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Perich v. Mazzuca

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


August 23, 2007

PIETRO PERICH PETITIONER,
v.
WILLIAM MAZZUCA, SUPERINTENDENT OF FISHKILL CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: Trager, J

MEMORANDUM AND ORDER

Pro se petitioner Pietro Perich ("Perich" or "petitioner") brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he was deprived of (1) his right to a direct appeal and (2) his right to effective assistance of counsel. Respondent now moves to dismiss Perich's petition as time-barred under the one-year statute of limitations provided in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). For the following reasons, respondent's motion is denied.*fn1

Background

(1)

On December 6, 2001, after a jury trial, Perich was convicted in absentia in Queens County Supreme Court of Criminal Possession of a Weapon in the Second Degree (New York Penal Law ("NYPL") § 265.03[2]); Criminal Possession of a Weapon in the Fourth Degree (NYPL § 265.01); and Resisting Arrest (NYPL § 205.30) for menacing a prostitute with a gun. (Pet. 1; Aff. of Sharon Y. Brodt in Support of Resp't's Mot. to Dismiss ¶ 3, hereinafter "Brodt Aff.".) Perich was acquitted of the more serious charges of Robbery in the First Degree and Attempted Assault in the Second Degree. (Tr. 22, Jan. 29, 2002.)

Perich had absconded during his trial, was not present for the announcement of the verdict on December 6, 2001, and failed to appear at a sentencing hearing scheduled for January 2, 2002, and another on January 29, 2002. (Brodt Aff. ¶ 4.) At the January 29, 2002 hearing, Perich's counsel informed presiding Justice Randall T. Eng that Perich called his office the day before and indicated he wanted to turn himself in. (Tr. 5, Jan. 29, 2002.) Justice Eng declined to impose a sentence at the January 29 hearing and adjourned the matter for two days to allow the defendant another opportunity to appear in the matter. (Tr. 12, Jan. 29, 2002.) The defendant communicated with his attorney by telephone again on January 30, but did not appear in court on January 31. (Tr. 14, Jan 31, 2002.)

At the January 31 hearing, Perich was found "willfully absent," (Tr. 15, Jan. 31, 2002), and was sentenced in absentia to a term of eight years.*fn2 (Tr. 32-33, Jan. 31, 2002.) The court did not say anything to Perich's attorney about petitioner's right to appeal. (Tr. 33, Jan. 31, 2002.)

In February 2002, Perich was apprehended and later collapsed in his cell.*fn3 (Brodt Aff. ¶ 6.) At a hearing on February 15, 2002, Perich appeared "vacant" and "unresponsive," and the court ordered an Article 730 examination to determine his fitness to proceed. (Tr., Feb. 15, 2002.) The court deferred arraignment on the new bail jumping indictment "pending receipt of the results of the 730 examin[ation]" and explained that the 730 examination "will refer to both indictments." There is no evidence in the record that the court or Perich's attorney informed Perich of his right to appeal at this hearing.

On May 13, 2002, Perich appeared at a hearing addressing "open matters" including the sentencing under "indictment 3422 of 2000," which included the original robbery, assault, weapon possession and resisting arrest charges. (Tr. 2, May 13, 2002). After finding Perich fit to proceed (Tr. 2-3, May 13, 2002), Justice Eng heard from the prosecution. Asking whether she was "being heard with respect to the sentence that your Honor has already passed or . . . with respect to another issue," the prosecutor presented arguments pertinent to the sentencing for the original convictions. (Tr. 4, May 13, 2002.) The prosecutor then asked whether she should be heard on the bail jumping issue, and Justice Eng responded, "Right now I am concerned with the open sentence." (Tr. 7, May 13, 2002.)

The prosecutor objected that the sentence for the original convictions had already been passed and that the court, therefore, lacked jurisdiction to alter it. As such, the prosecution argued that "the only remedy this defendant has in terms of jurisdiction is under 440.20."*fn4 (Tr. 7-8, May 13, 2002.) Justice Eng stated that the prosecutor was addressing an issue "that has not ripened yet" and that he was giving her "an opportunity to be heard as much as you wish to be heard." (Tr. 8, May 13, 2002.)

Perich's counsel then requested that the court consider reducing Perich's sentence, arguing that the verdict on the possession of a weapon in the second degree be set aside as inconsistent with the evidence and repugnant to the verdict because Perich was acquitted of the attempted assault and robbery charges and, therefore, could not have been using the gun unlawfully. (Tr. 14-15, May 13, 2002.) The prosecutor again objected that the motion to set aside the defendant's sentence be made in writing under CPL § 440.20. (Tr. 16, May 13, 2002.) Justice Eng responded: "In reviewing the law under 330.40, a motion to set aside the verdict based upon a ground specified in subdivision one of section 330.30, it need not be in writing. That's the law." (Tr. 16, May 13, 2002.)

After hearing from Perich himself, Justice Eng determined that the sentence he originally announced on January 31 was correct and ordered the sentence executed. (Tr. 20-21, May 13, 2002.) The court clerk then advised Perich of his right to appeal the verdict within 30 days and his right to assigned counsel upon proof of inability to pay. (Tr. 21-22, May 13, 2002.)

(2)

Perich submitted a letter dated May 14, 2002 purporting to file a notice of appeal to the Appellate Division, Second Department, and requesting leave to proceed in forma pauperis, claiming that although he was able to retain counsel at trial, he was now indigent having no income while in prison. (Notice of Appeal and Request for Poor Person Relief, May 14, 2002, hereinafter "Pet.'s Ex. E.")*fn5 "A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence." CPL § 1.20(15). CPL § 440.20(1) provides, in part, that "[a]t any time after judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside sentencing upon that it was unauthorized, illegally imposed or otherwise invalid as a matter of law." Id. (emphasis added). CPL § 440.30(1) states, in part, that a "motion to vacate a judgment pursuant to section 440.10 and a motion to set aside a sentence pursuant to section 440.20 must be made in writing and upon reasonable notice to the people." Id. (emphasis added). Conversely, under CPL § 330.30(1), "[a]t any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof" on enumerated grounds. Id. (emphasis added). CPL § 330.40 provides that motions under § 330.30(1) "need not be in writing."

Respondent opposed Perich's request to proceed in forma pauperis, but did not oppose the notice of appeal as untimely. (Brodt Aff. ¶ 9; Ex. F.)

On August 23, the Appellate Division, Second Department, treating the motion as one for permission to file a late notice of appeal under CPL § 460.30, as well as for in forma pauperis relief, denied the motion in its entirety. People v. Perich, App. Div., 2d Dep't, Nos. 02-04705, 02-07366, Aug. 23, 2002, Index No. 3422/00. The court: 1) denied the branch of the motion for leave to file a late notice of appeal, 2) dismissed, "on the court's own motion, the appeal from the execution of sentence," and 3) ordered that the remaining branches of the motion be "denied as academic." Id.

On September 19, 2002, Perich, through different retained counsel, filed a motion to reargue the denial of permission to file a late notice of appeal, which respondent opposed. (Mot. for Reargument for Permission to File Late Notice of Appeal, Sept. 19, 2002; Aff. in Op. to Def.'s Mot. to Reargue, Oct. 18, 2002.) On November 7, 2002, the Second Department denied the motion. People v. Perich, App. Div., 2d Dep't, Nos. 02-04705, 02-07366, Nov. 7, 2002, Index No. 3422/00.

In a motion dated February 3, 2003,*fn6 Perich, through a third retained counsel, moved for an order recognizing the timeliness of his initial notice of appeal filed May 14, 2002, or, alternatively, permitting him to file a late notice of appeal. Respondent opposed that motion on the grounds that it was actually a motion to reargue the Second Department's order of August 23, and as such, should be deemed untimely. (Brodt Aff. ¶¶ 13-15.) As it had in its opposition to the first motion to reargue, respondent also contended that the petitioner's motion was meritless. (Brodt Aff. ¶¶ 16.) On March 12, 2003, the Appellate Division denied this third motion.*fn7 Brodt Aff. ¶ 17; Pet.'s Mem. of Law, June 7, 2005, at 2.)

In a letter dated April 23, 2003, Perich sought leave to appeal to the New York Court of Appeals from the three orders of the Appellate Division dated August 23, 2002, November 7, 2002 and March 12, 2003. (Brodt Aff. ¶ 18.) Respondent opposed the application on the ground that the orders were not appealable. (Brodt Aff. ¶ 18.) On July 18, 2003, the Court of Appeals, without opinion, denied leave to appeal as to the August 23, 2002 order and dismissed the leave to appeal motions of March 12 and November 7, 2003 orders. People v. Perich, 100 N.Y.2d 585, 764 N.Y.S.2d 396, 793 N.E.2d 488 (2003) (Rosenblatt, J.) (Table).

On January 23, 2004, Perich moved for a writ of error coram nobis in the Appellate Division on the ground that his trial attorney was ineffective for failing to timely file a notice of appeal on his behalf. (Brodt Aff. ¶ 19.) Respondent argued that the relief Perich sought was not cognizable on a state coram nobis claim. (Brodt Aff. ¶ 20.) On February 14, 2005, the Second Department denied the writ, stating that the "appellant has failed to establish that he was denied effective assistance of appellate counsel." People v. Perich, 15 A.D.3d 505, 789 N.Y.S.2d 435 (2d Dep't 2005).

On March 18, 2005, petitioner filed a letter seeking leave to appeal the Appellate Division's February 14 order. The Court of Appeals dismissed the application on May 6, 2005. People v. Perich, 4 N.Y.3d 889, 798 N.Y.S.2d 734 (2005) (Read, J.) (Table). Finally, petitioner filed the instant petition for a writ of habeas corpus on May 31, 2005.

Respondent now moves to dismiss the petition as time-barred under AEDPA's one-year statute of limitations. 28 U.S.C. § 2244(d)(1). Respondent argues that petitioner's conviction became final on March 2, 2002, more than three years before the instant petition was filed, and that even when days from this period during which "properly filed" post-conviction motions were "pending" under 28 U.S.C. § 2244(d)(2) are subtracted, petitioner is still unable to come within the one-year deadline.

Discussion

(1)

AEDPA Statute of Limitations Overview AEDPA provides a one-year statute of limitations for filing an application for a writ of habeas corpus. The statute of limitations begins to 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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D).

However, in calculating the one-year period, "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." 28 U.S.C. § 2244(d)(2).

Thus, whether AEDPA's one-year statute of limitations bars Perich's claim requires a two-step determination of first, which date begins the limitations period under § 2244(d)(1), and second, how many days during which any "properly filed" applications for post-conviction or other collateral review were "pending" tolled the limitations period under § 2244(d)(2). In order to meet the statute of limitations, the total number of days that elapsed from the date determined to trigger the statute of limitations under step one until the filing of the instant petition, subtracted by the total amount of "tolled" days calculated under step two, must be equal to or less than one year, or 365 days.

(2)

Determining the Proper "Triggering" Provision

a. 28 U.S.C. § 2244(d)(1)

Respondent argues that § 2244(d)(1), which begins the statute of limitations on the date "the judgment became final by . . . the expiration of time for seeking" direct review, governs Perich's petition. Perich's conviction became final on March 2, 2002, thirty days after the court first announced the sentence on January 31, 2002. Under New York Criminal Procedure Law ("CPL") § 460.10(1)(a), "a party seeking to appeal from a judgment or a sentence . . . must, within thirty days after imposition of the sentence . . . file" a written notice of appeal. Thus, respondent argues, and the Second Department seems to have found, that Perich's sentence was "imposed" on January 31, triggering the 30 days in which to file an appeal under CPL § 460.10(1)(a). See People v. Perich, App. Div., 2d Dep't, Nos. 02-04705, 02-07366, Aug. 23, 2002, Index No. 3422/00.

The Second Department's order cites People v. DeVillar, 264 A.D.2d 528, 529, 695 N.Y.S.2d 294, 294 (2d Dep't 1999). In DeVillar, the court dismissed an appeal from a purported judgment rendered almost six years after sentence had been imposed for the same conviction because the purported judgment was "nothing more than a proceeding to cause the judgment rendered [almost six years prior] to be brought to execution." Id. (citing People v. Crawford, 239 A.D.2d 515, 659 N.Y.S.2d 515 (2d Dep't 1997)). The Second Department thus seems to have considered the hearing on May 13, at which Perich was again "sentenced" to the same eight-year term, as a proceeding that brought the sentence imposed on January 31 to execution, and as such, did not extend the amount of time in which he had to appeal.

Thus, respondent is correct that Perich's conviction became final under § 2244(d)(1) on March 2, 2002. Because Perich did not file a notice of appeal within thirty days of January 31, his conviction became final on March 2, 2002, when the thirty-day time period to file a notice of appeal under CPL § 460.10(1)(a) elapsed. See Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (holding petitioner's conviction final upon expiration of time to file an appeal). However, as discussed below in subsection (c), § 2244(d)(1) is not the proper triggering provision governing Perich's claims.

b. 28 U.S.C. § 2244(d)(1)(B)

Perich argues that the correct provision triggering the statute of limitations period is 28 U.S.C. § 2244(d)(1)(B), which begins tolling on "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action." Id. Perich claims that the state appellate court denials of his post-conviction motions constitute an "impediment" by the state under § 2244(d)(1)(B), as the "State process has become futile in protecting petitioner's constitutional right to direct appeal." (Pet.'s Dec. in Op. ¶¶ 9, 13.)

Petitioner's argument is unsound. The "impediment" referred to in § 2244(d)(1)(B) is one created by the state that violates "the Constitution or laws of the United States" and one which "prevented [the petitioner] from filing" the federal petition.

28 U.S.C. § 2244(d)(1)(B) (emphasis added). While the state courts may not have granted Perich the relief he sought, none of their decisions precluded him from filing a petition in federal court.

Indeed, Perich has not alleged any facts establishing a state-created impediment to filing the federal petition, let alone an impediment created by state action that violated the Constitution or federal law. For example, petitioner does not suggest that state corrections officers confiscated his legal papers, Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000), or that the prison library lacked the "materials necessary to prisoners to challenge their convictions or confinement," Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir. 2003). Rather, Perich argues that the state courts themselves, in denying the relief he sought, created an impediment under § 2244(d)(1)(B). This interpretation is simply incorrect. Cf. Montalvo v. Strack, 99-cv-5087, 2000 WL 718439, at *2 (S.D.N.Y June 5, 2000) (multiple prison transfers not violative of Constitution or federal law and, in any event, did not create impediment to filing federal petition); Castillo v. Artuz, 99-cv-5801, 2000 WL 307373, at *4 (E.D.N.Y. Feb. 15, 2000) (denial of state FOIL requests does not constitute state-created impediment violative of Constitution or federal law).

Even assuming, arguendo, that the rendering of an opinion by a state court could constitute an "impediment" under § 2244(d)(1)(B), Perich has not alleged any facts to show how he was "prevented" from filing his federal petition in this case. Cf. Valverde, 224 F.3d at 134 (in equitable tolling context, noting that the "word 'prevent' requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for [] tolling rests and the lateness of his filing").

c. 28 U.S.C. § 2244(d)(1)(D)

Perich's response papers could be read to argue that § 2244(d)(1)(D) should be considered the appropriate triggering provision governing his claims.*fn8 Under 28 U.S.C. § 2244(d)(1)(D), "the limitation period shall run from the latest of - (D) the date on which the factual predicate of the claim or claims presented could have been discovered through due diligence." See also Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000) (describing AEDPA's corresponding tolling provision for federal prisoners' claims as resetting "the limitations period's beginning date, moving it from the time when the conviction became final, to the later date on which the particular claim accrued") (citation omitted); Delacruz v. United States, 06-cv-5666, 2006 WL 2129335, at *3 (S.D.N.Y. July 31, 2006).

Perich presents two claims: first, that he was unconstitutionally denied his right to direct review, and second, that he was deprived of his right to effective assistance of counsel.*fn9 Perich's first claim was not discoverable until August 23, 2002, at the earliest, when the Appellate Division, Second Department, converted his motion requesting to proceed in forma pauperis and purporting to file a notice of appeal into a motion seeking permission to file a late notice of appeal, and, as such, denied that motion. For similar reasons, Perich's second claim, namely, that he was deprived of effective assistance of counsel due to his attorney's failure to file a timely notice of appeal on his behalf or to inform him of his right to file an appeal within the period he had to timely file, could not have been discovered through due diligence until after August 23, 2002, when the Appellate Division issued its ruling denying his appeal as untimely.

Perich's first claim -- that he was unconstitutionally denied his right to direct review -- simply did not accrue until the Appellate Division denied direct review on August 23, 2002. In Johnson v. United States, the Supreme Court held that a state court decision could be considered a "fact" under the analogous "date of discovery" AEDPA provision for federal prisoners, 28 U.S.C. § 2255(4).*fn10 Johnson v. United States, 544 U.S. 295, 302 (2005). The Court noted the awkwardness of considering a state court decision to be a "fact" that was capable of discovery "when the fact happens to be the outcome of a proceeding in which the § 2255 petitioner was the moving party." Id. at 307. Thus, the Court explained, the "due diligence" required in discovering the "fact" of the state court decision "entail[s] diligence in the steps necessary for the existence of that fact," id. at 310, or, in that case, "prompt action on the part of the petitioner as soon as he is in a position to realize that he has an interest in challenging his prior conviction." Id. at 308.

Here, petitioner filed the notice of appeal and motion to proceed in forma pauperis the day after the court "resentenced" him on May 13, 2002, when he was informed of his right to appeal (although the petitioner's ability to timely invoke that right had already expired because thirty days had lapsed since sentence was imposed on January 31, 2002). Because petitioner filed his motion at the earliest conceivable time he was "in a position to realize" that he had an interest in filing an appeal, id. at 308, petitioner acted with the diligence required by § 2244(d)(1)(D). See Dicenzi v. Rose, 452 F.3d 465, 468 (6th Cir. 2006) (holding date state appellate court denied motion to file a delayed appeal as starting AEDPA "clock" under § 2244(d)(1)(D) for claim based on denial of direct appeal). Cf. Cook v. New York State Div. of Parole, 321 F.3d 274, 280 (2d Cir. 2003) (considering day prisoner notified of denial of parole as date triggering limitations period under § 2244(d)(1)(D)); Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003) (same). Correspondingly, the Second Department's denial of Perich's motion purporting to file a notice of appeal on August 23, 2002, should be considered the "factual predicate" that triggers the limitation period under § 2244(d)(1)(D), the "discovery" of which occurred when Perich received notice of the decision.*fn11

For similar reasons, Perich's second federal claim, namely, that he was deprived of effective assistance of counsel due to his attorney's failure to file a timely notice of appeal on his behalf or to inform him of his right to file an appeal within the period he had to timely file, also could not have been discovered through due diligence until after August 23, 2002, when the Appellate Division issued its ruling denying his appeal as untimely.

The Second Circuit in Wims considered the application of the analogous "date of discovery" tolling provision for federal prisoners as triggering the beginning of the statute of limitations for a claim based on an attorney's failure to file a notice of appeal. Wims, 225 F.3d 186. Although the petitioner's claim in Wims differs from the instant case in that Wims had specifically instructed his attorney to file a notice of appeal within the statutory time period, the court's analysis of when counsel's error could have been discovered is instructive here.

Noting that the "statute does not require maximum feasible diligence, only 'due,' or reasonable, diligence," id. at 190 n.4, the Second Circuit stated that the date on which petitioner, if "exercising due diligence," would have discovered the error "is a fact-specific determination that depends, among other things, on the details of the petitioner's post-conviction conversations with his attorney and the conditions of his confinement." Id. at 190-91.*fn12

Here, Perich was apprehended and returned to the court for a February 15 hearing, a full two weeks prior to the last date on which he could have timely filed an appeal.*fn13 During this time, Perich's counsel was presumably under the duty prescribed by 22 N.Y.C.R.R. § 671.3(a), imposing on counsel the duty to provide written notice "advising him of his right to appeal . . . and requesting his written instructions as to whether he desires to take an appeal." Such notice must be provided "immediately after the pronouncement of sentence." Id.

Rule 671.3 further requires that once the defendant's attorney has provided such written notice, "if the client gives to counsel timely written notice of his desire to appeal . . . counsel shall promptly serve and file the necessary formal notice of appeal." Id. The written notice counsel is required to provide must set forth, inter alia, "the applicable time limitations with respect to the making of the application for permission to appeal," the "manner of instituting the appeal," and the right to seek assignment of counsel upon proof of inability to pay. 22 N.Y.C.R.R. § 671.3(b)(1)-(3). See People v. West, 100 N.Y.2d 23, 26, 789 N.E.2d 615, 618, 759 N.Y.S.2d 437, 440 (2003) (describing the rules promulgated by the Appellate Division to effectuate the right to appeal, which "is a statutory right that must be affirmatively exercised and timely asserted") (citations omitted).*fn14

The alleged error of counsel here is, in part, the failure to inform petitioner of his right to appeal.*fn15 Surely, petitioner could not have been expected to become immediately aware that his attorney was rendering ineffective assistance at the time he was rendering it, especially when the alleged error is the failure to inform him of the underlying right he claims he was denied by the alleged ineffectiveness.*fn16 See Wims, 225 F.3d at 190 ("[D]ue diligence plainly did not require [petitioner] to check up on his counsel's pursuit of an appeal on . . . the very day on which [petitioner's] conviction became final absent appeal."). There was no reason for Perich to even inquire into the effectiveness of his counsel prior to August 23, 2003, when the Appellate Division issued its order sua sponte converting Perich's motion to proceed in forma pauperis into a motion for permission to file a late notice of appeal and denying it as such.*fn17 Thus, under § 2244(d)(1)(D), the limitations period was triggered on August 23, 2002, and Perich had 365 days, or until August 23, 2003, to file his federal petition. Since Perich did not file his federal petition until May 31, 2005, his petition is untimely unless Perich can toll the limitations period by demonstrating that "properly filed" post-conviction applications were pending in the state court for at least 647 days (i.e., the number of days that elapsed between August 23, 2003 until May 31, 2005).

(3) Post-Conviction Application Tolling

a. The "Converted" § 460.30 Motion and Two Motions to Reargue

AEDPA's tolling provision provides that "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 the limitations period.

28 U.S.C. § 2244(d)(2). Respondent concedes that the limitations period was tolled during the pendency of petitioner's motion to file a late notice of appeal and his two motions to reargue the denial of that motion, calculating this total time tolled as six months and seven days. (Brodt Aff. ¶ 23.)

It appears that respondent's calculation proceeds as follows: the statute was tolled for 102 days, from May 14, 2002, to August 23, 2002, during which petitioner's first motion to file a late notice of appeal was pending; for 50 days, from September 19, 2002, until November 7, 2002, when the Second Department decided the motion to reargue; and 38 days, from February 3, 2003 until March 12, 2003, when the Second Department denied the second motion to reargue, totaling a period of 190 days in all. (Resp't's Mem. of Law, at 15.)

However, respondent's argument, which implies that the limitations period should not be tolled during the intervals between petitioner's motions*fn18 , must be rejected. The Supreme Court has held that "an application is pending [for AEDPA tolling purposes] as long as the ordinary state collateral review process is 'in continuance,' i.e., 'until completion of' that process." Carey v. Saffold, 536 U.S. 214 (2002). See Kendrick v. Grenier, 296 F. Supp.2d 348, 356 (E.D.N.Y. 2003) ("[T]he term 'pending' in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application.").

The "application" at issue here is Perich's motion to proceed in forma pauperis and his attempt to appeal his conviction to the Appellate Division. Although the Second Department construed this application as a motion for leave to file a late notice of appeal under CPL § 460.30, this motion was nonetheless "properly filed," as respondent concedes, because a CPL § 460.30 motion is recognized as "an application for post-conviction relief" under New York law. See Adeline v. Stinson, 206 F.3d 249, 251-52 (2d Cir. 2000). See also Rodriguez v. People of State of New York, 01-cv-09374, 2003 WL 289598, at *13 & n.8 (Feb. 11, 2003) (Peck, M.J.) (motion to proceed in forma pauperis converted into a § 460.30 motion was deemed "properly filed" and thus tolled the limitations period). The "converted" § 460.30 motion was also timely, having been filed within 13 months of when Perich's sentence was imposed.*fn19

Because respondent concedes Perich's motion to proceed in forma pauperis and purporting to file a notice of appeal was "properly filed," it is necessary to determine when it "ceased to be pending." Hizbullahankhamon, 255 F.3d at 71. As noted by the Second Circuit in Hizbullahankhamon, "[a]n application for post-conviction review is pending from the time it is filed, during the intervals between disposition and appeal, and until further appellate review is unavailable." Id.

Although the limitations period is only tolled by properly filed motions, and not by "creative, unrecognized motions for leave to appeal," Adeline, 206 F.3d at 253, respondent here concedes the two motions to reargue were also "properly filed" and served to toll the statute.*fn20 (Brodt Aff. ¶ 23.) As such, the two reargument motions extended the time during which the initial post-conviction application filed on May 14, 2002 was "pending," rather than restarted the limitations period anew when each reargument motion was filed. See Hizbullahankhamon, 255 F.3d at 70 ("Once a court determines that the initial application was 'properly filed,' the 'properly filed' inquiry comes to an end; the only remaining question is when further appellate review of the initial application becomes unavailable.").

In other words, the first interval between when the "converted" § 460.30 motion was decided and when the first motion to reargue was filed, and the second interval between when the first motion to reargue was decided and when the second motion to reargue was filed, must be tolled because further appellate review was available.*fn21 See, e.g., Carey, 536 U.S. at 219-20 (holding that "pending" period includes the time between a lower state court decision and petitioner's filing of a notice of appeal to a higher state court); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (tolling statute of limitations from date when § 440.20 motion filed until petitioner was denied leave to appeal Appellate Division's denial of petitioner's § 440.20 motion); Bellamy v. Fischer, 05-cv-2840, 2006 WL 2051038, at *4 (S.D.N.Y. July 24, 2006) (tolling entire period beginning with date § 440.10 motion was filed, through Appellate Division's denial of that motion, Court of Appeal's denial of motion for leave to appeal and period in which motion rearguing denial of leave to appeal was pending, and ending tolling on date motion to reargue was denied); Gomez v. Duncan, 02-cv-0846, 2002 WL 1424584, at *3-4 (S.D.N.Y. July 1, 2002) (Peck, M.J.) (tolling days between when leave to appeal denial of § 440 motion was filed and when motion to reargue denial of leave was filed, and tolling days between when leave to appeal coram nobis petition was denied and motion to reargue denial of leave to appeal coram nobis motion was filed); Foster v. Phillips, 03-cv-3629, 2005 WL 2978686, at *4 (S.D.N.Y. Nov. 7, 2005) (Freeman, M.J.) (§ 440.10 motion is "pending" from time it is initially filed until leave to appeal is denied by Appellate Division).

Having found that the "converted § 460.30" application remained pending until at least March 12, 2003, when the Second Department denied Perich's second motion to reargue, the statue is deemed tolled for 301 days -- from August 23, 2002 until March 12, 2003 -- and Perich must now account for an additional 346 days.

b. The Application Seeking Leave to Appeal the Three Orders of the Appellate Division

Respondent argues that except for Perich's motion purporting to file a notice of appeal and the two motions denying reargument of that motion, none of Perich's other post-conviction motions were "properly filed" under AEDPA, and thus cannot serve to toll the statute of limitations period. (Resp't's Mem. of Law, at 15.) Specifically, respondent argues that the statute should not be tolled from April 23, 2003, when Perich filed leave to appeal the three orders of the Second Department to the Court of Appeals, until July 18, 2003, when the Court of Appeals denied leave, because respondent contends those orders were not appealable. (Resp't's Mem. of Law, at 15.)

As a preliminary matter, respondent mischaracterizes the motion seeking leave to appeal the three orders of the Appellate Division as a separate post-conviction "application," rather than a motion that would extend the time during which the "converted" § 460.30 motion filed May 14, 2002 remained "pending." Rather, the appropriate question is when further "appellate review of the initial application [became] unavailable," Hizbullahankhamon, 255 F.3d at 70.

Applying that analysis here requires a determination of whether the application seeking leave to appeal the three orders of the Appellate Division was one properly brought in the Court of Appeals. See Geraci, 211 F.3d at 9 (holding Appellate Division's denial of coram nobis petition meant the application was no longer "pending" because the denial of the coram nobis petition was not appealable to the Court of Appeals).

It is well established that denials of motions to reargue are not appealable in New York. See CPL § 450.90 (entitled "[a]ppeal to court of appeals from order of intermediate court; in what cases authorized."). It follows that an application seeking leave to appeal an order denying a motion to reargue cannot serve to toll the limitations period under § 2244(d)(2). See Evans v. Senkowski, 228 F. Supp. 2d 254, 263 (E.D.N.Y. 2002) (citing cases).

Indeed, Judge Rosenblatt "dismissed" the portions of the application seeking leave to appeal the November 7, 2002 and March 13, 2003 orders, which were construed by the Second Department as motions to reargue. However, the portion of the application seeking leave to appeal the August 23, 2002 order was "denied" rather than "dismissed." People v. Perich, 100 N.Y.2d 585, 764 N.Y.S.2d 396, 793 N.E.2d 488 (2003) (Rosenblatt, J.) (Table).

Thus, the issue is whether the portion of the application seeking leave to appeal the August 23, 2002 order was sufficient to render the initial "converted" § 460.30 motion "pending" while before the Court of Appeals. To prevail on this point, petitioner must show (1) that his application complied with the requisite filing requirements, including timeliness and (2) that it was a motion properly brought in the Court of Appeals. See Carey, 536 U.S. at 220 ("[U]ntil the application has achieved final resolution through the State's post-conviction procedures, by definition it remains 'pending.'"); Evans, 228 F. Supp. 2d, at 260 ("AEDPA's toll . . . only applies to papers filed in connection with relief recognized under relevant state procedures.").

i. The Timeliness of the Portion of the Leave Application Seeking

Leave to Appeal the Order of August 23, 2002 Perich had 30 days after service of the copy of the August 23, 2002 order in which to file a motion seeking leave to appeal the order to Court of Appeals under CPL § 460.10(5)(a).*fn22 Perich did not file the motion seeking leave to appeal the three orders until March 12, 2003 -- well after the 30 day time period had elapsed.

Although mindful of the Supreme Court's admonition in Carey, 536 U.S. at 225-26, not to rely solely on the language of tersely-worded state court opinions in determining the timeliness of state court filings,*fn23 it seems Judge Rosenblatt construed Perich's application as a motion seeking permission to file a late application for a certificate granting leave under § 460.30(1), as the Second Department had construed a similar motion previously in this litigation.*fn24 The leave application was apparently considered a motion seeking permission to file a late notice of appeal. As such, the application was timely because it was filed in the Court of Appeals on March 12, 2003, well within 13 months after the August 23, 2002 order.*fn25

ii. The Appealability of the August 23, 2002 Order

The fact that the leave application was "denied" as to the August 23, 2002 order also supports the conclusion that the order was appealable to the Court of Appeals.

The Appellate Division's August 23, 2002 order states: Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is, ORDERED that the branch of the motion which is for leave to file a late notice of appeal from the judgment is denied; and it is further, ORDERED that on the court's own motion, the appeal from the execution of sentence is dismissed (see People v. Devillar, 264 AD2d 528); and it is further, ORDERED that the remaining branches of the motion are denied as academic.

People v. Perich, App. Div., 2d Dep't, Nos. 02-04705, 02-07366, Aug. 23, 2002, Prudenti, P.J., Altman, Feuerstein, JJ., Index No. 3422/00.

It is clear that the portion of the order construing Perich's notice of appeal and motion to proceed in forma pauperis as a motion to file a late notice of appeal under CPL § 460.30 was not appealable to the Court of Appeals because an order denying a § 460.30(1) motion is appealable only if "such order states that the determination was made upon the law alone."

CPL § 460.30(6)(a). See People v. Thomas, 44 N.Y.2d 759, 760, 405 N.Y.S.2d 684, 376 N.E.2d 1329 (1978); People v. Corso, 40 N.Y.2d 578, 581, 388 N.Y.S.2d 886, 889-90, 357 N.E.2d 357, 360 (1976). No such statement can be found in the August 23 order. See Raynor v. Dufrain, 28 F. Supp. 2d 896, 899 (S.D.N.Y. 1998) (finding petitioner's appeal of order denying leave to file a late notice of appeal under § 460.30(1) to the Court of Appeals "completely nugatory" as such order did not contain the statement required by § 460.30(6)).

However, the second branch of the order dismissing the appeal of the execution of sentence was appealable under CPL § 470.60.*fn26 Section 470.60(3) allows for an appeal to be taken to the Court of Appeals from an order of an intermediate appellate court dismissing an appeal thereto, provided that leave to appeal is granted by a certificate issued by a Judge of the Court of Appeals pursuant to CPL § 460.20(3)(b). In keeping with the limitations on the review power of the Court of Appeals, such an appeal may be based "either upon the ground that the dismissal was invalid as a matter of law or upon the ground that it constituted an abuse of discretion." Id.

Here, the leave to appeal was taken, in part, from the Appellate Division's dismissal of Perich's "appeal from the execution of sentence." Perich, App. Div., 2d Dep't, Nos. 02-04705, 02-07366, Aug. 23, 2002, Prudenti, P.J., Altman, Feuerstein, JJ., Index No. 3422/00. The Court of Appeals has entertained a similar appeal "from the execution of sentence," People v. Scott, 80 N.Y.2d 888, 587 N.Y.S.2d 900, 600 N.E.2d 627 (1992), confirming that the Court of Appeals does indeed have jurisdiction to entertain such leave applications. Id. (concluding that "the Appellate Division did not err as a matter of law in dismissing the appeal from an execution of judgment to that court."). Cf. People v. Pitts, 6 N.Y.2d 288, 291, 189 N.Y.S.2d 650, 160 N.E.2d 523, 524 (denying People's claim that court lacked jurisdiction to review order of Appellate Division dismissing appeal thereto as such dismissal "is a final determination and affects a substantial right of defendant"). See generally Arthur Karger, Powers of the New York Court of Appeals, § 20:18, at 709 n.4 (rev. 3d ed. 2005) (listing cases in which Court of Appeals reviewed orders of dismissals by Appellate Division pursuant to § 470.60(3) authority).

Again, whether the application seeking leave to appeal the Appellate Division's August 23, 2002 order extended the limitations period turns not the merits, but on whether the application was one "recognized" under the state court's procedural law, Stinson, 206 F.3d at 251-52, and whether it complied with filing requirements for such a motion. Evans, 228 F. Supp. 2d at 263. Because both of those questions are answered in the affirmative, the statute is deemed tolled until Judge Rosenblatt denied the application seeking leave to appeal on July 18, 2003. The New York Court of Appeals considered the application to be timely and denied it, at least in part; as such, it must be considered "properly filed."

Under the above analysis, the statute has run for a total of zero days, has been tolled for 329 days, and Perich now must account for an additional 218 days.

c. The Coram Nobis Petition and the Application Seeking Leave to Appeal the Denial of the Coram Nobis Petition

On July 18, 2003, the AEDPA limitations period began to run, and did so for 189 days, until Perich filed his next post-conviction application on January 23, 2004.*fn27 Respondent argues that this motion, a writ for error coram nobis alleging ineffective assistance of counsel, was not "properly filed" and thus could not toll the limitations period because coram nobis relief in New York is limited to ineffective assistance of appellate, not trial, counsel. (Resp't Mem. of Law, at 16.)

The Appellate Division's February 14, 2005 denial of the coram nobis application states:

Application by the appellant for a writ of error coram nobis, in effect, to vacate 1) a judgment of the Supreme Court, Queens County, rendered January 31, 2002, and 2) an execution of sentence of the same court dated May 14, 2002, so that he may be resentenced nunc pro tunc and file a notice of appeal, on the ground, inter alia, that his attorney failed to file a timely notice of appeal from the judgment of conviction . . . .

ORDERED that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 U.S. 745; People v. Stultz, 2 NY3d 277; People v. Bachert, 69 NY2d 593; People v. Montgomery, 24 NY2d 130).

People v. Perich, 15 A.D.3d 505, 789 N.Y.S.2d 435 (2d Dep't 2005).

Respondent argues that the Second Department's citation to Bachert and Montgomery, cases respondent contends "stand for the proposition that the relief petitioner sought was not available in that forum," indicate that the writ of error coram nobis was "improperly filed."*fn28 (Resp't's Mem. of Law, at 17.) The coram nobis petition, despite the ruling of the Court of Appeals, was nonetheless "properly filed" in the Appellate Division for purposes of § 2244(d)(2). While defendants cannot "create their own methods of seeking post-conviction relief by availing themselves of a state court's general motion practice," Adeline, 206 F.3d at 252, an "application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Id. These rules usually prescribe "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000).*fn29 Indeed, "[t]he question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Id. (emphasis in original; footnote omitted).

Respondent's argument that the "relief petitioner sought was not available in that forum" actually points to the difference between a "condition to filing," as opposed to a "condition for obtaining relief," as described in Artuz. Id. at 11 (emphasis added). Cf. Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) ("For purposes of determining what are 'filing' conditions, there is an obvious distinction between time limits, which go to the very initiation of a petition and a court's ability to consider that petition, and the type of 'rule of decision' procedural bars at issue in Artuz, which go to the ability to obtain relief.") (emphasis added). The Appellate Division specifically stated that Perich "failed to establish that he was denied the effective assistance of appellate counsel," Perich, 15 A.D.3d 505, 789 N.Y.S.2d 435 (2d Dep't 2005), indicating that the Appellate Division reviewed the merits of his petition, a fact inconsistent with a finding that the motion had been improperly filed.

Furthermore, despite respondent's characterization to the contrary, the February 14, 2005 order's citations to Bachert and Montgomery do not compel the conclusion that the petition was "improperly filed." Respondent appears to argue that the order's citation to Bachert supports respondent's position that claimed errors of trial counsel are to be brought as motions under § 440.10, and not as writs of error coram nobis in the Appellate Division. Respondent's position also seems to be that the court's citation to Montgomery should be read as implying that the relief petitioner sought in coram nobis petition was not available because Montgomery has been superceded by an act of the Legislature.

Respondent's characterization of the order denying the coram nobis petition is not persuasive. The court in Bachert decided that the proper procedural mechanism for bringing a claim of ineffective assistance of appellate counsel was not as a § 440.10 motion in the nisi prius court, as the defendant had argued, but rather as a writ for error coram nobis in the Appellate Division. Bachert, 69 N.Y.2d, 593, 509 N.E.2d 318, 516 N.Y.S.2d 623. The court noted that a motion under § 440.10(1)(h), which is brought in the court of conviction, was limited to a collateral attacks on whether "the judgment itself was obtained in violation of the defendant's rights." Id. On the other hand, "[a]ppellate courts do not render judgments of conviction; they only affect them," and thus to allow a claim of appellate court error to be brought under CPL § 440.10(1)(h) would "constitute legislation by judicial fiat." Bachert, 69 N.Y.2d, at 597, 516 N.Y.S.2d at 625, 509 N.E.2d at 320. Thus, the Bachert court concluded that an ineffective assistance of appellate counsel claim should be brought as a writ of error coram nobis in the Appellate Division, as coram nobis proceedings have traditionally been "addressed [in] the court which rendered the judgment or order from which relief is sought." Id. (citations omitted). In addition, as petitioner notes in his response papers, Bachert is often cited for the proposition that "the Legislature did not expressly abolish the common-law writ of coram nobis or necessarily embrace all of its prior unanticipated functions within CPL 440.10." Id.

Thus, one possible reading of the February 14, 2005 order's citation to Bachert is that the ineffective assistance claim was properly brought as a writ of error coram nobis, as the petitioner is not attacking any errors that could have been corrected by the trial court, but rather was seeking relief from the order of the Appellate Division denying his attempt to appeal.

Turning to the court's citation to People v. Montgomery, 24 N.Y.2d 130, 229 N.Y.S.2d 156, 247 N.E.2d 130 (1969), the issue in that case was whether a defendant's "allegation that he was not informed of his right to appeal presents an issue of fact which requires a hearing in order to determine the veracity of the contention." Montgomery, 24 N.Y.2d at 132, 229 N.Y.S.2d at 159, 247 N.E.2d at 132. Taking the opportunity to "announce clearly that every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process require that the right not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal," the court ordered that a hearing be held to determine whether the petitioner had been informed of his right to appeal. Montgomery, 24 N.Y.2d 130 at 134, 229 N.Y.S.2d at 159, 247 N.E.2d at 133. If, at the hearing, Montgomery's failure to file a notice of appeal was found attributable to his counsel's failure to advise him of his right to appeal, then he was to be "resentenced" so that time in which head to file an appeal would run anew, Montgomery, 24 N.Y.2d at 133-34, 247 N.E.2d at 133, 229 N.Y.S.2d at 161, a practice that later became known as granting "Montgomery relief."

Thus, the citation to Montgomery could be read as simply illustrating the underlying ineffective assistance rights alleged in the petition. Indeed, respondent's characterization of the order requires the further extrapolation that the Legislature's adoption of CPL § 460.30 statutorily replaced the relief formerly available under Montgomery. Yet, the case that better illustrates the fact that Montgomery relief is no longer available, People v. Corso, 40 N.Y.2d 578, 580, 388 N.Y.S.2d 886, 889, 357 N.E.2d 357, 359 (1976), was not cited in the order. See Corso, 40 N.Y.2d at 580, 388 N.Y.S.2d at 889, 357 N.E.2d at 360 ("While there is no history indicating that the Legislature explicitly sought to codify People v. Montgomery [] in CPL 460.30, the statute plainly and precisely deals with and encompasses the relief sought on a Montgomery claim and eliminates the necessity of resentencing for the purposes of taking a timely appeal.") (citations omitted).

More pertinent to the "properly filed" determination is that the Appellate Division appeared to review the merits of the petitioner's motion. The order cites Jones, 463 U.S. 745 (1983), a Supreme Court case broadly defining the standards for ineffective assistance of appellate counsel, and Stultz, 2 N.Y.3d 277, 810 N.E.2d 883, 778 N.Y.S.2d 431 (2004), the most recent New York Court of Appeals case interpreting the effective assistance standard for appellate counsel. This fact alone belies respondent's argument that the order's citation to Montgomery and Bachert indicates that the Appellate Division believed Perich's coram nobis petition was improperly filed.

If the Appellate Division did not have jurisdiction to consider the coram nobis petition, it certainly would not have cited cases articulating the standards for evaluating the merits of petitioner's claims. Thus, whatever the citation to Montgomery and Bachert may "stand for," it cannot be the fact that petitioner's writ for error coram nobis was not properly filed for purposes of § 2244(d)(2) in this case.

One New York State court has explicitly held that the proper remedy when a defendant alleges that his attorney failed to file a notice of appeal is for the defendant "to present his claim of ineffective assistance of counsel by writ of error coram nobis in the Appellate Division." People v. Morales, No. 2094/99, 2003 WL 1093005, at *5 (Sup. Ct. New York County Jan. 23, 2003). Moreover, several federal district courts have dismissed habeas petitions alleging ineffective assistance of counsel -- where the claim was the exact error alleged here, i.e., the failure to file a notice of appeal -- as not exhausting available state remedies under § 2254(b)(1)(a) because the petitioners had not previously sought coram nobis relief in state court. See Dumas v. Kelly, 105 F. Supp. 2d 66, 74-75 (E.D.N.Y. 2000) (dismissing petition raising unexhausted claim based on failure to file a notice of appeal because the claim was not raised via a writ of error coram nobis); Boyton v. Hicks, 02-cv-1439, 2003 WL 22087634, at *3 (S.D.N.Y. Sept. 9, 2003) (concluding that a writ of error coram nobis is the proper vehicle for bringing a claim of ineffective assistance of appellate counsel, "such as the failure to prosecute an appeal or to file a notice of appeal. In other words, an ineffective assistance claim based on the failure to file a notice of appeal is a challenge to the effectiveness of appellate counsel.") (citations omitted); Rodriguez v. People, 00-cv-1399, 2000 WL 962748, at *2-3 (S.D.N.Y. 2000) (Peck, M.J.) (dismissing habeas petition without prejudice because petitioner failed to exhaust available state remedies under § 2254(b)(1)(a) and directing petitioner to file a writ of coram nobis in the Appellate Division, First Department, to bring ineffective assistance of counsel claim for his counsel's failure to file a timely notice of appeal).

Had petitioner brought his ineffective assistance of counsel claim in a habeas petition in federal court before filing the coram nobis application in the Appellate Division, it would likely have been dismissed on the ground that he had failed to exhaust available state remedies under the reasoning set forth in Dumas, Boynton and Rodriguez, supra. In both Dumas and Rodriguez, the petitions were dismissed for failure to exhaust state remedies when the prisoners had not filed coram nobis applications in the Appellate Division, even though -- like petitioner -- both had previously filed motions, which were denied, for permission to file late notices of appeal under CPL § 460.30(1). See Dumas, 105 F. Supp. at 74; Rodriguez, 2000 WL 962748, at *2-3.

The coram nobis petition thus served to toll the limitations period for 388 days, from when it was filed January 23, 2003 until decided on February 14, 2005. Adding these tolled days to the 329 days tolled during the pendency of the "converted" § 460.30 application totals 717 days tolled. As explained in Part 2(c), Perich was required to toll the statute for 647 days, i.e., the number of days that elapsed between when the statute of limitations period was triggered on August 23, 2002, until the instant petition was filed on May 31, 2005. Having tolled the limitations period for 717 days, Perich's application was timely by 70 days. Calculated another way, the statute "ran" for 189 days between the date the Court of Appeals denied leave to appeal the "converted" § 460.30 motion until the filing of the coram nobis petition, and "ran" an additional 106 days between the date the Appellate Division denied the coram nobis petition until the instant federal habeas petition was filed on May 31, 2005. Thus, only 295 days ran under the statute, meaning that Perich's petition was timely filed with 70 days to spare.

Conclusion

For the foregoing reasons, respondent's motion to dismiss is denied. Respondent has sixty (60) days to respond to the merits of Perich's petition.

SO ORDERED:

David G. Trager United States District Judge


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