The opinion of the court was delivered by: Seybert, District Judge
On October 4, 2004, Petitioner Reynaldo Cartagena ("Petitioner") filed a petition, pro se, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 22, 2004, the Court issued an Order directing Petitioner to show cause why his Petition should not be dismissed as time-barred by the one-year limitations period contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d). On December 3, 2004, Petitioner submitted an affidavit alleging that the limitations period should be equitably tolled because his attorney compromised his efforts to file a timely petition. On May 5, 2005, the Court issued an Order allowing Petitioner 60 days to obtain an attorney and scheduling an evidentiary hearing to determine whether Petitioner was entitled to equitable tolling. On April 13, 2006, the Court appointed counsel for Petitioner. In June 2007, after Petitioner's first appointed counsel failed to file supplemental papers with the Court and failed to respond to various communications, the Court appointed Petitioner's current counsel. On October 23, 2007, the Parties convened for an evidentiary hearing ("Hearing") before the Court. Following the Hearing, the Court requested additional briefing on the matter. The parties submitted post-hearing memoranda of law in November 2007, and Petitioner filed a response on December 3, 2007.
For the reasons set forth herein, the Petition is accepted as timely pursuant to 28 U.S.C. § 2244, as amended by the AEDPA.
The following facts are taken from the record before the Court and the testimony of Mr. George Harmel, Esq., Ms. Aida Cartagena, Petitioner's sister, and Petitioner, who all appeared at the Hearing. The Court finds the testimony of all the witnesses credible.
In January 1996, a jury convicted Petitioner of two counts of Kidnapping in the Second Degree and two counts of Robbery in the First Degree. The judgment of conviction was rendered on January 25, 1996. On October 9, 2001, the Appellate Division, Second Department, affirmed the conviction. People v. Cartagena, 287 A.D.2d 515, 731 N.Y.S.2d 469 (2d Dep't 2001). The New York State Court of Appeals denied Petitioner's request for leave to appeal on December 19, 2001. People v. Cartagena, 97 N.Y.2d 680, 764 N.E.2d 399 (2001). Petitioner did not seek a writ of certiorari from the Supreme Court of the United States. Petitioner's conviction therefore became final on March 20, 2002.*fn1
Very soon after Petitioner's request for leave to appeal to the New York State Court of Appeals was denied, his family contacted George Harmel, an attorney. (Evidentiary Hr'g Tr. 52, Oct. 23, 2007.) At the outset, the Court notes that, while Harmel's testimony was quite candid and credible, Harmel indicated that he was taking Flecainide, a medication for arrhythmia, as well as numerous other medications, which caused memory lapses at the time of the Hearing as well as at the time in question. (Hr'g Tr. 39.) Harmel testified that he recalled a member of Petitioner's family retaining him to review the record on appeal and that Petitioner's "desire was to go with a federal habeas corpus" petition. (Hr'g Tr. 7.) Corroborating this fact, Petitioner submitted a copy of a letter from Harmel, dated September 26, 2002, entitled "Re: Appeal via Writ of Habeus [sic] Corpus." (Pet'r Ex. 2.) The letter discussed a habeas petition and stated, in pertinent part, "we intend to proceed with a Federal Writ of Habeus [sic] Corpus" and "[w]e will expedite this appeal in a timely fashion." (Id.) Harmel testified that he could not recall whether he told Petitioner that there was a time limitation on filing the habeas petition, nor whether Harmel was even aware that the AEDPA was in effect at the time. (Hr'g Tr. 17.)
Whether or not he was aware of any time limitations, Harmel failed to file the habeas petition by the March 20, 2003 deadline or at all. Harmel testified that he intended to pursue Petitioner's case at the state level, but failed to communicate this intention to Petitioner. (Hr'g Tr. 11-12.) Several reasons appear to have contributed to Harmel's failure to pursue and file a habeas petition as originally agreed upon with Petitioner. Harmel testified that a paralegal in his office handled all work on habeas petitions, and that this paralegal had possibly come to the conclusion that there was no federal claim to pursue. In any event, the paralegal was subsequently arrested for forging a Second Circuit Judge's signature on a writ of habeas corpus, which caused the release of two prisoners from a state prison. (Hr'g Tr. 13.) Federal agents seized documents from Harmel's office, which were later returned. Harmel "lost track of [Petitioner's] file," and failed to find it at any subsequent time. (Hr'g Tr. 13.) Harmel failed to communicate any of these mishaps to Petitioner. (Hr'g Tr. 14.)
To compound matters, Harmel began suffering a series of physical ailments in 2002, the same year in which Petitioner's family retained Harmel to file a habeas petition. Harmel battled pneumonia, morbid obesity, respiratory problems, and arrhythmia, putting him "out of commission" and rendering him, at times, physically unable to practice law. (Hr'g Tr. 19-20.) He established residency in Florida and traveled to New York to work, "trying to do as little as possible in the office." (Hr'g Tr. 20.) Harmel's physical ailments eventually caused him to completely stop working at some point during 2004. Throughout this time, Harmel failed to communicate to Petitioner that he was seriously ill, or that there were any problems with Petitioner's case. (Hr'g Tr. 21.) Harmel testified that the failure to file the habeas petition, and to communicate this fact to Petitioner, was "[Harmel's] fault," since he was "ashamed to tell clients that [he was] sick, not working, [and couldn't] do it." (Hr'g Tr. 21.)
After retaining Harmel, Petitioner spoke with him by telephone approximately three times. (Hr'g Tr. 45.) Aside from these communications, Petitioner testified that he made many unsuccessful attempts at reaching Harmel, sometimes calling "twice a week, three times a week." (Hr'g Tr. 45-46.) Harmel's office would inform Petitioner that Harmel was in a conference or was otherwise unavailable. Petitioner testified that during their last telephone conversation, in September or October of 2003, he inquired into the timeliness of his habeas petition; Harmel told him not to worry and said that he would be able to get an extension if there was a problem. (Hr'g Tr. 46-47.) In addition to their phone conversations, Petitioner testified that Harmel sent him two letters that were destroyed in an incident at the Clinton Correctional Facility. (Hr'g Tr. 47.)
Ms. Cartagena, who retained Harmel on Petitioner's behalf, also testified at the Hearing. Ms. Cartagena also attempted to contact Harmel frequently - in person and by phone -- in order to inquire into her brother's case. On one occasion, Harmel assured her to "leave this to me. We have time." (Hr'g Tr. 43.) Lastly, Harmel testified that while he had no recollection of representing that Petitioner's habeas petition was being worked on or almost done, his paralegal may have told Petitioner or his family that Harmel was working on the petition. (Hr'g Tr. 27.)
The last communication that Petitioner or his family received from Harmel was a letter, dated April 20, 2004 ("April 2004 letter"). The letter, mailed to Ms. Cartagena's address, stated, "I have spent a great deal of time on your case. Your sister has great concern for you. I wish for her to see me in two weeks; at that time I will go over with her what we can do for you." (Pet'r Ex. C.) The letter further stated that despite the small amount of money that the family had paid thus far, Harmel would continue to help Petitioner. Harmel testified that while the signature on the letter was not his own, the contents appeared to be from him. (Hr'g Tr. 15.) The Court concludes that the April 2004 letter was sent at Harmel's direction or by someone in Harmel's office.
After receiving the April 2004 letter, Petitioner testified that he continued to call Harmel's office in an attempt to retrieve his paperwork, but never received a response. (Hr'g Tr. 50.) Moreover, Petitioner spoke with the prior attorney who had represented him at his state-court trial in order to have him call Harmel's office to inquire into the location of his paperwork. (Hr'g Tr. 56.) On October 4, 2004, approximately nineteen ...