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October 4, 2005.

J. CONWAY, Respondent.

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 depraved-indifference murder.

  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 equitable tolling.

  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 back.
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 ...

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