The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
DOCUMENT ELECTRONICALLY FILED DOC #:
Christian Urena ("Petitioner"), pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his April 26, 2001 conviction and sentence in New York State Supreme Court, Bronx County, for Murder in the Second Degree, Attempted Murder in the Second Degree, and Assault in the First Degree. Urena was sentenced to thirty-five and a half years to life imprisonment, and is currently incarcerated at the Green Haven Correctional Facility in Stormville, New York.
Respondent William A. Lee, the Superintendent of Green Haven ("Respondent"), moves to dismiss the habeas petition as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1)(A). On December 9, 2011, Magistrate Judge Debra Freeman issued a Report & Recommendation ("R&R"), recommending that the Court grant Respondent's motion to dismiss.
After his state court conviction, Petitioner was indicted by a federal grand jury in the Southern District of New York. On January 26, 2006, before Petitioner filed his direct appeal regarding his state court conviction, he was transferred to federal custody where he remained until December 21, 2009.*fn1 Petitioner was again transferred to federal custody from April 1, 2010 through September 3, 2010.
Petitioner's direct state court appeal was filed on July 6, 2006 and denied on December 21, 2006. Leave to appeal was denied on February 20, 2007. Petitioner claims that he did not learn that his state appeals were denied until much later because notices addressed to state prison were not forwarded to him while in federal custody.
Under the AEDPA, a petitioner must file an application for a writ of habeas corpus within one year of his conviction becoming final. See 28 U.S.C. § 2244(d)(1). The AEDPA statute of limitations may be statutorily tolled, under 28 U.S.C. § 2244(d)(2), during the pendency of post-conviction applications or collateral review; or equitably tolled where the petitioner shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 130 S.Ct. 2549, 2560-62 (2010). The party seeking equitable tolling must show diligent pursuit of his claim "throughout the period he seeks to toll." Harper v. Ercole, 648 F.3d 132 (2d Cir. 2011).
Magistrate Judge Freeman found that Petitioner's habeas petition was
untimely because it was filed on February 28, 2011, nearly four years
after his conviction became final on May 21, 2007. (R&R 7.)*fn2
She further determined that neither statutory nor equitable
tolling was warranted here. (Id. 10.) Petitioner did not qualify for
statutory tolling because he did not seek state post-conviction or
other collateral review, such as a Petition for Certiorari with the
United States Supreme Court. (Id. 7.) Petitioner did not qualify for
equitable tolling because he failed to show that (1) he was pursuing
his rights diligently, and (2) there was some extraordinary
circumstance that stood in his way and prevented timely filing. (Id.
8-10.) Magistrate Judge Freeman acknowledged Petitioner's assertion
that his state mail was not received while in federal custody, but
nonetheless found that he had not pursued his rights diligently during
the time he seeks to toll. Petitioner made no inquiry into the status
of his case until February 26, 2010, nearly three years after leave to
appeal to the New York Court of Appeals was denied. Additionally, she
found that being held in federal custody from 2006 through 2009 and
for five months in 2010 did not excuse Petitioner's failure to
diligently pursue his rights. Magistrate Judge Freeman correctly held
that time in federal custody does not constitute an extraordinary
circumstance that would prevent timely filing. See Montalvo v. Strack,
No. 99 Civ. 5087 (JGK), 2000 WL 718439, at *2 (S.D.N.Y. June 5, 2000)
(transfers between prison facilities did not merit equitable tolling).
Accordingly, Magistrate Judge Freeman recommended that the Court grant
Respondent's motion to dismiss.
A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party makes a timely "specific written objection," the district court is obligated to review the contested issues de novo. Greene v. WCI Holdings Corp., 956 F. Supp 509, 513 (S.D.N.Y. 1997). The Court, however, may adopt those portions of the recommendation to which there is no "specific, written objection," as required under Fed. R. Civ. P. 72(b), as long as those sections are not clearly erroneous. Id.
Petitioner objected to Magistrate Judge Freeman's determination that equitable tolling does not apply, arguing that: (1) he mistakenly thought the pending federal criminal prosecution would toll his state habeas claim; (2) since he was facing the death penalty in the federal prosecution, his situation was "extraordinary"; (3) because he was in federal custody he had not received all of his mail addressed to him in state prison; (4) he was transferred between state and federal prisons; and (5) he did not receive ...