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Forbes v. Walsh


January 6, 2006


The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge


To the Honorable Lewis A. Kaplan, United States District Judge

Pro se petitioner Roger Forbes seeks a writ of habeas corpus from his March 20, 1997 conviction in Supreme Court, Bronx County, of second degree murder and second degree manslaughter and sentence of twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.)

For the reasons set forth below, Forbes' petition should be denied as time-barred by the AEDPA's one year statute of limitations.


The First Department affirmed Forbes' conviction on September 23, 1999 and the New York Court of Appeals denied leave to appeal on February 4, 2000. People v. Forbes, 264 A.D.2d 631, 696 N.Y.S.2d 10 (1st Dep't 1999), appeal denied, 94 N.Y.2d 903, 707 N.Y.S.2d 387 (2000). Forbes did not file a petition for a writ of certiorari in the United States Supreme Court. (Dkt. No. 2: Pet. ¶ 10(g).)

On or about March 19, 2001, Forbes filed a motion for a writ of error coram nobis in the First Department. (Dkt. No. 10: A.D.A. Won Aff. ¶ 7 & Ex. 3: Forbes Coram Nobis Papers, notarized March 19, 2001.)*fn1 The First Department denied the motion on March 5, 2002. People v. Forbes, 292 A.D.2d 881, 741 N.Y.S. 2d 145 (1st Dep't 2002) (table). (See also Pet. ¶ 12(a)(6).)

Forbes filed a C.P.L. § 440 motion in Supreme Court, Bronx County, on or about September 13, 2002. (A.D.A. Won Aff. ¶ 9 & Ex. 4: Forbes C.P.L. § 440 Motion Papers, with an affidavit of service dated 9/13/02.)*fn2 The Supreme Court, Bronx County denied Forbes' C.P.L. § 440 motion on November 7, 2002. (A.D.A. Won Aff. ¶ 10; Pet. ¶ 12(b)(7).) The First Department denied leave to appeal on April 29, 2003. (A.D.A. Won Aff. ¶ 11; see Pet. ¶ 12(d).)

Forbes' federal habeas corpus petition is dated February 2, 2004 and was received by the Court's Pro Se Office on February 4, 2004. (Pet. at pp. 1, 6.)

On June 28, 2004, then-Chief Judge Mukasey ordered Forbes to show cause why his petition was not time barred. (Dkt. No. 3.) Forbes' response affidavit stated that he was not aware of the AEDPA limitations period and had relied on inmate clerks to help him with his legal work. (Dkt. No. 4: Forbes Aff.)

On May 16, 2006, the case was re-assigned to Judge Kaplan, who directed the State to respond to Forbes' petition. (Dkt. Nos. 5-6.) After receiving extensions, on or about October 30, 2006, the State moved to dismiss Forbes' petition as time barred. (Dkt. No. 10.) On January 5, 2007, Judge Kaplan referred the matter to me for a Report and Recommendation. (Dkt. No. 12.)


A. Forbes' Habeas Petition Was Untimely

The AEDPA provides for a one-year limitation period:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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; . . . . (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

Forbes' conviction became final, and the AEDPA's one-year limitations period began to run, ninety days after the New York Court of Appeals denied leave to appeal, i.e., ninety days after February 4, 2000, or May 4, 2000. E.g., Williams v. Artuz, 237 F.3d 147, 150-51 & n.1 (2d Cir.), cert. denied, 534 U.S. 924, 122 S.Ct. 279 (2001).*fn3

The pendency of a state collateral proceeding (such as a C.P.L. § 440 motion or coram nobis motion) tolls the one year period, 28 U.S.C. § 2244(d)(2), but it does not re-start the limitation period. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000).*fn4

From May 4, 2000 until March 19, 2001 when Forbes filed his coram nobis motion, 319 days of the limitation period ran. Thus, Forbes only had 46 days left to timely file his habeas petition. When the First Department denied his coram nobis motion on March 5, 2002, the limitation period again started to run, and was not stopped again until the September 13, 2002 filing of Forbes' C.P.L. § 440 motion -- another 192 days, which is well beyond the 46 days left for the one year limitation period.

Even if one accepted all of Forbes' dates for his state collateral proceedings, his habeas petition still is time barred. From May 4, 2000 until December 29, 2000, when Forbes claims he filed his coram nobis petition, 239 days of the 365 day limitation period ran, leaving 126 days within which to file his habeas petition. The AEDPA limitations period was stayed until the First Department ruled, and also stayed by Forbes' C.P.L. § 440 motion, which he claims was filed on August 13, 2001 (before the First Department's March 3, 2002 ruling on Forbes' coram nobis application). When the Supreme Court denied the § 440 motion and the First Department denied leave to appeal on April 29, 2003, the limitation period again started to run. The period from April 29, 2003 until Forbes filed his federal habeas petition on February 2, 2004, however, was 279 days, greater than the remaining 126 days he had to file under the one-year limitation period.

Thus, Forbes' habeas petition is untimely.

B. Equitable Tolling Is Not Appropriate In Forbes' Case

Forbes offers two arguments as to why his petition nevertheless should be heard on the merits.

First, Forbes points to the language in then-Chief Judge Mukasey's "sixty day order," requiring Forbes to explain why his petition was not time barred, which stated:

If petitioner fails to comply with this order within the time allowed, the instant petition will be dismissed as time-barred. If an affirmation is timely filed by petitioner, it shall be reviewed and then, if proper, the petition shall be reassigned to a district judge in accordance with the procedures of the Clerk's office. (Dkt. No. 3: 6/28/04 Order at 4.) Forbes argues that since he submitted an affidavit and the case was reassigned to Judge Kaplan, the Court has already determined that his "Habeas Petition is not time-barred." (Forbes 11/28/06 Aff. at 2.)

Forbes is not correct -- despite the language in the form sixty day order, if an affidavit is filed by a petitioner, the case is reassigned to a District Judge without further review. See, e.g., Saldana v. Artuz, 99 Civ. 5089, 2000 WL 1346855 at *3 (S.D.N.Y. Sept. 19, 2000) (rejecting petitioner's similar res judicata argument because it misconstrued the chief judge's form 60 day order); cf. Fletcher v. Runyon, 980 F. Supp 720, 721 n.2 (S.D.N.Y. 1997) (Rakoff, D.J. & Peck, M.J.) (rejecting plaintiff's claim "that his suit must have been timely filed because the Clerk's Office accepted the papers for filing."). In any event, even if that were not so, the Court has the discretion to re-examine the issue when, as here, it is raised by the State. The Court has done so and found Forbes' habeas petition to be untimely.

Second, Forbes claims that he was ignorant of the law and relied on inmate clerks to help him with his collateral state proceedings and federal habeas petition. (Dkt. No. 4: Forbes Aff.) In essence, Forbes is seeking equitable tolling of the AEDPA limitations period.

The Second Circuit has held that the AEDPA limitations period is subject to equitable tolling, but only in "extraordinary circumstances." See, e.g., Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003). The Second Circuit has explained:

"To equitably toll the one-year limitations period, a petitioner must show that extraordinary circumstances prevented him from filing his petition on time, and he must have acted with reasonable diligence throughout the period he seeks to toll. To show that extraordinary circumstances prevented him from filing his petition on time, petitioner must demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances. Hence, if the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing."

Baldayaque v. United States, 338 F.3d at 150 (quoting Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001), cert. denied, 536 U.S. 925, 122 S.Ct. 2593 (2002)); see also, e.g., Lopez v. United States, 180 Fed. Appx. 305, 305-06 (2d Cir. 2006); Muller v. Greiner, 139 Fed. Appx. 344, 345 (2d Cir. 2005); Doe v. Menifee, 391 F.3d 147, 159 (2d Cir. 2004), cert. denied, 126 S.Ct. 489 (2005); Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Jones v. Fischer, 03 Civ. 8313, 2004 WL 2943624 at *1-2 (S.D.N.Y. Dec. 21, 2004) (Peck, M.J.); Marengo v. Conway, 342 F. Supp. 2d 222, 230 (S.D.N.Y. 2004); Williams v. Breslin, 03 Civ. 1848, 2004 WL 2368011 at *5 (S.D.N.Y. Oct. 20, 2004).

Forbes' arguments for equitable estoppel -- that he was ignorant of the law and had to rely on other inmates for help -- are not "extraordinary," as they apply to most inmates. The courts have uniformly found that these reasons do not justify equitable tolling. See, e.g., United States v. Banks, 06 Civ. 0786, 2006 WL 2927235 at *5 (S.D.N.Y. Oct. 13, 2006) ("[I]gnorance of the law is not 'extraordinary' in the sense required by the equitable tolling doctrine."); Worsham v. West, 05 Civ. 530, 2006 WL 2462626 at *2 (S.D.N.Y. Aug. 23, 2006) ("Mere ignorance of the law does not qualify as an extraordinary circumstance warranting equitable tolling in habeas cases."); Ayala v. Fischer, 04 Civ. 3404, 2004 WL 2435523 at *1 (S.D.N.Y. Nov. 2, 2004) (Kaplan, D.J.) ("Ignorance of the law and an inability to read or write do not constitute extraordinary circumstances that would justify equitable tolling."); Williams v. Breslin, 03 Civ. 1848, 2004 WL 2368011 at *6 (S.D.N.Y. Oct. 20, 2004) (rejecting petitioner's claim that he was "'not familiar with matters of Law as this is [his] first State Conviction & Sentence'" because ignorance of the law is not an extraordinary circumstance, citing cases); Hickey v. Senkowski, 02 Civ. 1437, 2003 WL 255319 at *4 (S.D.N.Y. Feb. 4, 2003); Bonilla v. Ricks, 00 Civ. 7925, 2001 WL 253605 at *2 (S.D.N.Y. Mar. 14, 2001) (Peck, M.J.) (Petitioner's "argument is similar to that of petitioners who sought more time because of their lack of legal knowledge or delays in the prison law library, all of which have been rejected by the courts in this Circuit," citing cases.); Martinez v. Kuhlmann, 99 Civ. 1094, 1999 WL 1565177 at *5 (S.D.N.Y. Dec. 3, 1999) (Peck, M.J.) ("An inability to speak, read or write English, alone or in combination with difficulty obtaining assistance in legal research from other prisoners or prison staff, is not sufficiently extraordinary to merit equitably tolling the AEDPA's one-year statute of limitations, since these are disabilities common to many prisoners.") (citing cases), report & rec. adopted, 2000 WL 622626 (S.D.N.Y. May 15, 2000); Rhodes v. Senkowski, 82 F. Supp. 2d 160, 172 n.7 (S.D.N.Y. 2000) (Buchwald, D.J. & Peck, M.J.) (citing cases). Forbes is not entitled to equitable tolling.


For the reasons set forth above, Forbes' petition should be dismissed as time-barred. A certificate of appealability should not be issued.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72, 6(a), 6(e).

Andrew J. Peck United States Magistrate Judge

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