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Jimenez v. Phillips


January 16, 2006


The opinion of the court was delivered by: Sweet, D.J.


Petitioner pro se Jose Jimenez ("Jimenez"), currently incarcerated at Green Haven Correctional Facility, Stormville, New York, seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for one count of murder in the second degree (New York Penal Law § 125.25[3]) and one count of robbery in the first degree (New York Penal Law § 160.15[2]). The respondent, William Phillips, Superintendent (the "State") has moved to dismiss the petition, pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that it is time-barred under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). For the reasons set forth below, the motion of the State is granted, and petitioner's motion is denied in its entirety.

Prior Proceedings

A. State Court Proceedings

Following a jury trial, a judgment of conviction was entered on May 7, 1998, in New York State Supreme Court, Bronx County, for one count of murder in the second degree and one count of robbery in the first degree. Jimenez was sentenced to terms of imprisonment of 25 years to life for the first count and eight and a half to 25 years for the second count, to run concurrently. The Appellate Division, First Department, affirmed the conviction on direct appeal on June 1, 2000. People v. Jimenez, 273 A.D.2d 9 (1st Dept. 2000). The New York Court of Appeals denied leave to appeal to that court on October 26, 2000. People v. Jimenez, 95 N.Y.2d 906 (2000).

In an application dated July 10, 2001, petitioner moved the Appellate Division First Department for a writ of error coram nobis, alleging that his appellate counsel was ineffective for failing to raise the claim that he was denied his right to be present during peremptory challenges at voir dire and the claim that the trial court failed to inform him of his right to be present.

In a subsequent motion dated March 5, 2002, petitioner moved the trial court to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, claiming that his trial counsel was ineffective and that the indictment was defective because it failed to enumerate the elements of the crimes that were charged. On April 4, 2002, the Supreme Court denied the motion sua sponte.

On June 20, 2002, the Appellate Division denied both defendant's leave to appeal the lower court's denial of his § 440.10 motion and his writ of coram nobis.

B. Habeas Corpus Proceedings

Jimenez, proceeding pro se, signed his petition for a writ of habeas corpus on November 1, 1004. It was received by the Pro Se Office on November 12, 2004 and filed on December 23, 2004. Jimenez claimed: (1) that the trial court's reasonable doubt charge denied his due process right to a fair trial in violation of the Fourteenth Amendment of the United States Constitution and Article I, section 6 of the New York Constitution; (2) ineffective assistance of counsel at the trial and appellate levels in violation of the Sixth and Fourteenth Amendments of the United States Constitution; and (3) that the trial court did not have jurisdiction over him.

The State moved for dismissal of Jimenez's petition on April 15, 2005, arguing that his petition is time-barred by the one-year limitation period set forth by the AEDPA. 28 U.S.C. § 2244(d). The matter was marked fully submitted on May 25, 2005.


Under 28 U.S.C. § 2244, as amended by the AEDPA, an inmate may file a Section 2254 habeas corpus petition within one year of the date that his conviction becomes final or the facts giving rise to his claim could have been discovered. 28 U.S.C. § 2244(d)(1). The Second Circuit has held that for purposes of 28 U.S.C. § 2244, a state conviction becomes final when the time to seek certiorari to the United States Supreme Court has expired, which is 90 days after the date direct review of the case has been completed by the highest court in the relevant state. Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001).

The one-year limitations period under the AEDPA is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). If utilized, this tolling provision "excludes time during which properly filed state relief applications are pending," but it does not restart the statute of limitations clock. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).

Applying these rules to the facts of this case, Jimenez's petition is time-barred. Jimenez's conviction became final on January 26, 2001, the final date upon which he could have sough certiorari from the United States Supreme Court. 165 days after his conviction was final, Jimenez filed his writ of coram nobis. The pendency of this application tolled the statute of limitations until the Appellate Division denied his application on June 22, 2002.*fn1 See 28 U.S.C. § 2244(d)(2). From June 22, 2002, petitioner had a remainder of 200 days, or until January 6, 2003, to file his petition for a writ of habeas corpus. Because Jimenez did not file the instant writ of habeas corpus until, at the earliest, November 1, 2004, 654 days after the January 6, 2003 deadline, it is clear that the one-year statute of limitations period was exceeded.

The Second Circuit has held that the one-year limitations period is also subject to equitable tolling upon a petitioner's showing that extraordinary or unusual circumstances prevented him from filing his petition on time. Smith, 208 F.3d at 17. To succeed, the petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000). It is well established that such relief is limited to rare and exceptional circumstances. See Smith, 208 F.3d at 17. "To merit application of equitable tolling, the petitioner must demonstrate that he acted with 'reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances 'beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (citations omitted).

In the instant case, Jimenez argues that his petition should be tolled for additional time based on equitable grounds because he never received notice of the decision rendered on June 20, 2002 regarding his case. According to petitioner, neither the court nor the respondent notified him of the disposition of his appeal. It was not until petitioner wrote to the court for a second time, on January 5, 2004, that he obtained information regarding the dismissal of his application. According to petitioner, he first received a copy of the June 20, 2002 decision on January 14, 2004.

Assuming arguendo petitioner's failure to be notified of the June 20, 2002 decision did constitute the kind of exceptional circumstances for which equitable tolling would be warranted*fn2 , and the motions were deemed pending until Jimenez's notification on January 14, 2004, Jimenez's petition was still filed in excess of the one year statute of limitations under 28 U.S.C. § 2244(d)(1). As noted above, 165 days passed between the final date upon which petitioner could file a writ with the United States Supreme Court in January of 2001 and the date on which he filed his writ of coram nobis in July of 2001. Even delineating the final judgment of Jimenez's case as the date upon which he received notification, he had only 200 days from that date to file the instant petition. Counting from January 14, 2004, an additional 291 days passed before Jimenez signed his petition on November 1, 2004 -- combined with the pre-tolling time, approximately a total of 456 days after the conclusion of the pendency of the collateral attack. As the Second Circuit has held, utilization of the 2244(d)(2) tolling provision does not restart the statute of limitations clock, but merely serves to pause a limitations period that has not yet run. See Smith, 208 F.3d at 17.

Finally, petitioner argues that he is entitled to additional equitable tolling on the grounds that his attorney's untimely death and petitioner's unawareness of such hindered his ability to process his petition. According to him, on August 23, 2004 he received a notice informing him that his attorney had unexpectedly deceased on March 17, 2004, and that prior to this notification he had every reason to believe that his counsel was in the process of filing his writ of habeas corpus. Petitioner further submits that he was unable to obtain his case file until September 14, 2004, rendering it impossible to file a petition on his own belalf prior to that date.

Petitioner is not entitled to equitable tolling on these grounds because he fails to demonstrate that he exercised reasonable diligence during this time period. Jiminez points to letters and communications between him and his attorney in January and February of 2004. He also has submitted emails written by his wife to his attorney in March of 2004 to which she never received a response. Petitioner fails however to provide any explanation as to why he failed to contact his attorney between the end of March of 2004 and the end of August 2004, when he received notice of his attorney's death. Petitioner has made no showing that he made any effort during this five-month period to inquire into the status of his petition. This delay demonstrates a lack of reasonable diligence on petitioner's part, which militates against equitably tolling the statute of limitations. Combined with the already considerable delay that occurred prior to the death of Jimenez's attorney, equitable tolling is not appropriate here.

In light of the foregoing, it is determined that Jimenez has failed to allege any facts that would justify equitable tolling of the one-year limitation period. His petition is therefore denied as barred by the AEDPA's statute of limitations.


For the foregoing reasons, the State's motion to dismiss Williams' petition for a writ of habeas corpus is granted. Accordingly, Williams' petition is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).

It is so ordered.


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