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Arvin Collins v. Robert Ercole

January 26, 2012


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


Collins v. Ercole

Argued: August 31, 2011

Before: LIVINGSTON, LOHIER, and CARNEY, Circuit Judges.

Petitioner-Appellant Arvin Collins ("Petitioner") appeals from a judgment and order of the United States District Court for the Southern District of New York (Hellerstein, J.) granting Respondent-Appellee Robert Ercole's motion to dismiss Petitioner's petition for a writ of habeas corpus as untimely. Petitioner contends that the district court erred by declining to hold the statute of limitations tolled by certain post-conviction motions filed by Petitioner. Finding no error in the district court's conclusion that those motions did not toll the limitations period, we AFFIRM.

In 2001, Petitioner-Appellant Arvin Collins ("Petitioner") was convicted of murder and attempted murder in New York state court. In 2005, Petitioner's 2001 judgment of conviction became final, following the conclusion of direct review. Between 2005 and 2008, Petitioner brought several post-conviction motions in state court. In 2008, Petitioner filed a federal petition for a writ of habeas corpus regarding the 2001 judgment of conviction. The district court (Hellerstein, J.) dismissed the petition as untimely under 28 U.S.C. § 2244(d)(1).

On appeal, Petitioner contends that the district court erred by holding that certain of his state applications for post-conviction relief had not tolled the governing one-year statute of limitations under 28 U.S.C. § 2244(d)(2). Section 2244(d)(2), however, limits tolling to those applications for post-conviction or other collateral review that are made "with respect to the pertinent judgment"-- here, the 2001 conviction and sentence. The applications at issue in this appeal were directed neither to the 2001 conviction nor to the sentence imposed thereon; they concerned only a post-conviction administrative determination that the 2001 sentence ran consecutively (rather than concurrently) to an earlier undischarged prison term. We hold, therefore, that those applications did not toll the statute of limitations, and affirm the judgment of the district court.


This appeal arises from the dismissal of a petition for a writ of habeas corpus. In resolving the present appeal, however, we must begin with another, earlier conviction and prison term. In 1988, Petitioner was convicted of first- degree robbery in state court and sentenced to an indeterminate prison term of seven to fourteen years. He was released on parole in 1996; in 1999, he was arrested again, this time for murder. In 2001, Petitioner pled guilty to two counts of second-degree murder and one count of second-degree attempted murder.

The court imposed two terms of twenty-five years to life for the two counts of murder, pursuant to New York State Penal Law § 70.00. Because of Petitioner's previous robbery conviction, the attempted murder counted as a second violent felony under New York law, and the court imposed a sentence of twenty-five years under Penal Law § 70.04. The trial court imposing sentence in 2001 directed that these three terms were to run concurrently. Where, however, a sentence is imposed pursuant to § 70.04 on an individual who is subject to a prior undischarged prison term, that sentence must run consecutively to the previous term. N.Y. Penal Law § 70.25(2-a). Therefore, the New York State Department of Correctional Services (DOCS), in calculating the total period of incarceration, determined that the undischarged portion of the robbery prison term should be added to the 2001 sentence, minus the two years served by Petitioner between his second arrest and second sentencing. Petitioner appealed his conviction to the Appellate Division, First Department, which affirmed in October 2004. The Court of Appeals denied leave to appeal on December 27, 2004. Petitioner did not petition for certiorari to the U.S. Supreme Court, and the ninety-day period in which he was entitled to do so expired on March 28, 2005. The following day, therefore, the one-year statute of limitations for filing a habeas petition began to run. See 28 U.S.C. § 2244(d)(1).

Between March 28, 2005 and the filing in 2008 of his habeas petition,*fn1 Petitioner filed a number of state post-conviction motions. His first filing was a petition under New York Civil Practice Law and Rules Article 78, claiming that DOCS's determination that the 1988 and 2001 sentences ran consecutively was contrary to law; he also later filed a motion to renew that petition. Petitioner additionally filed a motion under New York Criminal Procedure Law § 440.10 to vacate his conviction, and he filed two motions under § 440.20 to set aside his sentence. The first of the two § 440.20 motions also requested in the alternative that Petitioner be allowed to withdraw his guilty plea and stand trial.

Petitioner's 2008 habeas corpus petition alleged that he had received ineffective assistance of counsel, and that the evidence supporting his conviction was tainted by various alleged violations of Petitioner's Fourth and Fifth Amendment rights. The habeas petition did not mention the DOCS sentencing calculation that was the subject of the earlier Article 78 petition.

Following the filing of the petition for habeas corpus, on April 20, 2009, the district court (Hellerstein, J.) directed Respondent to file an answer. On July 16, 2009, Respondent filed a motion under Fed. R. Civ. P. 12(b)(6) to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1). Petitioner, proceeding pro se, filed his opposition to the motion to dismiss on or about October 26, 2009. The district court granted the motion to dismiss the petition as time-barred on March 19, 2010, and denied a certificate of appealability.*fn2

Petitioner timely filed a notice of appeal and motion for a certificate of appealability with this Court; a panel of this Court granted that motion on October 1, 2010, limited to the issue of whether the one-year limitations period of ยง 2244(d)(1) had been tolled by Petitioner's ...

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