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FOSTER v. PHIILLIPS

United States District Court, S.D. New York


November 3, 2005.

JOSEPH FOSTER, Petitioner,
v.
WILLIAM PHIILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

MEMORANDUM AND ORDER

INTRODUCTION

This habeas corpus petition was referred to me by the Honorable Michael B. Mukasey, Chief United States District Judge. Pro se petitioner Joseph Foster ("Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1998 conviction and sentence in the New York Supreme Court, New York County. Respondent William Phillips ("Respondent") has moved to dismiss the petition as barred by the applicable statute of limitations.

  As discussed in greater detail below, this Court has considered the statute of limitations argument set forth in Respondent's motion to dismiss the petition, and — assuming the accuracy of the chronology recounted by Respondent — finds the argument persuasive. The Court, however, is not prepared at this time to recommend to Judge Mukasey that the petition be dismissed, because a key date on which Respondent relies for its statute of limitations calculation (specifically, the date when Petitioner filed a motion pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction) is neither alleged in the petition nor supported by adequate documentation. Instead, Respondent merely states this date in its Memorandum of Law, without any citation, and without providing any evidence to confirm the accuracy of this date. (See Respondent's Memorandum of Law, dated July 30, 2003 ("Resp. Mem.") (Dkt. 6.), at 5.)

  Therefore, as set forth below, Respondent is directed to supplement its motion to dismiss the petition with an appropriate affidavit or declaration, attaching Petitioner's Section 440.10 motion as an exhibit. This should enable the Court to take judicial notice of the date on which that motion was deemed filed for purposes of calculating the habeas limitations period,*fn1 and to make a recommendation to Judge Mukasey on that basis. Without reviewing the motion, however, this Court cannot resolve the statute of limitations question.

  PROCEDURAL HISTORY

  Given that Respondent has moved for dismissal of the petition solely on statute of limitations grounds, it is worth noting that Respondent has not filed with this Court any part of the state court record as support for the procedural chronology it uses in its memorandum to calculate the limitations period. Nor does Respondent base its calculation on dates alleged in the petition; in fact, in the petition, Petitioner lists certain dates as "unknown" (including the date he was denied leave to appeal to the Court of Appeals from the Appellate Division's affirmance of his conviction, and the date his collateral motion to vacate the judgment was denied), and alleges other dates that differ from those stated by Respondent (including the date of his conviction, and the date the judgment of conviction was affirmed by the Appellate Division). Although some of the dates stated in Respondent's Memorandum of Law can be confirmed by published reports of state court decisions, others cannot be determined by this Court based on publicly available information. To the extent the Court has been able to discern the procedural history of this case, it is set out below.

  A. Conviction and Direct Appeal

  According to Respondent, Petitioner was convicted by a jury in February 1998*fn2 of one count of Murder in the Second Degree, in violation of New York Penal Law § 125.24[1], for which he was sentenced to an indeterminate prison term of 25 years to life, and one count of Attempted Murder in the Second Degree, in violation of New York Penal Law §§ 110.00 and 125.25[1], for which he was sentenced to a concurrent prison term of 25 years. (Resp. Mem. at 1.) Following his sentence, Petitioner was incarcerated at the Green Haven Correctional Facility ("Green Haven") in Stormville, New York. (Pet. at 8.)

  Although this Court has not been provided with a copy of the trial transcript, Respondent states that Petitioner's conviction was based on the shooting of two people, Jerry Venson ("Venson"), who died as a result, and Khalil Curtis ("Curtis"), who was wounded. (See Resp. Mem. at 2.) According to Respondent, Petitioner shot Venson and Curtis in Manhattan on October 30, 1996, in the presence of at least six witnesses. (See id. at 2, 11.) Respondent asserts that these eyewitnesses identified him at trial as the shooter. (See id. at 11.)

  Petitioner apparently filed a timely appeal with the New York State Supreme Court, Appellate Division, First Department, which affirmed the judgment of conviction. Although the Petition alleges that the affirmance was dated April 10, 2001 (see Pet. ¶ 9(c)), the published opinion confirms Respondent's assertion that the opinion was issued on April 5, 2001 (see Resp. Mem. at 4; People v. Foster, 282 A.D.2d 226 (1st Dept. 2001)).

  According to Respondent, Petitioner applied for leave to appeal to the New York Court of Appeals on May 16, 2001. (Resp. Mem. at 4.) On July 12, 2001, that application was denied. See People v. Foster, 96 N.Y.2d 901 (2001); see also Resp. Mem. at 4.

  B. Collateral Review

  Respondent states that, by pro se papers dated February 28, 2002, Petitioner moved to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. (Resp. Mem. at 5.) Although Petitioner confirms in his petition that he filed a Section 440.10 motion (see Pet. ¶ 11), he does not state when that petition was filed. Moreover, Respondent has provided no support for the February 28, 2002 date.

  Respondent further states that the trial court denied Petitioner's Section 440.10 motion by Order dated April 9, 2002. On July 25, 2002, the Appellate Division denied Petitioner leave to appeal from this ruling. See People v. Foster, No M-2664, 2002 N.Y. App. Div. LEXIS 7720 (1st Dep't July 25, 2002). Apparently, Petitioner then sought leave to appeal to the Court of Appeals, which dismissed the application for leave on August 30, 2002. See People v. Foster, 98 N.Y.2d 710, 749 N.Y.S.2d 7 (2002).

  C. Federal Habeas Petition

  Petitioner filed his habeas petition in this Court on May 20, 2003.*fn3 (Dkt. 1.) In a Memorandum attached to his petition, Petitioner appears to challenge his conviction and sentence on the grounds that (1) the indictment was defective and improperly amended by the trial court; (2) the prosecutor engaged in misconduct before the grand jury; (3) the trial court lacked jurisdiction to hear the case and impose a sentence because the indictment was defective; (4) Petitioner was subjected to an enhanced sentence based on erroneous information and was denied a fair opportunity to challenge that information; (5) the purported errors in sentencing, combined with the fact that the sentencing transcript was missing, required that his sentence be vacated; (6) Petitioner was denied the effective assistance of trial counsel; and (7) the prosecutor committed a Brady*fn4 violation by improperly redacting documents regarding Petitioner's line-up identification. (See Memorandum of Points and Authorities in Support of Petitioner's Motion for Post Conviction Relief Pursuant to Title 28 of the United States Code § 2254 ("Pet. Mem.") at 3-6 (attached to Pet.).)

  On May 30, 2003, the Honorable Michael B. Mukasey referred the matter to me for a report and recommendation. (Dkt. 2.)

  On July 30, 2003, Respondent filed a motion to dismiss the petition as time-barred. (See Dkt. 5 (Notice of Appearance, attaching Notice of Motion and Affirmation in Support of Pre-Answer To Dismiss); see also Dkt. 6 (Memorandum of Law).) Respondent, however, submitted no portion of the state court record in connection with that motion. Petitioner has not filed any opposition to Respondent's motion.

  DISCUSSION

  I. APPLICABLE LEGAL STANDARDS

  A. Motion To Dismiss

  Although Respondent has cited no rule or governing standard for its motion to dismiss, the Court assumes that the motion has been brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6) motions are permissible in habeas proceedings commenced under 28 U.S.C. § 2254, as such motions are not inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts. See Fed.R.Civ.P. 81(a)(2) ("These rules are applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in . . . the Rules Governing Section 2254 Cases."); see also Williams v. Breslin, 274 F. Supp. 2d 421, 424-25 (S.D.N.Y. 2003) (granting 12(b)(6) motion to dismiss habeas petition on statute of limitations grounds); Purdy v. Bennett, 214 F. Supp. 2d 348, 349-50 (S.D.N.Y. 2002) (same). This Court, however, cannot grant a motion to dismiss solely on the ground that it is unopposed. Rather, where a Rule 12(b) motion has not been opposed, this Court must review the merits of the motion and determine whether the movant has carried its burden. See McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000) (where a complaint states a claim on which relief can be granted, failure to respond to a 12(b)(6) motion to dismiss does not warrant dismissal); Sherlock v. Wal-Mart Store # 2156, No. 04 Civ. 1180 (DRH) (JO), 2005 U.S. Dist. LEXIS 9050, at *3-4 (E.D.N.Y. May 2, 2005) (district court should not grant a motion to dismiss solely because the plaintiff fails to respond to it).

  Moreover, although Rule 12(b)(6) does not give a district court the authority to consider matters outside the pleadings, a court may take judicial notice of documents filed in other courts without converting a motion to dismiss into one for summary judgment under Rule 56. Nazzaro v. Balber, No. 05 Civ. 2172 (CSH), 2005 U.S. Dist. LEXIS 20673, at *15-16 (S.D.N.Y. Sept. 16, 2005) (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)); see also In re MetLife Demutualization Litig., 156 F. Supp. 2d 254, 259 (E.D.N.Y. 2001) (holding that court could examine contents of opinion by the New York Superintendent of Insurance, even where not incorporated by reference in complaint, without converting motion to dismiss into one for summary judgment, as the document was a public record and thus subject to judicial notice).

  B. Statute of Limitations

  Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-13, 110 Stat. 1214 ("AEDPA"), a petitioner must file his petition within a one-year limitations period beginning on the latest of four dates, the relevant one here being "the date on which the judgment became 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 also Williams v. Artuz, 237 F.3d 147, 150, 151 (2d Cir. 2001) (citations omitted) (judgment becomes "final" for purposes of Section 2244 upon "the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — [the expiration of] the time to seek direct review via certiorari").*fn5

  The limitations period is automatically tolled, however, during the time that a properly filed application for state post-conviction or other collateral review is pending. See 28 U.S.C. § 2244(d)(2). An application for state review is "pending" until it has achieved final review through the state's post-conviction procedures. See Carey v. Saffold, 536 U.S. 214, 220 (2002). In the case of a motion to vacate a conviction under N.Y.C.P.L. § 440.10, the statute of limitations is tolled from the date the motion is filed to the date it is decided by the trial court, see, e.g., King v. Greiner, No. 02 Civ. 5810 (DLC), 2003 U.S. Dist. LEXIS 225, at *2 (S.D.N.Y. Jan. 7, 2003), as well as during the pendency of an application for leave to appeal from the trial court's denial of that motion, see Carey, 536 U.S. 214. Nonetheless, with respect to acheiving "final review" of a Section 440.10 motion, the denial of such a motion can be appealed only to the Appellate Division; no appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division. Klein v. Harris, 667 F.2d 282, 283-84 (2d Cir. 1981). Thus, once the Appellate Division denies leave to appeal the trial court's denial of a Section 440.10 motion, a petitioner has reached "the end of the road within the state system" with respect to that motion. Id. at 284 (citation omitted). As a result, the limitations period under AEDPA is not tolled during the pendency of an application to the Court of Appeals for leave to appeal the Appellate Division's decision on a Section 440.10 motion. See Rosario v. Bennett, No. 01 Civ. 7142 (RMB) (AJP), 2002 U.S. Dist. LEXIS 24495, at *45 (S.D.N.Y. Dec. 20, 2002) (citing cases).

  Under certain circumstances, the AEDPA limitations period may also be equitably tolled. See Acosta v. Artuz, 221 F.3d 117, 119 (2d Cir. 2000). In general, equitable tolling is only available where the petitioner can show that "extraordinary circumstances prevented him from filing his petition on time," and that he "acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citations omitted). Further, the burden is on Petitioner to show that he is entitled to equitable tolling. See, e.g., Tran v. Alfonse Hotel Corp., 281 F.3d 23, 37 (2d Cir. 2002).

  II. TIMELINESS OF PETITION

  In this case, published opinions show that the judgment convicting Petitioner was affirmed by Order of the Appellate Division on April 5, 2001, People v. Foster, 282 A.D.2d 226 (1st Dept. 2001), and that the Court of Appeals denied Petitioner's application for leave to appeal from that Order on July 12, 2001, People v. Foster, 96 N.Y.2d 901 (2001). Petitioner apparently did not elect to file a petition for certiorari in the United States Supreme Court. Thus, the judgment against Petitioner became final for AEDPA purposes on October 10, 2001, which was the last day of Petitioner's 90-day period to file a certiorari petition.

  The AEDPA limitations period was then automatically tolled during the pendency of Petitioner's Section 440.10 motion for collateral review of the judgment. See 28 U.S.C. § 2244(d)(2). Here, Respondent argues that the limitations period was tolled for 147 days, from February 28, 2002, the date on which Petitioner purportedly filed his Section 440.10 motion, until July 25, 2002, the date on which the Appellate Division denied Petitioner's application for leave to appeal the denial of that motion. (Resp. Mem. at 5-6, 8-9.) If Respondent is correct that this was the period during which Petitioner's Section 440.10 motion was pending, then the limitations period ran from October 10, 2001 to February 28, 2002 (141 days), was then tolled from February 28, 2002 to July 25, 2002 during the pendency of the Section 440.10 proceeding, and then ran again from July 25, 2002 to May 20, 2003, the date the habeas petition was filed (299 days).

  Thus, if the Court were to accept Respondent's chronology, Petitioner waited 440 (141 299) days, or 75 days beyond the permissible one-year limitations period, to file his habeas petition.

  Petitioner advances only one contrary argument as to how the limitations period should be calculated, suggesting that the judgment against him did not become "final," and thus commence the limitations period, until August 30, 2002, when the New York Court of Appeals denied his application for leave to appeal the denial of his Section 440.10 motion. (See Pet. Mem. at 2.) This argument has no merit, as the relevant provisions of AEDPA are clear that the limitations period begins to run from "the date on which the judgment became 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) (emphasis added), not from the conclusion of collateral review. Further, as discussed above, although the AEDPA statute of limitations is tolled during the pendency of a Section 440.10 motion, that tolling period ends with a determination (or denial of leave to appeal) by the Appellate Division, not the Court of Appeals. (See supra § I(B) at 8-9.)

  Petitioner also suggests that, regardless of their calculation, the "AEDPA timeframes are irrelevant" in his case, because his petition "addresses questions of actual innocence." (Pet. Mem. at 2.) Yet even if a showing of actual innocence could support the equitable tolling of the limitations period,*fn6 Petitioner has not made such a showing. In order to demonstrate actual innocence, a petitioner must put forward "new reliable evidence that was not presented at trial" and show that, in light of that evidence, "it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Lucidore v. New York Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (citation omitted). In this case, Petitioner's claim of actual innocence stems solely from his allegation that, two weeks after the shooting of which Petitioner was accused, a witness gave a statement to the police in which he identified another person as the shooter. (Pet. Mem. at 15.) This evidence is not "new" and, in any event, is apparently contrary to the testimony of numerous other witnesses. See Foster, 282 A.D.2d at 226. Thus, on the record before the Court, Petitioner's actual innocence claim cannot justify equitable tolling of the statute of limitations. In sum, it appears that the petition should be dismissed on statute of limitations grounds — assuming that Respondent's proffered chronology is correct. As noted at the outset of this opinion, however, this Court is unable to draw that conclusion from the petition itself, or from Respondent's submission, neither of which offers any basis for Respondent's assertion that Petitioner filed his Section 440.10 motion on February 28, 2002, a date which is a necessary part of the statute of limitations calculation. Accordingly, Respondent is directed to supplement its submission to provide support for that date.

  CONCLUSION

  For all the foregoing reasons, Respondent is directed to supplement its motion to dismiss the petition, by serving and filing, no later than December 2, 2005, an appropriate affidavit or declaration, attaching Petitioner's Section 440.10 motion as an exhibit. Petitioner may respond to that submission, as well as to any aspect of this Memorandum and Order, no later than January 6, 2006. The Court will then issue a Report and Recommendation to Judge Mukasey as to whether the petition should be dismissed on statute of limitations grounds.

  SO ORDERED.

20051103

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