391 F.3d 147 (2nd Cir. 2004), 03-2432, Doe v. Menefee

Docket Nº:03-2432.
Citation:391 F.3d 147
Party Name:John DOE, Plaintiff-Appellant, v. Frederick MENEFEE, Warden, Warden of the Otisville Federal Correctional Institution; the Attorney General of the State of New York, Defendants-Appellees.
Case Date:November 19, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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391 F.3d 147 (2nd Cir. 2004)

John DOE, Plaintiff-Appellant,


Frederick MENEFEE, Warden, Warden of the Otisville Federal Correctional Institution; the Attorney General of the State of New York, Defendants-Appellees.

No. 03-2432.

United States Court of Appeals, Second Circuit

November 19, 2004

Argued: Dec. 17, 2003

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[Copyrighted Material Omitted]

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Michael S. Pollok, Hoffmann & Pollok, LLP, New York, NY, for plaintiff-appellant.

John J. Sergi, Assistant District Attorney (Jeanine Pirro, District Attorney of Westchester County, on the brief; Joseph M. Latino, of counsel), White Plains, NY, for defendant-appellee the Attorney General of the State of New York.

Before: MESKILL, POOLER, and SOTOMAYOR, Circuit Judges.

Judge POOLER dissents in a separate opinion.

SOTOMAYOR, Circuit Judge.

Petitioner-appellant John Doe 1 appeals from the decision of the United States District Court for the Southern District of New York (Brieant, J.), denying his petition for a writ of habeas corpus. 2 Although Doe seeks to challenge his 1995 New York State conviction for second-degree sodomy, he failed to file his petition within the limitations period provided by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d) (1). Doe argues that the limitations period should be tolled because he is actually innocent of the offense to which he pled guilty, because the attorney whom he hired to file his state post-conviction motion incompetently failed to file the motion in time to trigger the tolling provision provided in 28 U.S.C. § 2244(d) (2), and because the unavailability of New York State case law in the library of the federal prison in which he was incarcerated rendered him unable to file his state post-conviction motion pro se. Although the district court found that Doe was actually innocent, it declined to hold that actual innocence provides a basis for tolling AEDPA's limitations period, and it also rejected Doe's other asserted bases for tolling.

On appeal, Doe argues that because he has presented a credible claim of actual innocence, the Suspension Clause, the Eighth Amendment, and due process mandate that AEDPA's limitations period be equitably tolled. With respect to the attorney competence issue, he asserts that our decision in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003), issued

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after the district court's ruling on the issue, necessitates reversing the court's finding that the incompetence of Doe's attorney did not warrant tolling. Finally, Doe argues that the district court erred in holding that his claim of prison library inadequacy could not serve as a basis for equitable tolling. Because any one of these grounds is sufficient to toll the limitations period, Doe maintains, he should be given the opportunity to have his constitutional claims adjudicated on their merits.

We hold that the district court relied on clearly erroneous findings of fact in determining that Doe had presented new reliable evidence of innocence and was actually innocent. With respect to Doe's attorney incompetence argument, we affirm the court's conclusion that Doe failed to exercise reasonable diligence, and thus do not reach Doe's contention that his attorney's incompetence is sufficiently egregious to warrant tolling under Baldayaque. We also affirm the court's holding that Doe is not entitled to tolling based on purported inadequacies of the prison library because Doe's post-conviction motion relied largely on federal law.


I. Doe's Second-Degree Sodomy Conviction

The following facts are taken from the affidavits and transcripts in the record, as well as from the testimony given at the evidentiary hearing conducted before the district court in March 2003, and are essentially undisputed. Any factual disputes that have arisen during the habeas proceedings will be treated in greater detail in the discussion of the hearing testimony, below.

John Doe's second-degree sodomy conviction was the result of a long-running investigation, conducted jointly by federal and state law enforcement agencies, into a ring of pedophiles based in New York, New Jersey and Maryland. The ring was composed of men who called themselves "Boy Lovers," a phrase that Doe defined as men who liked to have sex with young boys, and its activities consisted of exchanging and creating child pornography, "seducing" and sharing victims, and soliciting child prostitution. 3 Although the exact dates of Doe's affiliation with the group are unclear, it appears that he was friendly with its principals, and participated in its activities, beginning in the early 1980s and continuing at least through 1993. Doe's activities as a member of the group apparently never gave rise to a criminal investigation prior to 1993, although Doe did have one sex offense conviction in Maine, stemming from his 1975 attempt to pay two young boys to pose for pornographic pictures.

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During the summer of 1993, New York and New Jersey state and federal investigators were investigating the activities of two members of the group, Richard Bagarozy and Edward Federowicz, who were suspected of creating and warehousing child pornography and transporting boys from New York to New Jersey for sex. Investigators for the Westchester County District Attorney's Office in New York ("the DA's Office") conducted several wiretaps of Bagarozy and Federowicz, and became alerted to Doe's existence when, on August 17, 1993, they overheard Bagarozy and Federowicz discussing how Doe had recently had sex with a boy named Edwin 4 and had paid him afterwards. 5 In later wiretaps, Doe was overheard discussing Edwin with Federowicz in a sexually explicit manner. Based on this information, the DA's Office attempted to locate Edwin in order to determine whether a crime had been committed, but did not succeed in doing so until February 1994.

Meanwhile, the FBI also had begun to investigate Doe as a member of the Boy Lovers. On September 9, 1993, the FBI and investigators from the DA's Office and other state authorities searched Doe's Westchester County apartment as part of a coordinated series of searches and arrests intended to break up the ring. The investigators recovered items of child pornography from Doe's apartment, and the United States Attorney's office for the Southern District of New York initially considered prosecuting him on child pornography charges, although it is not clear how far these deliberations progressed. Six days after the search, on September 15, Doe and his attorney, Murray Richman, met with federal investigators for the purpose of determining whether Doe had sufficient knowledge of the Boy Lovers' ring to warrant offering him a plea bargain in return for his cooperation. 6 Doe spoke with the federal investigators pursuant to a proffer agreement that guaranteed that the United States would not use any of his statements against him in any judicial proceeding, except for purposes of cross-examination or rebuttal. 7 During the proffer

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session, Doe provided a detailed description of the Boy Lovers' "seduction" methods, the names of their victims, as well as an account of his personal involvement with Bagarozy and Federowicz and his own sexual acts with children. He volunteered that "in the last couple months," he had had sex with a boy named Edwin, who was also sexually associated with Bagarozy. This would place the encounter in July or August of 1993. According to Doe, "the sex included oral copulation and masturbation."

Doe participated in a second proffer session in October 1993, where he provided more information about Bagarozy's and Federowicz's activities, but apparently did not discuss his own activities with Edwin. 8 Although Doe himself was still under investigation for federal crimes at that time, at some point the federal government decided not to charge him. Nonetheless, Doe continued to work with Special Agent James Kyle of the FBI, providing information regarding the ongoing activities of the Boy Lovers and assisting the FBI in locating Bagarozy's stash of child pornography. In February 1995, Doe testified for the government in the federal trial of Bagarozy and Federowicz, where he provided extensive evidence of the Boy Lovers' activities and victims, as well as the defendants' individual proclivities and creation of child pornography.

Meanwhile, investigator Pat Storino of the DA's Office was investigating the connection between Doe and Edwin on the basis of the August wiretaps. Storino located Edwin on February 3, 1994, but did not attempt to question him about his contact with Doe. Also in early February, Doe told Special Agent Kyle that Edwin had attempted to contact Doe because O'Rourke had recently gotten out of prison and had coached Edwin and another underage victim, Edward R., on how to deceive the authorities. According to Doe, Edwin wanted Doe to know that he had promised not to say anything incriminating to any law enforcement authorities. Special Agent Kyle transmitted this information to the DA's Office on February 10.

In March 1994, the DA's Office interviewed Edwin on two separate occasions. Assistant District Attorney ("ADA") Elizabeth Cronin 9 of the Special Prosecutions Division, which handles domestic violence and child abuse cases, conducted the interviews. In accordance with the DA's Office's customary practice when dealing with underage victims, the interviews were not recorded and Edwin was not asked to sign a written statement, so Cronin's handwritten notes provide the only record of the substance of Edwin's statements. During the first interview, Cronin elicited general information about Edwin's relationship with Doe and Doe's practice of taking Edwin and his friends out for hotdogs at

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