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Tolling The Statute Of Limitations For Filing Writ Of Habeas Corpus

Collins v. Ercole 2012 WL232966

Decided January 26, 2012 Second Circuit Court of Appeals

Click here to see Text of Habeas Corpus Statute

Click here to see Habeas Corpus Statute of Limitations 

Click here to see Habeas Corpus Certificate of Appealability

Issue: Whether certain post conviction filings in the State courts will toll the time for statute of limitations for filing writ of Habeas Corpus.

Holding: The Article 78 proceeding did not toll the time on the statute of limitations to file a writ of habeas corpus because it did not rise any of the grounds asserted in the habeas petition and did not involve a form of review of the state judgment.

Facts: 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).

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.

Because of Petitioner’s previous robbery conviction, the attempted murder counted as a second violent felony under New York law.

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.

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, Petitioner filed a number of state post-conviction motions.  His first filing was an Article 78 Proceeding in New York State Supreme Court claiming that DOCS’s determination that the 1988 and 2001 sentences ran consecutively was contrary to law.  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.

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.

Legal Analysis: The legal question on appeal is straightforward. Under the Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner was required here to file his petition for habeas corpus within one year of the expiration of the time for seeking direct review of the state court judgment at issue. See 28 U.S.C. § 2244(d)(1)(A). As set out above, Petitioner filed his habeas petition three years after that period ended in March 2005. The one-year limitations period, however, is tolled during the pendency of certain post-conviction proceedings in state court. 28 U.S.C. § 2244(d)(2).

Of the five motions filed in state court by Petitioner between 2005 and 2008, Respondent agrees that the § 440.10 motion and the two § 440.20 motions tolled the limitations period. Petitioner contends that the Article 78 petition, and the motion to renew that petition, tolled the period as well. If Petitioner is correct, then it is undisputed that his habeas petition would be timely filed. The district court, however, concluded that the Article 78 filings did not satisfy the requirements of § 2244(d)(2), and held that the habeas petition was therefore time-barred.

Section 2244(d)(2)  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.

The Article 78 petition in this case was not made “with respect to the pertinent judgment.” Indeed, Petitioner did not challenge any aspect of his 2001 conviction or sentence. Rather, he argued that DOCS, the New York agency charged with administering the prison system, wrongly determined that his unchallenged 2001 sentence should run consecutively, rather than concurrently, to a previous unchallenged sentence imposed pursuant to a separate conviction for robbery.

Petitioner argues that the Supreme Court’s recent decision in Wall v. Kholi, ––– U.S. ––––, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011), suggests that his Article 78 petition was nevertheless made with respect to the pertinent judgment for tolling purposes. We disagree. Properly read, Wall in fact demonstrates that the Article 78 petition at issue here did not toll the AEDPA limitations period.

The Wall Court’s treatment of “review” in § 2244(d)(2), moreover, makes clear that the Article 78 petition here did not satisfy the requirements for tolling. In the Court’s words, “to trigger the tolling provision, a ‘collateral’ proceeding must … involve a form of ‘review.’ “ 131 S.Ct. at 1285. Several federal circuit courts had concluded, prior to Wall, that collateral review denotes a challenge to the lawfulness of a conviction or sentence. The Court, however, said that “review” constitutes an “act of inspecting or examining” or a “judicial reexamination.” Webster’s [Third New International Dictionary] 1944 [ (1993) ]; see also Black’s [Law Dictionary] at 1434 [ (9th ed.2009) ] (“[c]onsideration, inspection, or reexamination of a subject or thing”); 13 O[xford] E[nglish] D [ictionary] 831 [ (2d ed.1989) ] (“[t]o submit (a decree, act, etc.) to examination or revision”). We thus agree with the First Circuit that “ ‘review’ commonly denotes ‘a looking over or examination with a view to amendment or improvement.’ “[Kholi v. Wall, 582 F.3d 147, 153 (1st Cir.2009) ] (quoting Webster’s 1944 (2002)). Viewed as a whole, then, “collateral review” of a judgment or claim means a judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.

Interpreting § 2244(d)(2), by its plain language, to toll the limitations period only for those applications that seek review of part or all of the pertinent judgment tracks the statutory structure of the AEDPA statute of limitations. AEDPA was enacted in part “to further the principles of comity, finality, and federalism” by “limit[ing] the scope of federal intrusion into state criminal adjudications and … safeguard[ing] the States’ interest in the integrity of their criminal and collateral proceedings.

One important element in its scheme is the strict one-year statute of limitations for habeas claims, § 2244(d)(1). See Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The tolling provision, § 2244(d)(2), is equally important. It stops the limitations clock, but only when a petitioner waits to bring a habeas challenge in federal court because he or she is instead bringing that challenge in state collateral review proceedings.

Sections 2244(d)(1) and (2), by their terms, balance several significant, yet potentially conflicting state interests. These interests include respecting the finality of state court judgments while permitting the exhaustion of state remedies for (putatively) improper judgments, Duncan, 533 U.S. at 178–180; and “provid[ing] both litigants and States with an opportunity to resolve objections at the state level, potentially obviating the need for a litigant to resort to federal court.

Interpreting § 2244(d)(2) to reach applications for relief that do not bear directly on the pertinent judgment would impede finality while doing little to serve either a state’s interest in exhaustion of remedies or its interest in resolving objections to the judgment at the state level rather than in federal habeas proceedings.

Here, for example, none of the grounds asserted by Petitioner for habeas relief related to his Article 78 claim that DOCS improperly failed to run his robbery and murder sentences concurrently.

Congress drafted AEDPA’s tolling provision as a carefully delineated exception to a demanding statute of limitations. This exception tolls the limitations period only during the adjudication of properly filed applications for collateral review of the pertinent judgment at issue. Petitioner has provided no convincing reason why this exception applies to the Article 78 filings in this case. For the foregoing reasons, we AFFIRM the judgment of the district court.