Petitioner Nathan Saunders appeals from the district court's order dismissing his petition for a writ of habeas corpus as untimely. Because we find the petition untimely upon our de novo review, we hold that the district court did not err in dismissing the petition. We further hold that the district court acted within its discretion in denying equitable tolling. Affirmed.
Before: PARKER, Circuit Judge, and HAIGHT, Judge.*fn1
Petitioner Nathan Saunders seeks review of an order of the Untied States District Court for the Northern District of New York (Kahn, J.), dismissing his petition for a writ of habeas corpus as untimely. The petition, filed pursuant to 28 U.S.C. § 2254, challenged Saunders's New York State conviction for two counts each of Kidnapping in the First Degree and Endangering the Welfare of a Child, and one count each of Kidnapping in the Second Degree, Assault in the Second Degree, Escape in the Second Degree, and Unlawful Imprisonment in the First Degree. Upon dismissing the petition, the district court sua sponte issued a certificate of appealability on the issue of whether equitable tolling should apply to Saunders's case. We amended the certificate to include the antecedent issue of whether the petition was timely. Upon de novo review, we find no error in the district court's determination that the petition was untimely, and hold that the district court did not abuse its discretion in denying equitable tolling. Affirmed.
The following facts are not in dispute. Saunders was convicted in Albany County Court of several counts of kidnapping, endangering the welfare of a child, escape, and assault in violation of New York State law arising from an incident that occurred while he was an inmate at the Hudson Correctional Facility in Columbia County, New York. In the morning of August 29, 1994, Saunders walked away from his work detail at the Department of Correctional Services Training Academy in Albany, New York, without permission and taking a knife, and went to the home of Passion Jones, his fifteen-year-old ex-girlfriend and mother of his child. He assaulted Jones and held her, their eight-month-old baby, and Jones's mother hostage. The police were called, and a fifteen-hour standoff ensued. Saunders eventually fell asleep, and the police stormed the apartment, rescued the hostages, and captured Saunders. As a result of those events, Saunders was indicted and convicted of the charges listed above. He was sentenced on July 25, 1995 to a term of twenty-nine years to life in prison.
Saunders appealed his conviction to the New York State Appellate Division, Third Department, raising six arguments: 1) the conviction for kidnapping in the first degree was against the weight of the evidence; 2) prosecutorial misconduct based on an alleged failure to turn over certain photographic evidence and allegedly improper remarks to the jury during voir dire and summation; 3) juror misconduct; 4) that he was not permitted to testify at his grand jury proceedings, and thereby deprived of his right to counsel; 5) the trial court erroneously admitted evidence of his prior criminal history; and 6) that his sentence was unduly harsh and excessive. The Appellate Division affirmed his conviction on May 13, 1999, but agreed that the sentence was excessive and reduced it to twenty years to life. People v. Saunders, 261 A.D.2d 718, 722 (3d Dept. 1999). The New York State Court of Appeals on November 18, 1999 denied Saunders's application for leave to appeal. People v. Saunders, 94 N.Y.2d 829, 829 (1999).
On February 13, 2001, almost a year and three months after the New York Court of Appeals' denial of leave to appeal, Saunders filed with the Albany County Court a motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. On May 30, 2001, the County Court denied the § 440.10 motion, but granted permission to appeal that denial to the Appellate Division. On January 23, 2003, the Appellate Division affirmed the County Court's denial of Saunders's § 440.10 motion. Saunders sought permission to appeal the denial of his § 440.10 motion to the New York Court of Appeals, but permission was denied by order dated May 20, 2003. People v. Saunders, 100 N.Y.2d 542, 542 (2003). Notice of the order was sent to Saunders by mail, and he contends that he did not receive the notice until May 27, 2003.
On May 27, 2003, the same day that he claims to have received the notice of the final state court decision regarding his § 440.10 motion, Saunders, represented by counsel, filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of New York pursuant to 28 U.S.C. § 2254, alleging (1) that he was denied the effective assistance of counsel during the grand jury proceeding and (2) that information about his prior criminal history had been admitted into evidence in violation of his right to due process. The district court directed Saunders to file an Amended Petition so that the court could determine whether Saunders's petition had been timely filed, which Saunders did on July 9, 2003. The respondent on September 15, 2003 submitted filings in opposition to Saunders's petition. On December 19, 2006, the court referred the matter to Magistrate Judge Bianchini for a Report and Recommendation ("R&R").
The magistrate's R&R of March 8, 2007 recommended that the petition be dismissed as untimely, finding that the statute of limitations expired on May 23, 2003, four days before Saunders filed his habeas petition. The R&R noted that Saunders, "through his attorney, essentially concede[d] that the Petition is time barred," but sought equitable tolling, and recommended against such tolling. Saunders filed objections to the R&R in which he argued that the petition was not time-barred, and, in the alternative, argued that equitable tolling should apply to his case. The district court adopted the R&R in full and dismissed the petition pursuant to 28 U.S.C. § 2254(d)(1). The district court sua sponte granted a certificate of appealability "for the limited purpose of determining whether equitable tolling is appropriate under the facts presented in the case at bar-since the Report and Recommendation did not reach or consider the merits of this case."
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), established a one-year statute of limitations for the filing of petitions for writs of habeas corpus under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). The limitations period begins running on the latest of several events, in this case, the date upon which the challenged state court conviction became final. 28 U.S.C. § 2244(d)(1)(A). The district court found that in Saunders's case, the statute of limitations expired four days prior to the filing of his petition for a writ of habeas corpus. On appeal, the plaintiff presents two main arguments:
(1) the district court erred in finding his habeas petition untimely; and, (2) if the petition was untimely, the district court erred in refusing to equitably toll the statute of limitations. We ...