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Gregory A. White v. James Conway

March 31, 2011


The opinion of the court was delivered by: Scullin, Senior Judge

APPEARANCES OF COUNSEL THE OFFICE OF DONALD M. DONALD M. THOMPSON, ESQ. THOMPSON, PC The Powers Building 16 West Main Street, Suite 243 Rochester, New York 14614 Attorneys for Petitioner OFFICE OF NEW YORK STATE THOMAS B. LITSKY, AAG ATTORNEY GENERAL 120 Broadway New York, New York 10271 Attorneys for Respondent



On September 21, 2007, Petitioner commenced this proceeding pursuant to 28 U.S.C. § 2254, claiming that Petitioner's conviction was the product of various constitutional violations. In his petition, Petitioner set forth numerous grounds for relief, including challenges to certain evidentiary rulings, the sufficiency of the evidence against him, and the propriety of the sentence that the trial court imposed. See Dkt. No. 1. Respondent challenged the petition as untimely, as well as on the merits. See Dkt. No. 12.

In a Report-Recommendation & Order dated January 18, 2011, Magistrate Judge Lowe recommended that the Court dismiss the petition as untimely because Petitioner filed it one-day late and because Petitioner offered no basis to excuse his late filing. See Dkt. No. 17.

Currently before the Court are Petitioner's objections to the January 18, 2011 Report-Recommendation & Order. See Dkt. No. 18-19.


In 1995, Petitioner lived in Chittenango, New York, with his wife AW and his stepchildren JD, SD, and JS.*fn2 In 1999, Petitioner was charged in a six-count indictment with having committed various sexual acts in "the latter part of 1995" with his then-ten and thirteen-year-old stepdaughters. The indictment alleged that Petitioner forced both victims to engage in oral sexual conduct and had sexual intercourse with the thirteen-year-old victim, all while playing his version of a game of "Truth or Dare" in his home.

Following an investigation, Petitioner was arrested on August 13, 1998. After being given his Miranda warnings, Petitioner admitted to playing "Truth or Dare" with the children while they were naked. Moreover, he admitted that, during the game, JD performed a sexual act for him.

Following a jury trial in Madison County Court, the jury found Petitioner guilty of the charges. The trial court subsequently sentenced him on the most serious charges to two consecutive prison terms of 12-1/2 to 25 years. On March 16, 2006, the Appellate Division, Third Department, affirmed Petitioner's convictions, see People v. White, 27 A.D.3d 884 (3d Dep't 2006); and, on June 22, 2006, the New York State Court of Appeals denied leave to appeal, see People v. White, 7 N.Y.3d 764 (2006).

On September 21, 2007, Petitioner's counsel filed this petition on Petitioner's behalf. In his petition, Petitioner alleged that the trial court erred (1) by denying his motion for suppression of statements; (2) by denying his motion to dismiss the indictment; (3) by denying his speedy trial motion; (4) by unduly restricting cross-examination of prosecution witnesses; (5) by precluding him from presenting witness testimony; (6) by refusing to instruct the jury pursuant to New York Criminal Procedure Law § 710.70; and (7) by refusing to instruct the jury as to "prompt outcry." Petitioner also alleged that (1) the jury's verdict was not supported by legally sufficient evidence and was against the weight of the evidence; (2) the cumulative effect of all errors denied him a fair trial; and (3) the sentence imposed was harsh and excessive.

In his January 18, 2011 Report-Recommendation & Order, Magistrate Judge Lowe found the petition untimely and, therefore, did not address the merits of Petitioner's arguments. See Dkt. No. 17 at 1-2. Specifically, the court found that "Petitioner's conviction became final ninety days after the June 22, 2006 denial of his application for leave to appeal, or on September 20, 2006." See id. at 4. As such, the court found that the petition, which was filed on September 21, 2007, was one-day late and, therefore, untimely. See id.

Moreover, Magistrate Judge Lowe found unpersuasive Petitioner's arguments that the mailbox rule should apply even though he was represented by counsel. See id. at 5. Magistrate Judge Lowe also determined that Petitioner presented no exceptional circumstances to warrant equitable tolling. See id. at 6-8. Magistrate Judge Lowe noted that the fact that the petition was filed only one-day late and that the late filing was because of an "unusual delay" in the mail did not constitute the "exceptional circumstances" necessary to warrant equitable tolling. See id. Finally, Magistrate Judge Lowe held that Petitioner failed to come forward with any new evidence to support a claim of actual innocence and recommended that the Court decline to issue a certificate of appealability. See id. at 8-9.


A. Timeliness of the petition

1. Standard of review

When a party makes specific objections to a magistrate judge's recommendations, the district court engages in de novo review of the issues raised in the objections. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (citation omitted). When a party fails to make specific objections, however, the court reviews the magistrate judge's recommendations for clear error. See id. at 306 (citation omitted); see also Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations omitted).

2. Mailbox rule

Petitioner asserts that Magistrate Judge Lowe improperly concluded that, because he is represented by counsel, the mailbox rule is inapplicable. See Dkt. No. 18 at 4.*fn3 Petitioner argues that, had he mailed the petition to the Court instead of to his counsel, the Court would have considered the petition filed as of September 14, 2007 -- the date he gave the petition to prison officials to mail. See id.

Under the prison-mailbox rule, the court deems a pro se prisoner's complaint filed on the date that the prisoner delivered the complaint to prison officials for transmittal to the court. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (citing Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 2382, 101 L. Ed. 2d 245 (1988)). "This 'prison mailbox' rule is justified by the litigant's dependence on the prison mail system and lack of counsel to assure timely filing with the court." Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (citation omitted) (emphasis added).

As Magistrate Judge Lowe correctly held, the prison mailbox rule is inapplicable to the present matter because Petitioner was represented by counsel. See Dkt. No. 17 at 5 (citations omitted). Petitioner has presented no justification for extending this rule to petitioners who are represented by counsel. See Brockway v. Burge, 710 F. Supp. 2d 314, 322 (W.D.N.Y. 2010) (holding that, because the petitioner "was proceeding with the assistance of counsel with regard to the preparation and filing of his habeas Petition, . . . [the] prisoner mailbox rule is inapplicable (citations omitted)).

Accordingly, the Court affirms Magistrate Judge Lowe's conclusion that the prison mailbox rule does not apply to the present matter.

3. Statute of limitations

Section 2254 of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs federal habeas corpus review of a state-court conviction. Since Petitioner filed his petition after the AEDPA was enacted, the petition is subject to a one-year statute of limitations that runs from the latest of the following four events:

(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).

For Petitioner, like most habeas petitioners, section 2244(d)(1)(A) sets the applicable starting point for the one-year statute of limitations -- that is, "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]" 28 U.S.C. § 2244(d)(1)(A).

Rule 6(a) of the Federal Rules of Civil Procedure governs the method for computing time periods, including the application of controlling statutes of limitations, in actions pending in federal court. See United States v. Hurst, 322 F.3d 1256, 1260 (10th Cir. 2003) (quotation omitted); see also Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990) (quotation omitted).*fn4 Rule 6(a)(1) directs that when applying a prescribed time, "exclude the date of the event that triggers the period[,]" but include the last day unless it falls on a Saturday, Sunday, a legal holiday, or a day on which weather or other conditions make the clerk's office inaccessible. See Fed. R. Civ. P. 6(a)(1) and (3).*fn5 "Under [Rule 6(a)(1)], when a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the relevant act. The anniversary date is the 'last day to file even when the intervening period includes the extra leap year day.'" Hurst, 322 F.3d at 1260 (quoting [United States v.] Marcello, 212 F.3d [1005,] 1010 [(7th Cir. 2000)]); see also Day, 909 F.2d at 79 (quotation and other citation omitted).

In the present matter, the New York Court of Appeals denied Petitioner's application for leave to appeal on June 22, 2006. See People v. White, 7 N.Y.3d 764 (2006); see also Dkt. No. 1 at 2. Since Petitioner did not file a petition for a writ of certiorari with the United States Supreme Court, his conviction became final on Wednesday, September 20, 2006, i.e., ninety (90) days after the Court of Appeals denied him leave to appeal, which is the date his time to file a petition seeking a writ of certiorari from the Supreme Court expired. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (citations omitted).

Petitioner does not contend that Magistrate Judge Lowe improperly determined the date that his conviction became final; rather, he contends that Magistrate Judge Lowe should have equitably tolled the statute of limitations because he filed his petition only one-day late, and that this late filing was a result of confusion stemming from language in several cases providing that the statute did not begin to run until the day after the conviction became final.

In Day v. Morgenthau, 909 F.2d 75 (2d Cir. 1990), albeit in the civil rights context, the Second Circuit held that, even though the day that the action accrues is not counted pursuant to Rule 6(a) of the Federal Rules of Civil Procedure, "'[w]hen the applicable limitations period is measured in years, . . . the anniversary date [of the date of accrual is] the last day for instituting action.'" Id. at 79 (holding that Rule 6(a) should have the same result as New York General Construction Law § 20, which also provides that the first day to be counted is the day after the date of accrual (quotation and other citation omitted)) (emphasis added). As such, the Second Circuit held that the action, filed on December 13, 1988, alleging an unlawful arrest and search that occurred on December 12, 1985, was one-day late and dismissed the complaint. See id.; see also Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (applying Day and Rule 6(a) of the Federal Rules of Civil Procedure in the context of a petition brought pursuant to 28 U.S.C. § 2254 (citations omitted)).

Here, Petitioner's date of accrual was September 20, 2006; and, therefore, pursuant to Rule 6 of the Federal Rules of Civil Procedure, Petitioner had until September 20, 2007 (the anniversary of the date of accrual) to file his petition. Accordingly, the Court finds that Magistrate Judge Lowe correctly determined that Petitioner filed his petition one-day late.

4. Equitable tolling

Petitioner asserts that Magistrate Judge Lowe should have equitably tolled the statute of limitations because he filed his petition only one-day late and because of "the unsettled status of the law relative to the calculation of the applicable filing period." See Dkt. No. 19 at 3. Moreover, Petitioner contends that Magistrate Judge Lowe should have granted him a certificate of appealability on the issue of whether the statute of limitations should be equitably tolled where a petition is filed one-day late because of miscalculation of the relevant filing period -- "an issue that is currently pending before the Second Circuit in Dillon v. Conway . . . following the Second Circuit's order dated February 10, 2010 granting petitioner's motion for a certificate of appealability on this ground." See id.

Since courts have construed the AEDPA's one-year period as a statute of limitations rather than a jurisdictional bar, courts may equitably toll the period. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citations omitted). However, "[e]quitable tolling applies only in the 'rare and exceptional circumstance[ ].'" Id. (quotation omitted).

"In order to equitably toll the one-year period of limitations, [the petitioner] must show that extraordinary circumstances prevented him from filing his petition on time." Id. (citation omitted). "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Id. (citation omitted). Moreover, the petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (citations omitted).

In general, the difficulties attendant to prison life, such as "transfers between prison facilities, solitary confinement, lockdowns, restricted access to the law library, and an inability to secure court documents do not by themselves qualify as extraordinary circumstances." Amante v. Walker, 268 F. Supp. 2d 154, 158 (E.D.N.Y. 2003) (citation omitted). Moreover, simple ignorance of the applicable rules does not excuse a petitioner's failure to file a timely petition. See Plowden v. Romine, 78 F. Supp. 2d 115, 120 (E.D.N.Y. 1999).

In the present matter, Petitioner contends that his counsel mailed him the petition for his signature, by overnight mail, on September 12, 2007. See Dkt. No. 16 at 27. Petitioner signed the petition "and [it was] taken from him for mailing by prison officials on the morning of September 14, 200[7]."*fn6 See id. The petition, however, did not arrive in counsel's office until September 21, 2007, and counsel filed it that same day. See id. Petitioner claims that such an "unanticipated, uncharacteristic, virtually unprecedented, and substantially longer than the normal and customary one-day mailing period for similar papers mailed from Attica Correctional Facility" warrants the application of equitable tolling. See id.

Magistrate Judge Lowe concluded "that an alleged one-week lapse in time between the date that Petitioner signed the petition and the date that counsel received the petition is [not] an extraordinary circumstance warranting tolling." See Dkt. No. 17 at 7. Further, Magistrate Judge Lowe noted that, even if this were an unusual delay beyond Petitioner's control, Petitioner's counsel could have avoided this problem by mailing the petition earlier or by personally bringing it to Petitioner for his signature. See id. (citing Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999) (holding that, "[w]hile the inefficiencies of the United States Postal Service may be a circumstances beyond [the petitioner's] control, the problem was one that [petitioner's] counsel could have avoided by mailing the [28 U.S.C. § 2255] motion earlier or by using a private delivery service or even a private courier")).

Similarly, the fact that Petitioner filed only one day late does not warrant the application of equitable tolling. See Richard v. Rock, No. 9:08-CV-145, 2009 WL 383762, *7 (N.D.N.Y. Feb. 10, 2009) (holding that "the fact that the filing was only one day late is not itself a basis for equitable tolling" (citations omitted)); United States v. Locke, 471 U.S. 84, 101 (1985) (holding that, "[i]f 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline"). Moreover, the Second Circuit has held that "attorney error normally will not constitute the extraordinary circumstances required to toll the AEDPA limitations period[.]" Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003).*fn7

Based on the foregoing, the Court finds that Petitioner failed to present extraordinary circumstances justifying the untimely filing of his petition and adopts Magistrate ...

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