary as a matter of fairness. Smith,
208 F.3d at 17-18. The mere existence of extraordinary circumstances is not
sufficient; those circumstances must have actually prevented the
petitioner from filing his habeas petition on time. Valverde
v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (citation omitted),
cert. denied, 536 U.S. 925, 122 S. Ct. 2593, 153 L. Ed. 2d 782
(2002). In addition, a party seeking equitable tolling must have acted with reasonable
diligence throughout the period he seeks to toll. Smith,
208 F.3d at 17. The burden is on the petitioner to demonstrate that
he has met the high standard required before the Court may
consider applying equitable tolling. Hizbullahankhamon v.
Walker, 255 F.3d 65, 75 (2d Cir. 2001), cert. denied,
536 U.S. 925, 122 S. Ct. 2593, 153 L. Ed. 2d 782 (2002) ("[P]etitioner
[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.'") (quoting Valverde, 224, F.3d
Here, Austin has not identified any "extraordinary
circumstance" which made it impossible to file his petition
within the one-year time period. His claims are discussed
(1) There was no way possible for me to have
submitted petition any sooner . . . without running
the risk of being barred for failing to first exhaust
my state remedies. . . . (Docket No. 4)
Statutory tolling expressly permits the exhaustion of state
remedies without time penalty and this assertion fails to present
a colorable argument, much less an extraordinary circumstance.
Smith, 208 F.3d at 17 (the proper calculation of § 2244(d)(2)'s
tolling provision excludes time during which properly filed state
relief applications are pending).
(2) With my seventh grade education, I had no way of
knowing I had to appeal this judgment in order to
exhaust my state remedies. (Docket No. 6)
Austin's level of education, a circumstance shared by many
inmates, is not a rare and exceptional one that would justify the
application of equitable tolling. Francis v. Miller, 198 F. Supp. 2d 232, 235 (E.D.N.Y. 2002) (noting that limited
education, ignorance of the law and legal procedure, lack of
funds, limited access to legal assistance, and limited use of the
prison library are not so "exceptional" as to merit equitable
tolling); Fennell v. Artuz, 14 F. Supp. 2d 374
, 377 (S.D.N.Y.
1999) (the "excuse" of being uneducated and unfamiliar with legal
research and legal procedures does not warrant equitable tolling
since virtually all inmates can make the same claim).
(3) When I received the [May 26, 2000] judgment I was
confined to my cell and denied access to the
facilities [sic] law library. . . . Upon being
released from confinement I was able to once again
properly access the facility law library where I
found out I couldn't proceed to the Federal courts
because I failed to appeal my judgement [sic] of my
440 motion. (Docket No. 6)
Although Austin had two opportunities to provide the Court with
information as to why his petition should not be dismissed as
untimely, he did not specify the amount of time he was confined
to his cell, nor did he otherwise indicate how this confinement
prevented him from timely filing his petition. Austin does not
claim to have been deprived of all access to legal materials
during cell confinement, but only access to the law library.
Moreover, because he provided no information about the duration
of his cell confinement, Austin has not demonstrated that he
acted with reasonable diligence to pursue his claims once he was
returned to standard confinement.
"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." Corrigan v. Barbery, 371 F. Supp. 2d 325, 330
(W.D.N.Y. 2005) (citations omitted); see also, Francis, 198 F. Supp. 2d at 235. Austin
has not identified the existence of circumstances outside the
"difficulties attendant on prison life" and equitable tolling is
(4) I was arrested at the age of 16 yrs. old,
everything I know I learned in prison. . . . When I
was 16 I had no way of knowing the seriousness of
this case. . . . (Docket No. 6)
Youth alone is not sufficient to demonstrate that Austin was
hampered or hindered in his ability to file a timely petition.
Minnifield v. Gomez, 3:01CV1396, 2004 U.S. Dist. LEXIS 5513, at
*7-8 (D. Conn. Mar. 29, 2004) ("The mere fact that a person is
sixteen or seventeen years of age is not an extraordinary
impediment to filing a timely petition in federal court."),
aff'd, 2005 U.S. App. LEXIS 10492 (2d Cir. June 6, 2005).
Austin was arrested in 1994. This means that when his judgment
became final on June 18, 1998, he was at least nineteen, and
perhaps twenty, years old. Austin offers no explanation as to how
his age then prevented him from determining that he had until
December 7, 2000 to file a timely habeas petition. In short,
Austin has not established the existence of an extraordinary
circumstance that would warrant equitable tolling.
(5) I'm here for a crime I didn't committ [sic] and
can prove it now if I'm given a chance. (Docket No.
A district court faced with an untimely petition "in which the
petitioner asserts his or her actual innocence [must first]
determine, in each case, whether the petitioner has presented a
credible claim of actual innocence before ruling on the legal
issues" of equitable tolling and reasonable diligence. Doe v.
Menefee, 391 F.3d 147, 161 (2d Cir. 2004) (citing Whitley v.
Senkowski, 317 F.3d 223, 225 (2d Cir. 2003)). Under the demanding standard established by the United States Supreme
Court, a petitioner seeking tolling based on actual innocence
"must support his claim `with new reliable evidence whether it
be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence that was not presented
at trial.'" Menefee, 3391 F.3d at 161 (quoting Schlup v.
Delo, 513 U.S. 298, 324 (1995)).
Austin has not advanced any evidence in support of his
conclusory assertion of actual innocence and therefore cannot
obtain equitable tolling on this basis.
The petition is untimely and the Court finds no merit in
petitioner's arguments in support of equitable tolling.
Accordingly, the petition is dismissed. In addition, because the
issues raised here are not the type of issues that a court could
resolve in a different manner, and because these issues are not
debatable among jurists of reason, the Court concludes that
petitioner has failed to make a substantial showing of the denial
of a constitutional right, 28 U.S.C. § 2253(c)(2), and
accordingly the Court denies a certificate of appealability.
The Court also hereby certifies, pursuant to
28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken
in good faith and therefore denies leave to appeal as a poor
person. Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917,
8 L. Ed. 2d 21 (1962).
Petitioner must file any notice of appeal with the Clerk's
Office, United States District Court, Western District of New
York, within thirty (30) days of the date of judgment in this
action. Requests to proceed on appeal as a poor person must be
filed with the United States Court of Appeals for the Second Circuit in
accordance with the requirements of Rule 24 of the Federal Rules
of Appellate Procedure.
IT HEREBY IS ORDERED, that the petition is DISMISSED;
FURTHER, that a certificate of appealability is DENIED;
FURTHER, that leave to appeal as a poor person is DENIED; and
FURTHER, that the Clerk of this Court is directed to take the
necessary steps to close this case.