The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Petitioner James Brown ("Brown") is an inmate in the custody of the New York State Department of Correctional Services pursuant to a jury conviction in County Court, Otsego County, of rape in the first degree, sodomy in the first degree (two counts), assault in the first degree (three counts), robbery in the first degree (two counts) and kidnaping in the second degree, arising out of his abduction and physical and sexual assault of a 15-year-old girl.*fn1 The conviction was upheld on appeal. See People v. Brown, 806 N.Y.S.2d 262 (3d Dep't Dec. 8, 2005), leave to appeal denied 6 N.Y.3d 832 (Mar. 15, 2006). Brown brings this pro se proceeding for habeas corpus under 28 U.S.C. § 2254. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.4, United States Magistrate Judge David E. Peebles submitted a Report and Recommendation (Dkt. No. 11). The Court adopts Magistrate Judge Peebles' summary of the background of the case and the applicable law and does not repeat them here. As set forth below, the Court dismisses the petition both as untimely and on the merits.
The Report and Recommendation recommends dismissal of the petition on the ground of untimeliness. After concluding that Brown's time for filing under 28 U.S.C. § 2254 expired on June 13, 2007, over four months prior to the October 19, 2007 date of the petition, Magistrate
Judge Peebles finds that Brown has not demonstrated that the limitations period should be extended on grounds of equitable tolling, actual innocence, or any other ground. Because he finds the petition was untimely filed, Magistrate Judge Peebles does not address the merits of the petition. He concludes as follows:
The petition in this matter, in which Brown raises eight grounds for seeking habeas relief, was filed more than sixteen months after his conviction became final for AEDPA purposes, through expiration of the time for seeking certiorari review by the United States Supreme Court, and thus four months beyond the expiration of the governing one-year statute of limitations. Since petitioner has offered no plausible basis for concluding either that equitable tolling should be invoked in order to salvage his otherwise untimely petition or that he is actually innocent of the crimes of conviction, it is hereby respectfully RECOMMENDED that the petition in this matter be DISMISSED as untimely; and it is further RECOMMENDED that a certificate of appealability not be issued with respect to the claims set forth in his petition.
On June 22, 2010, after twice extending Brown's time to submit objections, the Court noted that no objections had been received and entered Judgment adopting the Report and Recommendation and closing the case (Dkt. Nos. 17, 18). On June 23, 2010, the Court received Brown's objection (Dkt. No. 19). In two letters dated June 25, 2010 (Dkt. Nos. 20, 21), Brown sets forth good cause for the delay in the Court's receipt of his objection, and accordingly the Judgment (Dkt. No. 18) is vacated. The Court accepts the objection, which addresses the timeliness issue as well as the merits of the petition. Upon de novo review of the entire matter, see 28 U.S.C. § 636(b)(1)(C), the Court dismisses the petition on both grounds. Timeliness On the timeliness issue, Magistrate Judge Peebles notes that Brown's time for filing his habeas petition expired on June 13, 2007, and that the petition was dated October 19, 2007. As Magistrate Judge Peebles observes:
In 'rare and exceptional circumstances' a petitioner may invoke the court's power to equitably toll the limitations period" imposed under the AEDPA. Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004), cert. denied, 546 U.S. 961, 126 S.Ct. 489 (2005) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)); Corrigan v. Barbery, 271 F. Supp.2d 325, 330 (W.D.N.Y. 2005) (citing Smith). Under this narrow exception, the AEDPA statute of limitations may properly be equitably tolled where a petitioner has diligently pursued his or her rights, but has been prevented by "extraordinary circumstances" from filing a petition. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814 (2005) (citation omitted); see also Menefee, 391 F.3d at 154. "To merit application of equitable tolling, the petitioner must demonstrate that he [or she] acted with reasonable diligence during the period he [or she] wishes to have tolled, but that despite his [or her] efforts, extraordinary circumstances beyond his [or her] control prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (internal quotation and citation omitted), cert. denied, 535 U.S. 1017, 122 S.Ct. 1606 (2002); see also Warren [v. Garvin], 219 F.3d [111,] 113 [2d Cir. 2000] (citing Smith); West v. Hamill, No. 04-CV-2393, 2005 WL 1861735, at *1 (E.D.N.Y. Aug. 1, 2005) (citing Smith).
As explanation for the delay, Brown writes in his petition:*fn2 Petitioner did not become aware that his State Court Appeal had become final until June 27, 2007, when after filing an Application for Leave to file a late Application for Leave to appeal to the New York State Court of appeals on June 1st, 2007, Petitioner received a letter from the Court of Appeals Clerk's Office stating that Petitioner's attorney Mr. MICHAEL T. SNYDER, Esq., who represented Petitioner on his direct appeal to the State Appellate Division, had filed an Application for Leave to Appeal to the Court of Appeals, which was denied on March 15, 2006. Petitioner was not informed of the State Highest Court decision by Appellate Counsel or the Clerk of the New York Court of Appeals. I[n] fact, Petitioner only became aware of the on June 27, 2007, some three months after the one year statute of limitations had expired.
Accepting the truth of this allegation does not explain the delay of nearly four months between June 27, 2007, when Brown learned of the Court of Appeals' March 15, 2006 denial of the application for leave to appeal, and October 19, 2007, the date of the instant petition. The Court agrees with Magistrate Judge Peebles that petitioner's claim that he was unaware of the denial of leave to appeal until a year and a half after the Appellate Division's decision affirming his conviction, with no indication of any attempt by petitioner to contact his attorney to inquire regarding the status of his appeal efforts, does not present the type of circumstance reflecting a diligent pursuit of rights foiled by extraordinary circumstances which would merit the invocation of equitable tolling. Smaldone, 273 F.3d at 138-39 (citing cases and noting that attorney error and/or negligence is not a valid basis for equitable tolling); see also, West, 2005 WL 1861735, at *2.
In his objection to the Report and Recommendation, Brown writes the following with respect to the timeliness issue:
Also, in regards to my petition being time-barred, on June 1st of 2007 I, being assisted by an inmate law Clerk, I completed, had notarized and handed my petition to the law library officer, with a facility disbursement form filled out for postage, to be placed with outgoing legal Correspondence. However, upon close scrutiny of my records, I've discovered that my signature on both my Writ of federal habeas corpus as well as an unfamiliar document concealed within my records are not my own. (copies enclosed)
Included with Brown's objection are what appear to be the first and last pages of Brown's June 1, 2007 letter (which he refers to in his petition) addressed to the New York State Court of Appeals "seeking an extension to the time within which to seek permission for leave to appeal to the Court of Appeals from a Decision and Order entered by the Appellate Division, Third Department, on or about March 15, 2006." It is signed "James Brown", notarized on June 1, 2007, and stamped "Received Jun 25, 2007 New York State Court of Appeals." It is not clear what point Brown is making in his objection regarding these pages, whether he wishes the Court to view them as the "petition" referred to in his objection (which he seems to allege is an earlier habeas corpus petition), or whether this is the document to which he refers as "an unfamiliar document concealed within [his] records" bearing a signature "not [his]own." Whatever significance Brown may assign to these pages, ...