Muwwakkil v. Hoke, 96-2394

• Citation: 107 F.3d 3
• Decision Date: 21 February 1997
• Docket Number: No. 96-2394,96-2394
• Parties: NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. Mikail MUWWAKKIL, a/k/a Michael Negron, Appellant, v. Robert HOKE, Superintendent of the Eastern Correctional Facility, in his individual capacity; Donald Weinberger, Administrator of the Second Judicial Department's Assigned Counsel Plan ("18-B Panel"), in his individual capacity; Malvina Nathanson and George Spinakos, former Administrators of the 18-B Panel, in their individual capacities; Martin H. Brownstein, Clerk of the Second Department, in his individual capacity; Irving Selkin, former Clerk of the Department, in his individual capacity; Arnold Edman and Mel Harris, Deputy Clerks of the Second Department, in their individual capacities; and Martin G. Brownstein, Samuel D. Reidel and Sidney Ackerman, the former Deputy Clerks of the Second Department, in their individual capacities, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 3

107 F.3d 3

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

Mikail MUWWAKKIL, a/k/a Michael Negron, Appellant, v. Robert HOKE, Superintendent of the Eastern Correctional Facility, in his individual capacity; Donald Weinberger Administrator of the Second Judicial Department's Assigned Counsel Plan ("18-B Panel"), in his individual capacity Malvina Nathanson and George Spinakos, former Administrators of the 18-B Panel, in their individual capacities; Martin H. Brownstein, Clerk of the Second Department, in his individual capacity; Irving Selkin, former Clerk of the Department, in his individual capacity; Arnold Edman and Mel Harris, Deputy Clerks of the Second Department, in their individual capacities; and Martin G. Brownstein, Samuel D Reidel and Sidney Ackerman, the former Deputy Clerks of the Second Department, in their individual capacities Defendants-Appellees.

No. 96-2394.

United States Court of Appeals, Second Circuit.

Feb. 21, 1997.

APPEARING FOR APPELLANT: ROBERT ROSENTHAL, New York, NY.

APPEARING FOR DEFENDANTS-APPELLEES: CAROLYN CAIRNS OLSON, Assistant Attorney General, THOMAS D. HUGHES, Assistant Solicitor General, (Dennis C. Vacco, Attorney General), New York, NY.

Before JACOBS, CALABRESI and LAY, ^* Circuit Judges.

This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.

In October 1977, Mikail Muwwakkil was convicted in New York state court of second degree murder, and was sentenced to 25 years to life imprisonment. This case is a chapter in Muwwakkil's various attempts to obtain relief for a thirteen-year delay in his state court appeal. Specifically, Muwwakkil has filed a § 1983 action in the Eastern District of New York, styled as an amendment to an earlier petition for habeas corpus. The district court (Korman, J.) dismissed the complaint as time-barred, and Muwwakkil appeals.

I. Background

After Muwwakkil's sentencing on October 25, 1977, he filed a notice of appeal and was assigned counsel to represent him on his appeal in state court. Muwwakkil's assigned counsel evidently failed to pursue the appeal, and it was dismissed by the Appellate Division, Second Department on June 29, 1985. This event did not come to Muwwakkil's attention until March of 1990, when he wrote to and received back a letter from the Second Department dated March 13, 1990, which then informed Muwwakkil of the dismissal.

In June 1990, Muwwakkil filed a pro se habeas petition in federal court. The district court for the Eastern District of New York (Korman, J.), denied the petition on the condition that the Appellate Division reinstate and decide the appeal within nine months. See Muwwakkil v. Hoke, 968 F.2d 284, 285 (2d Cir.1992). The appeal was reinstated, new counsel was assigned, and Muwwakkil's murder conviction was affirmed on May 13, 1991. Further leave to appeal was denied by the New York Court of Appeals.

On July 31, 1991, Muwwakkil moved to amend his earlier petition of habeas corpus in the district court. The motion was denied, but a certificate of probable cause was issued. On appeal before this Court, we found that the thirteen-year delay had indeed violated Muwwakkil's constitutional rights. However, because Muwwakkil had made no showing of prejudice to his appeal, the habeas petition was denied. Muwwakkil, 968 F.2d at 285. We then remanded for Muwwakkil "to pursue other remedies which may be available to him." Id. at 286.

Following the denial of Muwwakkil's petition for certiorari on December 17, 1992, and the denial of New York State Executive Clemency on September 13, 1993, Muwwakkil wrote a pro se letter to the district court. This letter, dated May 9, 1994, states (in its entirety):

Dear Judge Korman:

Be advised that I am writing in reference to the above captioned matter [referring to the habeas petition].

The Second Circuit in denying habeas relief stated "although habeas relief is not available Muwwakkil has been deprived of his rights. We therefore remand the case to the district court in order to allow Muwwakkil to pursue other remedies which may be available to him." Muwwakkil v. Hoke, 986 F.2d 284, 286 (2d Cir.1992). As of this date nothing has happened with my case concerning the remand from the Second Circuit. The remedy that is available to me is to be given the opportunity to amend my petition to be recast as a complaint for damages. See Wallace v. Leonardo, 827 F.Supp. 150 (W.D.N.Y.1993).

WHEREFORE, petitioner request [sic] an order in accord with the Second Circuit to recast his petition for damages and assignment of counsel.

Respectfully yours, Mika'il Muwwakkil

The district court responded five days later with an order: "The petitioner is granted leave to file whatever cause of action he may see fit to file." The district court did not address Muwwakkil's request for counsel.

Thereafter, Muwwakkil began to send out letters to find a lawyer. Ultimately, he obtained his present counsel, who then contacted the district court to ascertain how to proceed, and was informed that he may file an amended complaint without a motion seeking leave to amend.

Muwwakkil filed the complaint at issue in this appeal on March 1, 1995. The complaint, styled as a § 1983 claim, alleges causes of action against 1) the prison superintendent; 2) various administrators of the 18-B Panel that assigned the delinquent counsel to Muwwakkil for his first, neglected, appeal; and 3) past and present clerks and deputy clerks of the Second Department. Muwwakkil sued all defendants for damages in their individual capacities, except for the superintendent, who was sued in his individual capacity for injunctive relief. Superintendent Hoke is the only defendant who was also named in the habeas petitions.

Both Muwwakkil and the defendants moved for summary judgment. On April 23, 1996, the district court dismissed Muwwakkil's complaint as time-barred. Judge Korman found that 1) the latest possible accrual date for Muwwakkil's cause of action was the date his conviction was affirmed, i.e., May 13, 1991; 2) the action did not relate back to the July 1991 motion to amend the habeas petition, because the requirements of Fed.R.Civ.P. 15(c) were not met. We agree with Judge Korman's rulings and reasoning.

II. Discussion

On appeal, Muwwakkil argues that: 1) his § 1983 complaint was timely, and 2) appellees lack judicial, quasi-judicial, or qualified immunity. Because we conclude that Muwwakkil's § 1983 complaint is untimely, we need not address the question of immunity.

In an action under § 1983, "the length of the limitation period is governed by state law." Okure v. Owens, 816 F.2d 45, 47 (2d Cir.1987), aff'd, 488 U.S. 235 (1989). Under New York law, the relevant limitation period is three years. See Leon v. Murphy, 988 F.2d 303, 309 (2d Cir.1993).

There is some question as to when Muwwakkil's cause of action accrued. The district court found that May 13, 1991--the date Muwwakkil's conviction was affirmed--was the latest possible date the cause of action could have accrued, and Muwwakkil does not contend otherwise. Appellees contend that the cause of action could have accrued no later than March 13, 1990, the date Muwwakkil discovered that his initial appeal had been dismissed for failure to prosecute.

We proceed arguendo on the basis most favorable to Muwwakkil--that his cause of action accrued on May 13, 1991--and go on to consider whether Muwwakkil's filing of his § 1983 complaint was timely. Muwwakkil filed his § 1983 complaint on March 1, 1995, more than three years after the accrual date, but he argues that his pro se letter to the district court dated May 9, 1994 constitutes a pleading sufficient to toll the statute of limitations.

Under ...