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ALVARADO v. STATE

United States District Court, S.D. New York


August 17, 2005.

JOSE LUIS ALVARADO, Petitioner,
v.
STATE OF NEW YORK, Respondent.

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE HAROLD BAER, JR., U.S.D.J.:

Jose Luis Alvarado brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of first degree assault following a jury trial. Mr. Alvarado contends: (1) that he was convicted on the basis of evidence obtained pursuant to an unlawful arrest, as well as improperly admitted hearsay evidence; (2) that the prosecution failed to disclose exculpatory evidence; (3) that the verdict was against the weight of the evidence; and (4) that he received ineffective assistance of counsel. The respondent opposes the petition on the merits and also argues that the petition should be dismissed as time-barred by the one-year period of limitation imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). For the reasons that follow, I recommend that the petition be dismissed as time-barred.

  Background

  On July 24, 1997, a jury in New York State Supreme Court, New York County, found Mr. Alvarado guilty of Assault in the First Degree in violation of New York Penal Law § 120.10(1). People v. Alvarado, 294 A.D.2d 155, 744 N.Y.S.2d 622 (1st Dep't 2002). (Brief For Defendant-Appellant dated Dec. 21, 2001 ("Appellate Brief"), attached as Exh. A to Declaration of Michael P. King dated July 19, 2004 ("King Decl."), at 1). The conviction stemmed from a stabbing that occurred on the night of August 21, 1996. (Amended Petition dated Aug. 19, 2004, at 2; Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus, dated July 19, 2004 ("Resp. Memo."), at 1-2). On August 14, 1997, Mr. Alvarado was sentenced as a second violent felony offender to a determinate term of eleven years in prison. (King Decl., Exh. D; Resp. Memo. at 1). The Appellate Division, First Department affirmed the conviction on May 9, 2002. (King Decl., Exh. D). Thereafter, the New York Court of Appeals denied leave to appeal on August 22, 2002. People v. Alvarado, 98 N.Y.2d 708, 749 N.Y.S.2d 5 (2002). On August 26, 2002, Mr. Alvarado's appellate attorney, Rebecca Jacobstein, notified him of this determination in the following letter:

I am sorry to inform you that the application for permission to appeal to the Court of Appeals in your case has been denied. I have enclosed is [sic] a copy of the court's certificate.
This means that the Court of Appeals has decided not to hear your case and the direct appeal of your conviction is concluded. I hope that you are having greater success in your 440 motion. If you have any questions about the certificate denying leave to appeal, please feel free to contact me. Unfortunately, there is nothing else I can do to get your conviction reversed.
(Letter of Rebecca A. Jacobstein dated August 26, 2002 ("Jacobstein Letter"), attached to Letter of Labe M. Richman dated May 25, 2005 ("Richman Letter")). Mr. Alvarado did not thereafter seek a writ of certiorari from the United States Supreme Court. (Amended Petition at 3).

  Mr. Alvarado executed his initial habeas corpus petition on November 24, 2003, and it was filed with the Pro Se Office in the Eastern District of New York on December 10, 2003. (King Decl. at 1). On February 19, 2004 the case was transferred to this district and, with the permission of the court, Mr. Alvarado amended his petition on August 19, 2004. (Amended Petition at 7; King Decl. at 1; Letter of Jose Luis Alvarado dated June 1, 2004 ("Alvarado Letter"), endorsed on June 23, 2004).

  For the purpose of further developing the record pertinent to a determination of the instant petition, I appointed counsel to represent Mr. Alvarado on January 25, 2005. (Order dated January 25, 2005). Thereafter, the petitioner submitted an affidavit addressing the timeliness of his habeas corpus petition. (Order dated June 10, 2005; Affidavit of Luis Alvarado dated June 14, 2005 ("Alvarado Aff.")). Discussion

  A. AEDPA Statute of Limitations

  The respondent argues that the petitioner's habeas corpus petition is time-barred under 28 U.S.C. § 2244(d)(1). That provision imposes a one-year period of limitation for habeas corpus petitions that runs from the latest of:

(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 and 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 Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).

  Mr. Alvarado's conviction became final on November 20, 2002, upon the expiration of the ninety-day period during which he could have sought a writ of certiorari from the United States Supreme Court. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003) (deeming petitioner's conviction final ninety days after date of order denying application for leave to appeal to New York Court of Appeals); Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002). As a result, the period of limitation began to run on that date and Mr. Alvarado had until November 20, 2003 to file his petition. Although Mr. Alvarado was represented by counsel during his appeal, he filed the instant petition pro se. (King Decl. at 1; Amended Petition at 7). Thus, pursuant to the "prison mailbox rule," Mr. Alvarado is deemed to have filed his initial petition on November 24, 2003, the date on which he executed the petition and the earliest date on which he could have given it to prison authorities to be mailed. See Houston v. Lack, 487 U.S. 266, 270 (1988) (holding pro se petitioner's notice of appeal filed upon delivery to prison authorities for forwarding to court clerk); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (extending prison mailbox rule to habeas corpus petitions).

  Although Mr. Alvarado filed his petition over a year after his conviction became final, the AEDPA provides that the period of limitation shall be tolled while a "properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). While the respondent asserts that neither the District Attorney's office nor the New York County Supreme Court has any record of such a motion in their files (Resp. Memo. at 11-12), Mr. Alvarado indicated in his petition that he filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10(h). (Amended Petition at 3, 4). In his affidavit addressed to the timeliness of his petition, however, he does not mention any such motion; instead, he states that he was initially confused as to whether or not he should file a § 440 motion, but eventually found someone to assist him with the instant habeas corpus petition. (Alvarado Aff., ¶ 1). In addition, Mr. Alvarado's current appointed counsel does not rely on any post-conviction motion and instead concedes that the "respondent correctly alleged that [Mr. Alvarado] missed the statute of limitations[.]" (Richman Letter at 1). Together, these statements indicate that Mr. Alvarado never filed a motion pursuant to CPL § 440.

  As a result, the limitations period was not tolled during the pendency of any post-conviction motions and, instead, it ran for 369 days from November 21, 2002 to November 24, 2003. Thus, as both the petitioner and the respondent now acknowledge, Mr. Alvarado was four days late in filing his petition for a writ of habeas corpus. (Richman Letter at 1; Resp. Memo. at 11). Consequently, Mr. Alvarado's petition is time-barred.

  B. Equitable Tolling

  Mr. Alvarado also asserts that he is eligible for equitable tolling of the limitations period because, following the conclusion of his direct appeal, his appellate lawyer did not respond to his inquiry regarding filing a post-conviction motion, and he was thereafter unsure of how to proceed with his case. (Alvarado Aff., ¶ 1; Richman Letter at 1-2). Because the Second Circuit has construed the limitations period set out in 28 U.S.C. § 2244(d)(2) as a statute of limitations rather than as a jurisdictional bar, a court may equitably toll this period if "rare and exceptional circumstances" prevent a petitioner from filing promptly. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); see also Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (noting that limitations period can be equitably tolled as "`a matter of fairness' where a plaintiff has been `prevented in some extraordinary way from exercising his rights'") (citations omitted).

  To qualify for equitable tolling, a petitioner first must establish that he faced "rare and extraordinary circumstances" and then must show that these circumstances prevented him from filing his petition. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). This requires that a petitioner demonstrate a "causal relationship between the extraordinary circumstances on which the claim for tolling rests and the lateness of [his] filing." Id. Additionally, a petitioner must prove that he acted with "reasonable diligence throughout the period he seeks to toll." Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004) (quoting Smith, 208 F.3d at 17). Even where circumstances are sufficiently extraordinary to justify equitable tolling, a petitioner's failure to use reasonable diligence to pursue his claim destroys the causal link between the extraordinary circumstances and the tardiness of the petition. See Valverde, 224 F.3d at 134. Thus, extraordinary circumstances do not "prevent" the timely filing of a petition where the petitioner could have filed within the limitations period, but fails to do so. See id.

  Equitable tolling has been granted only in the most compelling circumstances. See id. at 133 (confiscation of petitioner's draft petition and all related legal papers days before filing deadline warranted equitable tolling of limitations period); Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003) (equitable tolling justified where petitioner's attorney disregarded specific direction to file habeas petition, told petitioner's wife that it was "too late" to file when fourteen months remained until AEDPA deadline, did no legal research while representing petitioner, and made no effort to locate petitioner after a single, unsuccessful attempt). While some attorney conduct might be so outrageous and incompetent as to warrant equitable tolling, ordinary errors made by counsel, even where such errors contribute to a petitioner's failure to meet a filing deadline, do not justify equitable tolling of the limitations period. See Smaldone v. Senkowski, 273 F.3d 133, 135 (2d Cir. 2001) (rejecting petitioner's request for equitable tolling where his attorney failed to file within the limitations period because counsel believed that pending post-conviction motions reset, rather than tolled, AEDPA's period of limitation). Likewise, neither the problems related to being incarcerated nor a petitioner's pro se status justify equitable tolling of the limitations period. See Baldayaque, 338 F.3d at 152; Smith, 308 F.3d at 18.

  Mr. Alvarado's confusion as to his legal options after his appellate attorney did not respond to his inquiry is no basis for granting equitable tolling. Ms. Jacobstein's August 26, 2002 letter to Mr. Alvarado clearly indicated that both the direct appeal of his conviction and her involvement in his case were concluded. (Jacobstein Letter). In addition, her reference to "your 440 motion" notified Mr. Alvarado that such a motion might possibly afford him relief from his conviction. (Jacobstein Letter). Although there is no evidence in the record that Ms. Jacobstein apprised Mr. Alvarado of the possibility of federal relief and of the necessity of filing his petition for habeas corpus within the one-year limitations period, an attorney's failure to inform her client of his federal habeas rights and limitations period is not conduct that is "sufficiently egregious" to toll the statute of limitations. See Baldayaque, 338 F.3d at 152-53; Nash v. McGinnis, No. 04 Civ. 9496, 2005 WL 1719871, at *5 (S.D.N.Y. July 22, 2005). Thus, neither Ms. Jacobstein's failure to assist Mr. Alvarado in filing his post-conviction motion nor her failure to advise him of the possibility of federal relief presents an "extraordinary circumstance" justifying equitable tolling of the limitations period.

  In addition, although Mr. Alvarado may have been confused as to how to proceed, neither lack of education nor ignorance of the law is sufficient to justify equitable tolling. See Nash, 2005 WL 1719871, at *3; Chen Ren Jie v. Phillips, No. 04 Civ. 9961, 2005 U.S. Dist LEXIS 7953, at *6 (S.D.N.Y. April 25, 2005). Thus, Mr. Alvarado's unfamiliarity with the law and confusion as to his options does not justify equitable tolling.

  Lastly, even if Ms. Jacobstein's conduct or the petitioner's confusion constituted an "extraordinary circumstance," equitable tolling is not warranted because the petitioner failed to act with reasonable diligence. See Nash, 2005 WL 17198781 at *3. As noted above, Mr. Alvarado essentially contends that he did not file his petition for over a year because he did not know how to proceed with his case and he did not have anyone to help him. (Alvarado Aff., ¶ 1). It is well settled that a prisoner does not have a constitutional right to counsel when collaterally attacking a conviction. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("the right to counsel extends to the first appeal of right, and no further"); Diaz v. Conway, No. 04 Civ. 5062, 2005 WL 1773631, at *1 (S.D.N.Y. July 26, 2005) (no constitutional right to counsel in habeas corpus proceeding). Ms. Jacobstein notified Mr. Alvarado within four days of the New York Court of Appeals' order that his direct appeal was concluded. (King Decl., Exh. G; Jacobstein Letter). Mr. Alvarado, however, notes only one attempt to contact Ms. Jacobstein during the following year and three months. (Alvarado Aff. at 1). In addition, he fails to demonstrate that he made any effort to educate himself on the law or to determine how to proceed with his case. (Alvarado Aff. at 1). Thus, the petitioner is unable to show that he exercised reasonable diligence and, as a result, equitable tolling is not warranted in this case.

  Conclusion

  For the reasons set forth above, I recommend that Mr. Alvarado's petition for a writ of habeas corpus be dismissed as time-barred. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 62, 6(a), and 6(e)of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Harold Baer, Jr., Room 2230, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

20050817

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