Ross v. Artuz

• Citation: 150 F.3d 97
• Decision Date: 24 June 1998
• Docket Number: No. 97-2789,97-2789
• Parties: Anthony ROSS, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 97

150 F.3d 97 Anthony ROSS, Petitioner-Appellant,
v.
Christopher ARTUZ, Superintendent, Green Haven Correctional
Facility, Respondent-Appellee. No. 97-2789. United States Court of Appeals,
Second Circuit. Argued May 18, 1998.
Decided June 24, 1998.

Page 98

David A. Lewis, New York City (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, on the brief), for Petitioner-Appellant.

Amy Appelbaum, Assistant District Attorney, Brooklyn, NY (Charles J. Hynes, District Attorney for Kings County, Roseann B. MacKechnie, Melissa S. Horlick, Assistant District Attorneys, Brooklyn, NY, on the brief), for Respondent-Appellee.

Before: KEARSE and MINER, Circuit Judges, and POLLACK, District Judge ^*.

KEARSE, Circuit Judge:

Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or the "Act"), Pub.L. No. 104-132, 110 Stat. 1214, introduced for the first time a statute of limitations with respect to the filing of petitions for writs of habeas corpus and motions to vacate federal sentences. The AEDPA limitations period is, with certain variations, one year from the date on which the petitioner's conviction became final. The question we address today, in this and several similar cases, see, e.g., Joseph v. McGinnis, 150 F.3d 103 (2d Cir.1998) (per curiam); Mickens v. United States, 148 F.3d 145 (2d Cir.1998), is whether prisoners whose convictions became final prior to the effective date of the Act's statute-of-limitations provision should have been allowed a period of one year after that effective date in which to file petitions pursuant to 28 U.S.C.A. § 2254 (West 1994 & Supp.1998) or motions pursuant to id. § 2255. We answer this question in the affirmative.

In the present case, petitioner Anthony Ross, a New York State ("State") prisoner, appeals from a judgment of the United States District Court for the Eastern District of New York, Raymond J. Dearie, Judge, dismissing his § 2254 petition for habeas corpus as time-barred under AEDPA § 101, Pub.L. No. 104-132, § 101, 110 Stat. 1214, 1217 (to be codified at 28 U.S.C. § 2244(d)). Ross was convicted of narcotics and weapons offenses in state court in 1989. His conviction was affirmed by the Appellate Division in 1994, and leave to appeal to the New York Court of Appeals was denied on January 18, 1995. Ross's conviction became final for these purposes when his time to seek direct review in the United States Supreme Court by writ of certiorari expired on April 18, 1995. Alleging a constitutional defect in his trial, Ross filed the present habeas petition (his first) in March 1997.

The State moved to dismiss on the ground that the petition, having been filed more than one year after Ross's conviction became final, was barred by AEDPA's one-year limitations period. In a Memorandum and Order dated October 1, 1997, the district court, relying on language in this Court's decision in Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997), granted the State's motion to dismiss, stating as follows:

The Second Circuit has held that a state prisoner whose judgment of conviction became final before the enactment of the AEDPA [on April 24, 1996] and who "has had several years to contemplate bringing a federal habeas corpus petition," is allowed a "reasonable time" after April 24,

Page 99

1996 to file a habeas petition, but not a full year after that date. Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997).

Memorandum and Order at 2. The district court noted that Ross filed his petition approximately two years after his conviction became final and nearly 11 months after the effective date of the Act. The court stated that Ross "offer[ed] no explanation for this delay," id., and it found that the delay "was not 'reasonable' under the circumstances," id. at 3.

The district court granted Ross a certificate of appealability, and this appeal followed.

DISCUSSION

Under § 2254, "a person in custody pursuant to the judgment of a State court" may petition a federal court for a writ of habeas corpus "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (1994). Prior to the enactment of AEDPA, there was no formal limit on the time for filing such a petition. Delayed filing was a basis for dismissal only if the ground for the petition could have been known to the petitioner earlier and the state could show that the delay "prejudiced [it] in its ability to respond to the petition." Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rule 9(a)").

AEDPA wrought a significant change. Pursuant to AEDPA, an "application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court" is subject to a "1-year period of limitation." 28 U.S.C.A § 2244(d)(1) (West Supp.1998). The limitations period begins to run from the latest of

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id.; see also id. § 2244(d)(2) (limitations period is tolled during pendency of "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim").

In Reyes v. Keane, 90 F.3d 676 (2d Cir.1996), we considered whether AEDPA's new limitations provisions were intended to be applied retroactively to § 2254 petitions that had been filed before the effective date of the Act. We concluded that the limitations period does not apply to such petitions because there was "no indication that Congress wished to cut off access to federal courts by state prisoners who lacked notice of the new limitations period." Id. at 679; see Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997) (AEDPA's amendments to Title 28, chapter 153, which includes the new limitations periods for the filing of § 2254 petitions and § 2255 motions, "generally apply only to cases filed after the Act became effective"). Thereafter, in Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997), we considered whether a petition filed 72 days after the effective date of the Act, but some 18 years after the conviction had become final, was timely. We held that that petition was not time-barred by AEDPA. In the present case, along with several others decided today, see Joseph v. McGinnis, 150 F.3d 103 (2d Cir.1998) (per curiam); Rosa v. Senkowski, 148 F.3d 134 (2d Cir.1998) (per curiam); De Chirico v. Walker, No. 97-2529 (2d Cir. June 24, 1998) (summary order); Norde v. Keane, No. 97-2509 (2d Cir. June 24, 1998) (summary order); Reynoso v. Artuz, No. 97-2804 (2d Cir. June 24, 1998) (summary order); Stroud v. Stinson, No. 97-2733 (2d Cir. June 24, 1998) (summary order); Williams v.

Page 100

Senkowski, No. 97-2551 (2d Cir. June 24, 1998) (summary order), we consider whether state prisoners' habeas petitions filed nearly one year after the effective date of the Act may be ruled time-barred under AEDPA, along with the parallel question of whether a federal prisoner's § 2255 motion filed on April 23, 1997, may be ruled time-barred under AEDPA, see Mickens v. United States, 148 F.3d 145 (2d Cir.1998).

Because the Constitution prohibits governments from depriving any person of life, liberty, or property, without due process of law, "all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right...