The opinion of the court was delivered by: JOHN GLEESON, District Judge
Kareem Chapman petitions for a writ of habeas corpus,
challenging his murder conviction in state court arising out of a
stabbing incident in Brooklyn on September 6, 1996. On September
23, 2005, I held oral argument, in which Chapman participated by
telephone. As discussed below, the petition is dismissed because
it is barred by the statute of limitations. BACKGROUND
The evidence at trial established that on September 6, 1996,
Chapman had an altercation with 17-year-old Clement King in an
elevator. Chapman stabbed King 21 times with one of the blades on
a Leatherman multi-purpose work tool. King died from the stab
wounds. Just after the stabbing, before he died, King told police
that Chapman had stabbed him. At the time of his arrest,
Chapman's mother gave police the murder weapon, and Chapman made
statements to the police, including one videotaped interview,
implicating himself in the crime.
On May 22, 1997, Chapman was convicted by a jury of murder in
the second degree, and he was subsequently sentenced to fifteen
years to life in prison. Chapman appealed the judgment of
conviction to the Appellate Division, Second Department. He
contended that (1) the evidence was legally sufficient only for a
finding of intentional murder, so his conviction of "depraved
indifference" murder was erroneous; (2) the trial court
improperly precluded defense counsel from presenting testimony
regarding the victim's past violent behavior in support of the
Chapman's claim of self-defense; and (3) the trial court erred by
failing to conduct a hearing before denying Chapman's request to
have the courtroom closed.
On January 24, 2000, the Appellate Division rejected these
challenges and affirmed Chapman's conviction. People v.
Chapman, 701 N.Y.S.2d 664 (2d Dep't 2000). It held that
Chapman's sufficiency claim was unpreserved for appellate review
and, in any event, was without merit because the evidence at
trial was sufficient to support the depraved-indifference murder
conviction. Id. at 664-65 ("the jury could reasonably find that
the defendant evinced a depraved indifference to human life").
The court found that Chapman's other claims were unpreserved for
appellate review. Id. at 665. On March 13, 2000, the New York
Court of Appeals denied Chapman leave to appeal. People v. Chapman,
94 N.Y.2d 917 (2000).
More than four years later, on November 30, 2004, Chapman filed
a pro se motion in New York Supreme Court seeking to vacate the
judgment of conviction pursuant to § 440.10 of the New York
Criminal Procedure Law ("CPL"). In that motion, Chapman claimed
that (1) he was denied the effective assistance of trial counsel
because his trial counsel failed to present a self-defense claim
and failed to conduct an adequate pre-trial investigation; (2)
the trial judge erroneously failed to charge the jury regarding
self-defense; (3) the trial judge improperly excluded testimony
about the victim's reputation for violence; and (4) the evidence
was insufficient to support the conviction for
On September 19, 2005, the motion was denied. People v.
Chapman, ___ N.Y.S.2d ___, 2005 WL 2323366 (Sup.Ct. Kings Cty.
Sept. 19, 2005). The court found the motion both procedurally
barred and without merit. The former ruling resulted from the
application of CPL § 440.10. Id. at *1-4. The latter was based
in large part on Chapman's own testimony at trial about the fight
in the elevator with King. That testimony, the court concluded,
warranted a jury determination that Chapman was "someone in a
frenzied fight with no specific intention to kill, but [he acted]
with reckless disregard of the consequences of swinging a knife."
Id. at *4. Indeed, Chapman's counsel requested a manslaughter
instruction on the theory that Chapman could be found to have
acted recklessly. Id. at *4. Thus, "this case was appropriately
considered a depraved indifference murder." Id. As for the
alleged failure to investigate, the court noted in rejecting the
claim on the merits that "only two people the defendant and the
decedent were in the elevator at the time of the fight, and
thus, no other witnesses would have been available." Id. at *5. On March 15, 2005, Chapman moved in the New York State Supreme
Court, Appellate Division, for a writ of error coram nobis.
This motion is still pending. In it, Chapman argues that he was
denied the effective assistance of appellate counsel because his
appellate counsel did not raise on direct appeal the ineffective
assistance of trial counsel. Specifically, Chapman contends that
his trial counsel was ineffective because he (1) did not conduct
an adequate fact investigation in preparation for trial; (2) did
not present a claim of self-defense; (3) did not adequately
preserve Chapman's insufficiency claim; (4) failed to object or
move for a mistrial when the trial court precluded evidence
pertaining to a self-defense claim; (5) failed to demonstrate at
trial that the arresting police officers had improperly allowed
the victim's family to tamper with evidence; (6) failed to move
to dismiss the depraved indifference charge because the evidence
was sufficient to support only a finding that Chapman
intentionally killed the victim; and (7) failed to challenge the
admissibility of Chapman's pretrial statements. Chapman further
argues that his appellate counsel was ineffective for failing to
inform him, in a timely manner, that he had been denied leave to
appeal the Appellate Division's affirmance of his conviction.
On June 27, 2005, Chapman filed the instant petition with this
Court, in which he raises all of the claims he raised in his
direct appeal, his § 440 motion and his motion for a writ of
error coram nobis.
Respondent asserts that the petition is untimely. The
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
established a one-year statute of limitations in habeas corpus
proceedings, which generally begins to run on "the date on which
the judgment [becomes] final by the conclusion of direct review or the expiration of the
time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); see
Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).*fn1
Respondent correctly contends that Chapman's time to seek direct
review expired on June 11, 2000, ninety days after the New York
Court of Appeals denied Chapman leave to appeal his conviction.
Since Chapman waited nearly four and one-half years after that
date before filing his § 440 motion, respondent contends that the
petition here (which was filed on June 27, 2005) must be
dismissed as untimely.*fn2
Chapman asserts that his claim should not be time-barred
because even though the New York Court of Appeals denied leave to
appeal on March 13, 2000, he did not receive notice of that fact
until November 4, 2004.
Equitable tolling of AEDPA's limitations period is available
only in "rare and exceptional circumstances," Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), which prevent the
petitioner "in some extraordinary way from exercising his
rights." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)
(quotation marks omitted); see also Pace v. DiGuglielmo,
125 S.Ct. 1807, 1815 n. 8 (2005) (assuming without deciding that
equitable tolling is available where petitioner has pursued his
rights diligently and some extraordinary circumstance prevented
him from filing on time). Even where extraordinary circumstances
exist, a petitioner must "demonstrate a causal relationship
between the extraordinary circumstances on which the claim for
equitable tolling rests and the lateness of his filing."
Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d. Cir. 2001)
(quotation marks omitted).
As a general rule, attorney error does not warrant equitable
tolling. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.
2001); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000).
Extreme misbehavior by counsel will warrant an exception to that
rule, but only where counsel's conduct is far more egregious than
the conduct at issue here. See Baldayaque v. United States,
338 F.3d 145, 152 (2d Cir. 2003) (among other things, attorney failed
to file a § 2255 petition despite client's direction to do so,
and failed to speak to, meet, or make any effort even to locate
his client). In short, the alleged failure to send Chapman a copy
of the order denying leave to appeal is not the type of attorney
error that constitutes an extraordinary circumstance warranting
Moreover, even if it were, Chapman failed to act with the
reasonable diligence required of him. When asked at oral argument
what took him so long to file his collateral attacks on his
conviction, he responded:
This is kind of odd. Within time, you know, my
appointed attorney at this time I was putting so
much faith in him, so I was actually writing him
letters, things of that nature and I was actually
lax, like I wouldn't pursue it, I was back and forth,
getting locked up, things happening in the family, so
it was a lot of objective circumstances keeping me
But it seems that, you know, as I start going more
and more to the library, you know, they have jail
lawyers, things of that nature, and we started they
started telling me about this and giving me more
information. It kind of made me aware. After four and a half years, I felt so like, wow, I
wasted all this time and didn't even realize . . .
Tr. September 23, 2005, at 3-4. In short, Chapman did not
exercise any ...