Acosta v. Artuz

Decision Date01 August 1999
Docket NumberDocket Nos. 97-2559
Parties(2nd Cir. 2000) VICTOR ACOSTA; MIGUEL RIVERA; DENNIS ACEVEDO; DANA MOZELL, Petitioners-Appellants, v. C. ARTUZ, Superintendent, Green Haven Correctional Facility; CHARLES BRUNELLE; WALTER R. KELLY, Superintendent; GEORGE WEZNER, Respondents-Appellees. (L), 98-2047(Con), 99-2515(Con)
CourtU.S. Court of Appeals — Second Circuit

Appeals from the judgments of the United States District Court for the Eastern District of New York (David G. Trager, Judge) entered December 18, 1997, and the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge) entered July 27, 1999, sua sponte dismissing the petitions for a writ of habeas corpus of Dennis Acevedo and Dana Mozell, respectively.

Vacated and remanded.

Marjorie M. Smith, Englander & Smith, Tappan, New York, for Appellants Dennis Acevedo and Dana Mozell.

Florence Sullivan, Assistant District Attorney, Brooklyn, New York (Charles J. Hynes, District Attorney Kings County, Leonard Joblove, Amy Appelbaum, Assistant District Attorneys, Brooklyn, New York, of counsel) for Appellee Walter R. Kelley.

James A. Killen, Supervisory Assistant State's Attorney, Rocky Hill, Connecticut, for Appellee George Wezner.

Before: FEINBERG, PARKER, and STRAUB, Circuit Judges.

PARKER, Circuit Judge:

Dennis Acevedo (98-2047) and Dana Mozell (99-2515) appeal from the judgments of the United States District Court for the Eastern District of New York (David G. Trager, Judge) entered December 18, 1997, and the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge) entered July 27, 1999, dismissing their respective petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") as untimely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). In each case, the district court sua sponte dismissed the petition without providing the petitioner notice and an opportunity to be heard. This Court granted a certificate of appealability, consolidated these and two other appeals,1 appointed counsel, and directed that counsel address whether petitioners were entitled to notice and an opportunity to be heard prior to the sua sponte dismissal of their petitions as untimely.

For the reasons stated below, we hold that while a district court has the authority to raise the apparent untimeliness of a habeas petition on its own motion, the courts below erred in dismissing the petitions as untimely without providing petitioners prior notice and an opportunity to be heard. We therefore vacate and remand for further proceedings consistent with this opinion.

I. BACKGROUND

AEDPA provides a one-year period of limitation for filing habeas petitions pursuant to Section 2254. See 28 U.S.C. § 2244(d)(1). Depending on the circumstances surrounding the claims, the limitation period runs from one of several dates:

The limitation period shall 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.

28 U.S.C. § 2244(d)(1)(A)-(D). The limitation period is tolled during the time that a properly filed application for state post-conviction review is pending, see id. at § 2244(d)(2), and may be equitably tolled where appropriate, see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam).

In this case, each of the petitioners filed pro se a petition for a writ of habeas corpus on Form AO 241 (Rev. 5/85) (the "AO Form"). As required by Rule 2(c) the Rules Governing Section 2254 Cases in the United States District Courts (the "2254 Habeas Rules"), the AO Form is substantially the same as the form annexed to the 2254 Habeas Rules (the "2254 Habeas Rules Form"). See 2254 Habeas Rule 2(c) (petition must be in "substantially the form annexed to the rules"). The 2254 Habeas Rules Form was last amended on April 28, 1982. The AO Form was last revised in May 1985. AEDPA was enacted in 1996. Not surprisingly then, neither the 2254 Habeas Rules Form nor the AO Form contains any questions specifically designed to elicit information relevant to the timeliness of the petition under AEDPA.

Acevedo filed his petition for a writ of habeas corpus on December 9, 1997. The petition contained the following relevant information. Acevedo was convicted after a jury trial of first degree robbery and possession of a hypodermic instrument. On July 21, 1991, the Appellate Division, Second Department, affirmed Acevedo's conviction. On May 19, 1995, the New York Court of Appeals denied his application for leave to appeal. He did not file a petition for a writ of certiorari to the Supreme Court of the United States. As of the date of filing this petition, he had not filed any other post-conviction petitions in federal or state court.

Based on the information provided by Acevedo in his petition, his conviction became final on August 17, 1995 "when his time to seek direct review in the United States Supreme Court by writ of certiorari expired." Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998); see Smith, 208 F.3d at 15 n.1 (citing Ross as holding that a conviction becomes final for purposes of AEDPA's limitation and grace period upon the expiration of the time to seek direct review in the United States Supreme Court by writ of certiorari). Because Acevedo's conviction became final before the enactment of AEDPA, the one-year period of limitation under 28 U.S.C. § 2244(d)(1)(A) began to run on April 24, 1996, the date of enactment. See Ross, 150 F.3d at 98. Thus, his December 9, 1997 petition was clearly untimely under Section 2244(d) (1)(A).

Although Acevedo's petition was clearly untimely under Section 2244(d)(1)(A), his petition provided insufficient information to determine whether any of the special circumstances of 28 U.S.C. § 2244(d)(1)(B), (C), or (D), or equitable tolling, applied. Nevertheless, on December 15, 1997, without providing Acevedo notice and opportunity to be heard, the district court sua sponte dismissed the petition on the ground that it was untimely on its face:

Petitioner has alleged no impediment by the state to filing his application. Petitioner has not alleged violation of a newly-recognized constitutional right. Petitioner does not allege that the factual predicates of his claims are newly discovered and could not have been earlier discovered through the exercise of due diligence. Therefore, the limitation period runs from the date on which petitioner's judgment of conviction became final by the conclusion of direct review. Even if the limitation period were to begin from the effective date of AEDPA, April 24, 1996, the petition is still untimely.

Acevedo timely appealed and now argues that he was entitled to notice and an opportunity to be heard prior to dismissal of his petition.

Mozell filed his petition for a writ of habeas corpus on December 1, 1998. His petition contained the following relevant information. Mozell was convicted after a jury trial of second degree manslaughter and conspiracy to commit murder. On January 2, 1996, the Connecticut Appellate Court affirmed the conviction. On February 21, 1996, the Connecticut Supreme Court denied Mozell leave to appeal. Mozell did not apply for a writ of certiorari to the United States Supreme Court. As of the date of filing his petition, he had not filed any other post-conviction petitions in federal or state court.

Based on the information provided by Mozell in his petition, his conviction became final on May 21, 1996 when his time to seek direct review in the United States Supreme Court by writ of certiorari expired. See Ross, 150 F.3d at 98. His time to file pursuant to Section 2244(d)(1)(A) expired on May 21, 1997, and his December 1, 1998 petition was therefore untimely under that subsection.

Although Mozell's petition was clearly untimely under Section 2244(d)(1)(A), his petition provided insufficient information to determine whether any of the special circumstances of 28 U.S.C. § 2244(d)(1)(B), (C), or (D), or equitable tolling, applied. Nevertheless, on July 29, 1999, without providing Mozell notice and opportunity to be heard, the district court sua sponte dismissed the petition on the ground that it was untimely on its face:

The petitioner's conviction became final in state court on February 21, 1996, when the Connecticut Supreme Court denied the petitioner certification to appeal the decision of the Connecticut Appellate Court. The petitioner states that he has not filed any collateral attacks on his conviction in state court. The petitioner did not file the present petition . . . until December 1, 1998, almost three years after his conviction became final in state court. Consequently the petition is untimely.2

Mozell timely appealed and now argues that he was entitled to notice and an opportunity to be heard prior to dismissal of his petition.

II. DISCUSSION

This case presents two issues of first impression in this Circuit: (1) the authority of the court to raise on its own motion a habeas petitioner's apparent failure to comply with the AEDPA statute of limitation for Section 2254 petitions; and (2) the propriety of dismissing a habeas petition on such ground without providing the petitioner prior notice and an opportunity...

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