The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Arkeem Bennett (hereinafter "petitioner" or "Bennett") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. In a judgment rendered on April 26, 2000, following a jury trial in the Supreme Court of the State of New York, Queens County, Bennett was convicted of attempted robbery, criminal mischief and intimidating a witness. He was sentenced to a term of eleven years' imprisonment.
Bennett challenges his conviction on grounds that he was denied effective assistance of trial counsel and appellate counsel. For the reasons set forth below, the petition is denied.
The following facts are adduced from the instant petition and underlying record. On October 11, 1998, around 11:30 p.m., Xiang Qing Jiang (hereinafter "Jiang") was working as manager of the New Mandarin Duck restaurant (hereinafter "the restaurant") in Far Rockaway, Queens. (Tr. 307, 313, 325.)*fn1 The restaurant had already closed, and Jiang was cleaning the floor. (Tr. 313.) Shortly after midnight, Bennett and another man, Barry Davis (hereinafter "Davis"), approached the restaurant. (Tr. 313.) Bennett was a regular customer of the restaurant. (Tr. 310-313.) Davis began jumping on Jiang's car, which was parked in front of the restaurant, while Bennett walked alongside the vehicle. (Tr. 313-14.) After Davis had broken the skylight and the windshield of the car, he and Bennett left the scene. (Tr. 319-21.) Jiang immediately called the police, who arrived approximately fifteen minutes later. (Tr. 321.) Jiang had trouble explaining to the police what had happened, as he speaks Mandarin, Fukinese, and Fu-chou (a third Chinese dialect), and has difficulty communicating in English. (Tr. 306, 321.) Through gestures and the telephonic assistance of a police officer's mother who spoke Mandarin, Jiang told the police that two people had jumped on his car. (Tr. 323-24.) The next day, at approximately 3:20 p.m., Davis and Bennett returned to the restaurant. (Tr. 325.) Davis displayed a gun and demanded money from Jiang. (Tr. 326.)
Bennett stood behind Davis, looking back and forth and holding one hand inside his jacket. (Tr. 328.) Jiang believed that Bennett may have had a gun. (Tr. 328.) At some point, the restaurant telephone rang, and Davis and Bennett immediately left. (Tr. 329.) They did not obtain any money from Jiang. (Tr. 330.) Again, Jiang contacted the police. (Tr. 335.) When the police arrived at the restaurant, Jiang explained, using gestures and limited English, what had transpired with Davis and Bennett.
Later that evening, at approximately 8:40 p.m., Davis and Bennett returned to the restaurant. (Tr. 341-42.) Davis again displayed a gun, asked Jiang why he had called the police, and used an ethnic slur against him. (Tr. 342-43.) Davis also threatened to break Jiang's windows if he called the police. (Tr. 348.) During this confrontation, Bennett was walking back and forth behind Davis, again with his hand in his jacket pocket. (Tr. 344.) When several customers entered the restaurant, Davis and Bennett immediately left the premises, and Jiang called the police. (Id.) When the police arrived, Jiang explained what had transpired and described the two men who had entered the restaurant, again using limited English and gestures. (Tr. 351-53.)
Less than an hour later, at approximately 9:15 p.m., Davis and Bennett again returned to the restaurant. (Tr. 358.) Davis broke the restaurant sign and the storefront window, then both he and Bennett walked away. (Tr. 358-59.) Jiang called the police a fourth time. (Tr. 365.) Davis was arrested a few days after the incident. (Tr. 365.)
On November 11, 1998, at approximately 6:00 p.m., Bennett, who had not been apprehended in connection with the incidents, entered Jiang's restaurant with a group of friends. (Tr. 365-66.) Jiang immediately called Dan Chu, an assistant district attorney who spoke Mandarin and had helped Jiang following Davis' arrest. (Tr. 367-68.) When police, who had been contacted by Chu, arrived at the restaurant, Bennett fled. (Tr. 369-70.) Shortly thereafter, the police arrested Bennett at his home and transported Jiang to Bennett's residence in order to identify him. (Tr. 371-72.) Jiang identified Bennett as one of the perpetrators of the previous incidents. (Tr. 447-449.)
On April 26, 2000, after a jury trial, Bennett was found guilty on four counts of attempted robbery in the first degree (N.Y. Penal Law §§ 110.00, 160.15(4)), attempted robbery in the second degree (N.Y. Penal Law §§ 110.00, 160.10(1)), and criminal mischief in the third degree (N.Y. Penal Law § 145.05), as well as two counts of intimidating a witness in the third degree (N.Y. Penal Law § 215.15). Bennett was sentenced to eleven years of imprisonment.
On August 29, 2001, Bennett timely appealed his conviction to the Appellate Division, Second Department, claiming that: (1) the trial court had erred in three of its Batson/Kern rulings during voir dire, (2) the trial court had improperly denied his request for a Wade hearing, and (3) his sentence was excessive. The Appellate Division affirmed Bennett's conviction in a decision and order dated March 25, 2002. People v. Bennett, 739 N.Y.S.2d 612 (N.Y. App. Div. 2002).
Bennett then filed an application with the New York Court of Appeals for leave to appeal the Appellate Division's order. His application raised the same claims as those previously raised before the Appellate Division. On September 12, 2002, the Court of Appeals denied Bennett leave to appeal the decision. People v. Bennett, 98 N.Y.2d 729 (N.Y. 2002).
On July 18, 2003, Bennett filed a federal habeas petition in the Eastern District of New York on the basis of ineffective trial counsel, ineffective appellate counsel, use of perjured testimony, trial court "bias" and "unexamined jury misconduct." (Nisha M. Desai's Declaration in Opposition to Petition for Habeas Corpus ("Desai Decl."), Ex. G.)
Respondent moved to dismiss the petition without prejudice, on grounds that it was based upon unexhausted claims. On February 9, 2004, the Honorable Nicholas G. Garaufis granted respondents' motion to dismiss, and Bennett was advised to exhaust his unexhausted claims in state court. Bennett v. Spitzer, No. 03-CV-3534 (NGG), at 4-5 (E.D.N.Y. February 9, 2004) (order dismissing mixed habeas petition). Bennett then filed a motion for a writ of error coram nobis before the Appellate Division, Second Department, on the ground of ineffective assistance of appellate counsel. The Appellate Division determined on November 1, 2004, that Bennett had failed to establish that he did not receive effective assistance of appellate counsel. People v. Bennett, 783 N.Y.S.2d 475 (N.Y. App. Div. 2004). Bennett appealed the Appellate Division's coram nobis decision to the New York Court of Appeals, which denied Bennett leave to appeal the Appellate Division's decision on February 3, 2005. People v. Bennett, 4 N.Y.3d 796 (N.Y. 2005).
On March 13, 2005, Bennett petitioned this Court for a writ of habeas corpus.
Bennett's conviction became final on December 12, 2002, when his time to file a writ of certiorari expired. See Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No 104-132, 110 Stat. 1214, petitioner's time to file a federal habeas corpus petition expired one year later, on December 12, 2003. See 28 U.S.C. § 2244(d)(1). Petitioner filed a "mixed" federal habeas petition containing both exhausted and unexhausted claims on July 18, 2003, approximately five months before the AEDPA statute of limitations expired. Pursuant to Rose v. Lundy, 455 U.S. 509, 519-20 (1982), Judge Garaufis held that petitioner could not prevail on his claim of ineffective assistance of appellate counsel because that claim had not been exhausted in state court. Bennett, No. 03-CV-3534 (NGG), at 4. Instructing petitioner to exhaust his ineffective assistance of appellate counsel claim by filing a writ of error coram nobis before a state court, Judge Gaurafis dismissed, rather than stayed, the habeas petition. Id., at 6. The judge advised petitioner that he had five months remaining to exhaust his claim in state court (during which the one-year statute of limitations would be tolled) and to return to federal court by filing a new habeas petition. Id. at 5. Judge Garaufis' ruling appears to have been based upon the premise that petitioner's one-year statute of limitations, set to expire on December 12, 2003, had been stayed by petitioner's initiation of a federal habeas action. Id. ("Because the petitioner will have approximately five months after the state courts rule on his writ of error coram nobis to file a habeas corpus petition, there is no need to grant the petitioner a thirty-day stay."). However, when Judge Garaufis' opinion was issued, the limitations period for petitioner to file had, in fact, already expired. Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001) ("[T]he time that a habeas petition is pending in federal court is not exempted from the one-year limitations period.") (citing Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and therefore Section 2244(d)(2) does not toll the one-year AEPDA limitation period during the pendency of a federal habeas petition)). Thus, any successive federal habeas petition to be filed by petitioner would be barred from review as untimely.*fn2 Rhines v. Weber, 544 U.S. 269, 275 (2005) ("If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review.").
In Zarvela, in order to avoid this conundrum, the Second Circuit provided that a district court may (1) dismiss petitioner's unexhausted claims, stay consideration of the exhausted claims, and allow petitioners to return to federal court once they have exhausted their state remedies; (2) dispose of unexhausted claims on the merits; or (3) deny a mixed petition in its entirety. Zarvela, 254 F.3d at 379-82. The Court of Appeals noted further that a stay "will be the only appropriate course in cases like Zarvela's where an outright dismissal `could jeopardize the timeliness of a collateral attack.'" Id., at 380. In Rhines, the Supreme Court advised that this policy of "stay and abeyance" should be permitted only in cases (1) where petitioner has shown "good cause" for failure to exhaust his remedies, (2) where the unexhausted claims are not "plainly meritless," and (3) there is no indication that "the petitioner engaged in intentionally dilatory litigation tactics." Rhines, 544 U.S. at 277, 278. Moreover, "district courts should place reasonable time limits on a petitioner's trip to state court and back." Rhines, 544 U.S. at 278 (citing Zarvela, 354 F.3d at 381 ("[District courts] should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed.")).
Because his first habeas petition was dismissed, rather than stayed, following the expiration of AEDPA's one-year statute of limitations, Bennett's instant petition for habeas relief is technically untimely. However, because Judge Garaufis clearly intended for petitioner to be able to refile in federal court following the exhaustion of his claims before state court, this Court shall, pursuant to the principle of equitable tolling, consider petitioner's application for habeas relief as though it had been stayed, rather than dismissed, by Judge Garaufis. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (permitting equitable tolling of the one-year AEDPA statute of limitations "`as a matter of fairness' where a plaintiff has been `prevented in some extraordinary way from exercising his rights'" and where petitioner has "acted with reasonable diligence") (citations omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 & n.8 (2005) ...