United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
Order dated May 24, 2017, familiarity with which is assumed,
I ordered petitioner to show cause why his habeas corpus
petition under 28 U.S.C. § 2254 should not be denied as
untimely. Petitioner had commenced this proceeding
approximately three weeks after the expiration of the
one-year time limit required under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
Petitioner acknowledged his petition's untimeliness, but
asked to be relieved from the one-year filing requirement
because of several reasons, including insufficient knowledge
of state law procedures (which petitioner incorrectly thought
tolled his time to file his habeas petition), lack of access
to a law library, transfer between facilities, and the return
of his first attempt to file the petition for insufficient
postage. The Order to Show Cause explained the doctrine of
equitable tolling to petitioner and suggested that the
reasons he offered were not sufficient to meet the
extraordinary circumstances requirement of the tolling
doctrine, discussing each of those reasons in some detail.
However, the Order to Show Cause offered petitioner the
opportunity to provide more detail to possibly qualify for
has responded to the Order to Show Cause, acknowledging that
he has no additional proof or arguments to offer and
restating the grounds for equitable tolling that he provided
in his petition. In essence, petitioner has requested that
the Court exercise its discretion based on sympathy because
of his unawareness of the law and the other reasons he
whether to grant or deny equitable tolling is a matter for
the Court's discretion, that discretion is not unbridled.
Petitioner still has to meet the standard of extraordinary
circumstances beyond his control to come within the zone in
which the Court's exercise of discretion would be
appropriate. For the reasons discussed in the Order to Show
Cause, he has not met that standard.
he has not explained why he needed to get to a law library
when, in fact, he had already filed a premature petition
months before the instant petition - and this one was hardly
any different, therefore not requiring any legal research. He
has also not explained why, although he had 75 days left on
his one-year AEDPA period from when his last properly filed
state court motion was denied, he waited until the eve of the
AEDPA period's expiration to file. Further, he has not
substantiated that, in fact, his first attempt to commence
this proceeding was returned to him for insufficient postage,
and even if he had, he has offered no reason why he did not
know how much postage was required, given that he had
previously mailed in a longer petition that had been accepted
by the U.S. Postal Service, such that it seems unlikely that
this shorter petition required more postage than had the
previous one. Finally, he has not responded to the numerous
cases I cited in the Order to Show Cause holding that, as a
general matter, a mistake of law does not constitute an
extraordinary circumstance sufficient to warrant equitable
only new argument that petitioner has offered is that, unlike
the cases cited in the Order to Show Cause, this is not a
“single factor” case and the Court should
consider the combined effect of all of his arguments.
However, this is not accurate; several of the cases cited
were multi-factor cases, see Muller v. Greiner, No.
03 Civ. 1844, 2004 WL 97687, *3 (S.D.N.Y. Jan. 20, 2004),
aff'd, 139 F. App'x 344 (2d Cir. 2005);
Coleman v. McKinney, 269 F.Supp.2d 44, 48 (E.D.N.Y.
2003), and there are many others that were not cited that
also considered multiple arguments in rejecting equitable
tolling. See Warren v. Kelly, 207 F.Supp.2d 6, 10
(E.D.N.Y. 2002); Martinez v. Kuhlmann, No. 99 CIV.
1094, 1999 WL 1565177, at *5 (S.D.N.Y. Dec. 3, 1999),
opinion adopted, No. 99 CIV. 1094 (MBM), 2000 WL
622626 (S.D.N.Y. May 15, 2000). The rule in equitable
tolling, generally speaking, is that the whole cannot be
greater than the sum of its parts.
request for sympathy also cannot be a factor in equitable
tolling because under our precedential system of justice, a
decision can have an effect beyond the particular petitioner
in a given case. Just as this Court has relied on prior
decisions in concluding that petitioner's arguments do
not qualify for equitable tolling, a contrary ruling based on
sympathy would form the basis for arguments by other
petitioners and the need for other courts to address that
basis for invoking equitable tolling. In that way, the
doctrine of equitable tolling could be incrementally eroded
without the benefit of sufficient input from higher courts.
If there is to be a relaxation of the standards for equitable
tolling on the ground of sympathy, it must emanate from the
Courts of Appeal or the Supreme Court, and the present
authoritative decisions from those courts do not support such
the petition is denied as untimely and the case is dismissed.
The Clerk is directed to enter judgment accordingly. As
petitioner has not made a substantial showing of the denial
of a constitutional right, a certificate of appealability
shall not issue. See 28 U.S.C. § 2253. The
Court certifies pursuant to 28 U.S.C. § 1915(a) that any
appeal from ...