199 F.3d 116 (2nd Cir. 1999), 98-2452, Bennett v Artuz

Docket Nº:Docket No. 98-2452
Citation:199 F.3d 116
Party Name:TONY BRUCE BENNETT, Petitioner-Appellant, v. CHRISTOPHER ARTUZ, Superintendent, Respondent-Appellee.
Case Date:October 25, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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199 F.3d 116 (2nd Cir. 1999)

TONY BRUCE BENNETT, Petitioner-Appellant,


CHRISTOPHER ARTUZ, Superintendent, Respondent-Appellee.

Docket No. 98-2452

United States Court of Appeals, Second Circuit

October 25, 1999

Argued: Sep. 24, 1999

Final brief submitted Sep. 29, 1999

Appeal from a sua sponte order by the United States District Court for the Eastern District of New York (Nina Gershon, Judge) dismissing a petition for habeas corpus relief as untimely. We reverse and remand.

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Ellen B. Resnick, Law Offices of Alan S. Futerfas, New York, New York, for Petitioner-Appellant.

KATHLEEN O'LEARY, Assistant District Attorney, Queens County (Richard A. Brown, District Attorney, Queens County, John M. Castellano, Assistant District Attorney, Queens County, of counsel), Kew Gardens, New York, for Respondent-Appellee.

Before: WINTER, Chief Judge, KEARSE, and McLAUGHLIN, Circuit Judges.

WINTER, Chief Judge:

Tony Bruce Bennett appeals from Judge Gershon's sua sponte dismissal of his habeas corpus petition pursuant to 28 U.S.C. § 2254 as untimely. The district court concluded that the petition was time-barred based on the fact that the petition was filed more than twenty-one months after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and on our decision in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), holding that prisoners whose convictions became final prior to AEDPA's enactment have only a "reasonable time" after the enactment to bring federal habeas petitions. For the reasons set forth below, we reverse and remand.

Following a 1984 jury trial in New York Supreme Court, Queens County, appellant was convicted of two counts of attempted murder in the first degree, criminal possession of a weapon in the second degree, two counts of reckless endangerment in the first degree, criminal possession of stolen property in the first degree, and unauthorized use of a motor vehicle. The evidence introduced at trial established, among other things, that appellant fired two bullets at a police car during a car chase. The Appellate Division, Second Department, affirmed the conviction in a decision dated March 2, 1987. See People v. Bennett, 512 N.Y.S.2d 472 (App. Div. 1987). Leave to appeal the decision to New York's Court of Appeals was thereafter denied. See People v. Bennett, 511 N.E.2d 93 (N.Y. 1987) (table).

In May 1991, appellant moved to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10 on

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the grounds of newly discovered evidence and ineffective assistance of counsel. The motion was denied in an August 1991 order. In June 1995, appellant moved pro se to vacate the judgment of conviction pursuant to CPL § 440.10 (the "1995 Motion"). The 1995 Motion asserted that the trial court denied appellant the right: to be present at the Sandoval hearing and at other critical stages of trial, and to offer certain testimony at trial. Appellee maintains that the 1995 Motion was denied "by the state court in an oral decision on November 30, 1995," in a ruling "without any conclusions of law or fact." Appellant represents that he never received a copy of an order denying the 1995 Motion despite having written numerous letters to the state court requesting information on the disposition of the motion and requesting a written copy of the disposition. For purposes of this appeal, we view the record in the light most favorable to appellant and accept his representation that service of a written order never occurred. On remand, of course, this will be a factual issue to be resolved.

On February 11, 1998, appellant filed the instant petition. He alleged in the petition violations of his constitutional rights: (i) to present witnesses in his defense and to a fair trial; (ii) to be present at all material stages of the trial; and (iii) to the effective assistance of counsel. The district court dismissed the petition sua sponte as time-barred but granted appellant's motion for a certificate of appealability ("COA"). When the district court dismissed the petition, however, appellant's representations concerning the 1995 Motion were not before it. These came to light only when appellant moved the district court for a COA.

In determining whether the petition was properly dismissed, we address three issues: (i) whether AEDPA's pending-state-petition tolling provision, 28 U.S.C. § 2244(d)(2), applies because appellant's conviction became final prior to AEDPA's enactment; (ii) if that tolling provision applies, whether the 1995 Motion was "pending" within the meaning of that provision; and (iii) if that tolling provision applies, whether appellant's 1995 Motion was "properly filed" within the meaning of that provision.

a) Applicable Limitations Period and AEDPA's Tolling Provision

Prior to the enactment of AEDPA, there was no formal limit on the time for filing a habeas corpus petition pursuant to 28 U.S.C. § 2254. Delayed filing of a petition was a basis for dismissal only if the appellant knew or could have known the grounds for the petition earlier and if the state demonstrated "that the delay prejudiced [it] in its ability to respond to the petition." Ross v. Artuz, 150 F.3d 97, 99 (2d Cir. 1998) (alteration in original) (internal quotations and citation omitted). AEDPA changed this by imposing a one-year limitations period on habeas petitions that begins to run from the latest of several events, including the date on which the challenged state judgment becomes final. See generally 28 U.S.C. § 2244(d)(1).

AEDPA's one-year limitations period does not strictly apply to the instant petition because appellant's conviction became final prior to AEDPA's enactment. See Reyes v. Keane, 90 F.3d 676, 678-79 (2d Cir. 1996) (holding that AEDPA's one-year limitations period does not apply retroactively), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 336-37 (1997) (holding that AEDPA provisions for noncapital cases "generally apply only to cases filed after [AEDPA] became effective"). However, we have held that prisoners whose habeas claims accrued prior to AEDPA's enactment are afforded the "reasonable time" of "one year after the effective date of AEDPA" to file a federal habeas petition. Ross, 150 F.3d at 102-03. That one-year grace period expired April 24, 1997, over nine months before the instant petition was filed.

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However, AEDPA provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation." 28 U.S.C. § 2244(d)(2). By not counting the time during which a petition is pending in state court, the tolling provision preserves the "long-standing federal policy" of requiring habeas appellants to exhaust state court remedies prior to initiating suit in federal court. Mills v. Norris, 187 F.3d 81, 83-84 (8th Cir. 1999) (noting that "[t]he tolling period in § 2244(d)(2) complements [the exhaustion requirement under 28 U.S.C. § 2254(c)] by extending the time for filing federal petitions while state remedies are being exhausted"); see also O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1732 (1999) (noting that exhaustion doctrine is based upon the understanding that "state courts should have the first opportunity to review [an unlawful confinement] claim and provide any necessary relief").

We have not yet considered whether the pending-state-petition tolling provision extends the one-year grace period established in Ross. Several other circuit courts have considered the issue, however, and have held that the tolling provision applies to petitions challenging pre-AEDPA convictions. See Gaskins v. Duval, 183 F.3d 8, 10 (1st Cir. 1999); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998) (per curiam); Gendron v. United States, 154 F.3d 672, 675 (7th Cir. 1998) (per curiam) (resolving consolidated cases), cert. denied 119 S.Ct. 1758 (1999); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998); Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir. 1998); see also Mills, 187 F.3d at 882-84 (applying § 2244(d) tolling provision to habeas petition challenging pre-AEDPA conviction without discussing propriety of doing so); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999) (same). We agree with these circuits and hold that AEDPA's pending-state-petition tolling provision does apply to a petition challenging a pre-AEDPA conviction. To hold otherwise would effectively discourage appellants from starting and completing the state-court review process.

b) "Pending" Motion Under 28 U.S.C. § 2244(d)(2)

We further conclude that the 1995 Motion was still "pending" before the New York courts in February 1998, for purposes of 28 U.S.C. § 2244(d)(2), when appellant filed the instant petition. Accordingly, the limitations period in which appellant had to file his habeas petition was tolled. 1.

AEDPA's tolling provision complements the 28 U.S.C. § 2254(c) exhaustion requirement by tolling the limitations period on federal habeas petitions while an appellant pursues state-court remedies. See Mills, 187 F.3d 883-84. When Congress enacted AEDPA, one of its policy goals was to "provide[] for the exhaustion of state remedies and require[] deference to the determinations of state courts." H.R. Conf. Rep. No. 104-518, at 111 (1996), reprinted in 1996...

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