United States District Court, S.D. New York
November 3, 2005.
JOSEPH FOSTER, Petitioner,
WILLIAM PHIILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.
The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge
MEMORANDUM AND ORDER
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.
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, 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, 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
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.
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
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
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
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
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.
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.
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