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Allen Harper v. Robert Ercole

July 26, 2011

ALLEN HARPER, PETITIONER-APPELLANT,
v.
ROBERT ERCOLE, RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Reena Raggi, Circuit Judge:

10-178-pr

Harper v. Ercole

Argued: March 21, 2011

Before:

MCLAUGHLIN, CALABRESI, and RAGGI, Circuit Judges.

Allen Harper appeals from a judgment of the United States District Court for the Eastern District of New York (Vitaliano, J.; Bloom, M.J.) dismissing as untimely his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court assumed that Harper satisfied the requirements for equitable tolling of a three-month period when he was hospitalized. Nevertheless, the district court concluded that the petition was untimely because Harper failed to demonstrate reasonable diligence in pursuing his claim in the two-

month period between his hospital discharge and filing. We conclude that no such demonstration of diligence is required where, as here, the petition was filed within one year of the total untolled time after the challenged conviction became final.

VACATED and REMANDED.

New York State prisoner Allen Harper appeals from a judgment of the United States District Court for the Eastern District of New York (Eric N. Vitaliano, Judge; Lois S. Bloom, Magistrate Judge) dismissing as untimely his pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See Harper v. Ercole, No. 08-CV-3442, 2009 WL 4893196, at *2 (E.D.N.Y. Dec. 16, 2009). The district court assumed that Harper was entitled to equitable tolling for a three-month period of hospitalization. It nevertheless concluded that the petition was untimely because Harper failed to demonstrate diligence in pursuing his claim in the time between his hospital discharge and filing. We now clarify that a litigant who seeks equitable tolling based on extraordinary circumstances and who establishes causation is required to show reasonable diligence in pursuing his claim throughout the period he seeks to have tolled. Once tolling ends and the limitations clock resumes, a § 2254 petition is timely as long as it is filed before the total untolled time exceeds one year. Here, the record shows that at the time of Harper's 2008 hospitalization, 288 days had run and seventy-eight days remained on the one-year statute of limitations.*fn1 Thus, if the limitations period is tolled for the ninety-eight-day period of Harper's hospitalization,*fn2 his § 2254 filing sixty-five days after discharge was within one year of the total untolled time after his conviction became final and, thus, was not untimely. Accordingly, we vacate the judgment of dismissal and remand for further proceedings consistent with this opinion.

I. Background

A. Harper's New York State Conviction

Allen Harper was convicted in 2002 after a jury trial in Kings County of robbery in the first and second degrees, see N.Y. Penal Law §§ 160.10[1], 160.15[4], and criminal possession of a weapon in the third degree, see id. § 265.02[4] (since repealed). Sentenced as a persistent violent felony offender, Harper is presently serving concurrent indeterminate prison terms of twenty-, sixteen-, and twelve-years-to-life. Harper's conviction was affirmed in 2006 on both direct appeal, see People v. Harper, 32 A.D.3d 16, 818 N.Y.S.2d 113 (2d Dep't 2006), and review by the New York Court of Appeals, see People v. Harper, 7 N.Y.3d 882, 826 N.Y.S.2d 594 (2006).

B. The § 2254 Petition

1. The Chronology of Harper's Filing

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, Harper's state conviction became final on May 14, 2007, ninety days after the New York Court of Appeals denied his motion to reargue. See People v. Harper, 8 N.Y.3d 852, 830 N.Y.S.2d 696 (2007); Dillon v. Conway, 642 F.3d 358, 360 n.3 (2d Cir. 2011). Consequently, under AEDPA's one-year limitations period, see 28 U.S.C. § 2244(d)(1), Harper had until May 14, 2008, to file a federal habeas petition under 28 U.S.C. § 2254. With seventy-eight days remaining in the period, Harper was hospitalized on February 27, 2008, and remained confined until June 3, 2008. Sixty-five days later, on August 7, 2008, Harper filed his § 2254 petition, raising constitutional challenges to his conviction based on preliminary jury instructions, the denial of a suppression motion, and statements made by the prosecutor in summation.

In presenting these claims, Harper acknowledged that his petition was not filed within one year of his conviction becoming final. Nevertheless, he urged that AEDPA's limitations period be equitably tolled as a result of the extraordinary circumstances presented by his hospitalization. Harper explained that while hospitalized, he underwent multiple surgeries, experienced life-threatening complications, and did not have access to his legal papers. Respondent, who had ...


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