United States District Court, N.D. New York
ORDER PROVIDING FOR SUPPLEMENTAL BRIEFING REGARDING EQUITABLE TOLLING BASED ON MENTAL ILLNESS
JAMES K. SINGLETON, Jr., Senior District Judge.
Jeremie Smith, a New York state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Smith is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Great Meadow Correctional Facility.
Smith filed his Petition for Writ of Habeas Corpus with this Court on April 14, 2013. On August 1, 2013, Respondent filed a motion requesting that it be permitted to limit its answer to the issue of the timeliness of Smith's Petition. This Court granted Respondent's request and required Respondent to also address in its answer whether there was a basis for equitable tolling or otherwise extending the statute of limitations. Smith subsequently filed six affidavits in support of his Petition. Respondent answered, arguing that Smith's Petition was untimely, equitable tolling did not apply, and Smith failed to make a gateway showing of actual innocence. Smith then filed a Traverse as well as two Supplemental Traverses. Because this Court granted Respondent's request to limit its response to timeliness, only timeliness is addressed here.
Smith's Petition is untimely. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), imposes a one-year statute of limitations which runs from the latest of four events: 1) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking direct review; 2) the date on which an impediment to filing an application created by state action in violation of the Constitution or federal law is removed; 3) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right is newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 4) the date on which the factual predicate of the claim or claims presented could have been discovered through due diligence. 28 U.S.C. § 2244(d)(1). Only the first and fourth scenarios apply here.
A. 28 U.S.C. § 2244(d)(1)(A)
Smith's judgment of conviction was entered on June 29, 2009, and he did not appeal. His judgment became final 30 days later, on July 29, 2009, when the time for filing a notice of appeal expired. See N.Y. CRIM. PROC. LAW ("CPL") § 460.10. Smith had one year from that date to file his Petition with this Court. Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (per curiam). Smith filed his Petition with this Court on April 14, 2013, over 3 years and 8 months after that deadline.
B. 28 U.S.C. 2244(d)(1)(D)
Although Smith did not raise the issue in his Traverse or supplemental filings, Smith could conceptually argue that the statute of limitations should not run from the date of entry of his judgment of conviction because his attorney did not appeal on his behalf, which he now argues amounted to ineffective assistance of counsel. The statute of limitations would instead run from the date Smith knew, or should have known through due diligence, that his attorney did not file a notice of appeal. According to the record, Smith filed a grievance against his attorney some time in 2009 alleging, inter alia, that his counsel failed to file a notice of appeal on his behalf. On November 19, 2009, Smith's attorney sent a letter to the state grievances committee responding to Smith's allegations, in which he explained that he did not file a notice of appeal because he was not aware that Smith had wanted to appeal, noting that Smith had pled guilty. That letter was copied to Smith. In response to Smith's answer to his letter, Smith's attorney sent a second letter again stating that he did not recall Smith indicating that he wanted to appeal since Smith pled guilty, that according to his recollection Smith had waived his right to appeal, and that counsel would have filed a notice on Smith's behalf if he had been aware that Smith wanted to appeal. Smith was again copied on that letter.
Smith was therefore aware that his attorney did not file a notice of appeal on his behalf on or before November 19, 2009, and pursuant to 28 U.S.C. § 2244(d)(1)(D), would have had until November 19, 2010, to file his Petition with this Court. Had Smith acted diligently after discovering his attorney did not file a notice of appeal, he would still have been able to file a timely motion in state court for leave to file a late notice of appeal. CPL § 460.30(1). For the purposes of discussing equitable tolling, infra, this Court assumes that the statute of limitations began running on November 19, 2009, and that Smith therefore had until November 19, 2010, to file his Petition with this Court.
C. 28 U.S.C. § 2254(d)(2): Statutory tolling
Even assuming that a motion to extend the time to file an appeal could statutorily toll the limitations period, see Bethea, 293 F.3d at 579, Smith did not move pro se to file a late notice of appeal until April 7, 2011. Smith also did not file his pro se motion to vacate the judgment until February 9, 2012. Because both motions were filed after the expiration of the November 19, 2010, deadline, neither statutorily tolls the one-year filing deadline. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (statutory tolling "excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run"); see De Los Santos v. Ercole, No. 07-cv-7569, 2013 WL 1189474, at *2 (S.D.N.Y. Mar. 22, 2013) (motion to vacate the judgment neither restarts nor tolls statute of limitations where it was filed after the one-year statute of limitations expired); Bowman v. Walsh, No. 07-cv-3586, 2007 WL 2815711, at *1 (E.D.N.Y. Sept. 25, 2007) (statutory tolling applies only if a petitioner's post-conviction motion was pending within the one-year limitations period). Thus, Smith is not entitled to statutory tolling, and his Petition can only survive if equitable tolling applies.
D. Equitable tolling
In Holland v. Florida, the Supreme Court held that 28 U.S.C. § 2254(d) is subject to equitable tolling "in appropriate cases." 560 U.S. 631, 645 (2010). A petitioner is entitled to equitable tolling only if he shows: 1) "that he has been pursuing his rights diligently, " and 2) "that some extraordinary circumstance stood in his way" and prevented timely filing. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008). The determination is made on a case-by-case basis. Holland, 560 U.S. at 649-50. "The term extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (citations omitted). A period of 886 days passed between November 19, 2010, the date on which Smith knew that counsel failed to file a notice of appeal on his behalf, and April 14, 2013, the date on which he filed his Petition with this Court. Smith's allegations must support the conclusion that he was entitled to equitable tolling ...