Martinez v. Superintendent of E. Corr. Facility

• Decision Date: 10 November 2015
• Docket Number: No. 14–1513.,14–1513.
• Citation: 806 F.3d 27
• Parties: David MARTINEZ, Petitioner–Appellant, v. SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

806 F.3d 27

David MARTINEZ, Petitioner–Appellant,

v.SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, Respondent–Appellee.¹

No. 14–1513.

United States Court of Appeals, Second Circuit.

Argued: Aug. 26, 2015.

Decided: Nov. 10, 2015.

Corrected: Nov. 12, 2015.

Randolph Z. Volkell, Law Office of Randolph Z. Volkell, Merrick, N.Y., for Petitioner–Appellant.

Donald J. Berk, Assistant District Attorney, Nassau County (Madeline Singas, District Attorney, Nassau County, Tammy J. Smiley, Assistant District Attorney, on the brief), Mineola, N.Y., for Respondent–Appellee.

Opinion

JOHN M. WALKER, JR., Circuit Judge:

Petitioner-appellant David Martinez appeals from the decision of the United States District Court for the Eastern District of New York (Gershon, J.), denying his petition for a writ of habeas corpus. Although Martinez seeks to challenge his 2007 New York state conviction for charges including murder in the second degree, he failed to file his petition within the one-year limitations period provided by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1) (2015)(“AEDPA”). The district court held that Martinez was not entitled to equitable tolling of the statute of limitations because he had not acted with reasonable diligence during the period for which he sought tolling. We conclude that the court's analysis of Martinez's degree of diligence was premised upon a misapplication of our decision in Doe v. Menefee,391 F.3d 147 (2d Cir.2004). Accordingly, we VACATE the district court's order dismissing the petition and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

On July 20, 2007, David Martinez entered a guilty plea in New York state court to charges including attempted murder, robbery, and assault. On February 11, 2008, he was sentenced to twelve years' imprisonment, five years' post-release supervision, and restitution. He was then transferred to the custody of the New York State Department of Corrections and Community Supervision. Martinez immediately hired an attorney to seek post-conviction relief, but this attorney evidently showed a greater interest in collecting fee payments than in providing Martinez with adequate representation. The attorney missed the habeas petition deadline and was barely responsive to Martinez's case, as the following facts demonstrate.

On March 3, 2008, three weeks after his sentencing, Martinez and his mother hired attorney Anthony Denaro to handle his post-conviction relief. Denaro, Martinez, and Martinez's mother executed an agreement for legal services. They agreed upon a retainer payment of $5,000, and Martinez's mother paid $2,000 that day. Denaro accepted the money and then did virtually nothing for almost a year. Between March 2008 and January 2009, the only communication that Martinez received from Denaro was a November 28, 2008 billing statement.

Denaro claims his firm sent Martinez two letters in early 2009, more than ten months after Martinez hired him: a letter from Denaro on January 28, 2009, enclosing all court documents in his possession, and a letter from Denaro's colleague, Jack Evans, on February 12, 2009, requesting a detailed statement of the facts and circumstances in his case. Denaro also claims he received a letter on March 3, 2009 from Martinez, answering Evans' request. None of these letters are in the record, however, and Martinez claims Denaro sent him “nothing” until March 4, 2009.

On March 4, 2009, more than a year after Denaro's retention, Evans sent Martinez a letter requesting information to be used in the filing of a coram nobispetition. The letter referenced documents and information previously provided by Martinez. At no point in this letter did Evans mention that, because Martinez's judgment became final on March 12, 2008, the one-year deadline for filing a petition for habeas corpus would expire in just over a week. On March 6, 2009, Denaro's firm also sent Martinez a second billing statement.

From March to April of 2009, Martinez and Evans discussed the coram nobispetition. On March 16, 2009, Martinez responded to Evans. On April 2, 2009, Evans met with Martinez's mother. The following day, the firm sent Martinez a third billing statement. On April 6, 2009, Evans sent Martinez a letter describing the possible results of a coram nobispetition. On April 12, 2009, Denaro met with Martinez's mother and advised her that it would be very difficult to formulate a meritorious petition. On April 30, 2009, Evans wrote Martinez to tell him that he was leaving Denaro's firm. That letter referenced “the two most recent letters you sent to me regarding your case.”

After Evans left, Martinez corresponded with Denaro. On June 18, 2009, Martinez wrote to Denaro. On June 25, 2009, Denaro wrote back and assured Martinez that he was in the process of “determining whether appeal should be taken to the federal court.” Denaro emphasized his “forty-five years [of] legal experience” and claimed a record of “favorable results.” On October 16, 2009, Martinez wrote again to Denaro. On November 13, 2009, nearly five months after his last communication and more than eight months since the passing of the habeas deadline, Denaro responded to “provide [Martinez] with the status of [his] motion to withdraw [his] guilty plea and federal habeas corpus relief.” Denaro stated, “Please be assured that we are working very hard to make this happen for you.” On November 25, 2009, Martinez wrote again to Denaro. Denaro's next and last communication to Martinez, sent on January 15, 2010, was a fourth billing statement.

On August 3, 2010, Martinez filed pro sefor a writ of error coram nobis,challenging multiple aspects of his sentence. On December 8, 2010, the New York Supreme Court modified the restitution amount but denied all other claims. People v. Martinez,Ind. No. 889N–07, Motion No. C–680 (Sup.Ct. Nassau County, Dec. 8, 2010) (Ayres, J.). On May 10, 2011, the Appellate Division, Second Department (Lott, J.), denied Martinez leave to appeal the denial. On August 1, 2011, his application for leave to appeal to the New York Court of Appeals was denied.

On September 27, 2010, while waiting for a decision on his coram nobispetition, Martinez complained about Denaro's conduct to the Second Department Grievance Committee, Tenth Judicial District (“Grievance Committee”). On December 21, 2010 and August 9, 2011, he submitted additional letters to the Grievance Committee. He also reached out to The Lawyers' Fund for Client Protection but was informed on October 7, 2010 that the organization would be unable to help him. On November 18, 2011, the Grievance Committee determined that Denaro had breached the Rules of Professional Conduct and admonished him for his failure to timely pursue Martinez's case.

On August 30, 2011, Martinez filed pro sefor a writ of habeas corpus in the United States District Court for the Eastern District of New York. He sought a reduction of his sentence to ten years' imprisonment and either reduction or elimination of post-release supervision. His petition alleged, inter alia,ineffective assistance of counsel. The district court (Feuerstein, J.) issued an Order to Show Cause, directing Martinez to explain why his petition should not be dismissed as time-barred.

On April 15, 2014, after reviewing submissions from both parties, the district court dismissed the petition as time-barred. The district court concluded that the one-year habeas limitations period began when Martinez's judgment became final on March 12, 2008, and that his petition was therefore time-barred as of March 12, 2009. The district court found Martinez ineligible for equitable tolling because, although Denaro's effective abandonment of Martinez constituted an extraordinary circumstance preventing him from timely filing his petition, Martinez had not acted with the required reasonable diligence. On July 31, 2014, we granted a certificate of appealability on the question of whether Martinez was entitled to equitable tolling.

DISCUSSION

We review de novoa district court's denial of equitable tolling when premised on a finding that “governing legal standards would not permit equitable tolling in the circumstances.” Belot v. Burge,490 F.3d 201, 206 (2d Cir.2007); see Dillon v. Conway,642 F.3d 358, (2d Cir.2011)(per curiam).

The district court dismissed Martinez's petition as untimely under AEDPA. That act places a one-year limitation on a prisoner's right to seek federal review of a state criminal conviction pursuant to 28 U.S.C. § 2254. Smith v. McGinnis,208 F.3d 13, 15 (2d Cir.2000)(per curiam). The statute of limitations “runs from the latest of a number of triggering events, including the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Rivas v. Fischer,687 F.3d 514, 533 (2d Cir.2012)(internal quotation marks omitted). AEDPA's time constraint “promotes judicial efficiency and conservation of judicial resources” and “safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh.” Acosta v. Artuz,221 F.3d 117, 123 (2d Cir.2000).

A petitioner may secure equitable tolling of the limitations period in certain “rare and exceptional circumstance[s].” Smith,208 F.3d at 17(internal quotation marks omitted); see Holland v. Florida,560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). The petitioner must establish that (a) “extraordinary circumstances” prevented him from filing a timely petition, and (b) he acted with “reasonable diligence” during the period for which he now seeks tolling. Smith,208 F.3d at 17. Attorney error generally does not rise to the level of an “extraordinary circumstance.” Baldayaque v. United States,338 F.3d 145, 152 (2d Cir.2003). However, attorney negligence may constitute an extraordinary circumstance when it is “so egregious as to amount to an effective abandonment of the attorney-client...