Adeline v. Stinson

• Decision Date: 01 August 1999
• Docket Number: Docket Nos. 98-2480
• Citation: 206 F.3d 249
• Parties: (2nd Cir. 2000) SCOTT ADELINE, Petitioner-Appellant, v. JAMES STINSON, Superintendent Of Great Meadow Correctional Facility, Respondent-Appellee. (Lead); 98-2744(Con)
• Court: U.S. Court of Appeals — Second Circuit

Page 249

206 F.3d 249 (2nd Cir. 2000)

SCOTT ADELINE, Petitioner-Appellant, v. JAMES STINSON, Superintendent Of Great Meadow Correctional Facility, Respondent-Appellee.

Docket Nos. 98-2480(Lead); 98-2744(Con)

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: February 3, 2000

Decided: March 14, 2000

Appeal from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) dismissing petitioner's petition for a writ of habeas corpus as time barred.

Affirmed.

BARRY M. FALLICK, Rochman Platzer Fallick & Sternheim, LLP, New York, NY, for Petitioner-Appellant.

HOWARD A. GETZLER, Assistant District Attorney, Kings County, New York (Charles J. Hynes, District Attorney, Kings County, New York, Roseann B. MacKechnie, Assistant District Attorney, of counsel), Brooklyn, NY, for Respondent-Appellee.

Before: OAKES, CABRANES, and SACK, Circuit Judges.

PER CURIAM:

Petitioner-Appellant Scott Adeline appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) dismissing, as time barred, his petition for a writ of habeas corpus. The question presented is whether petitioner's motions to the Appellate Division of the Supreme Court and the Court of Appeals of New York, which sought review of his conviction and were pending or brought on or after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, were properly filed applications for state post-conviction relief recognized as such under governing state procedures. We hold that the motion to the New York Court of Appeals was not, that petitioner's time to file his petition for federal habeas corpus relief therefore was not tolled during its pendency, and that as a result the petition's filing was untimely. Accordingly, we affirm.

BACKGROUND

On February 7, 1985, following a jury trial in New York state court, petitioner was convicted of the murder of Joseph Chianese. The government alleged that petitioner had entered into an agreement with Chianese and another man to steal cocaine from a Brooklyn garage. When petitioner and Chianese entered the garage, however, petitioner, ignoring the cocaine, shot and killed Chianese because of a long-standing dispute regarding Chianese's girlfriend instead. On February 27, 1985, petitioner was sentenced to imprisonment for twenty years to life. On July 7, 1986, petitioner's conviction was unanimously affirmed by a panel of the New York Appellate Division, Second Department. People v. Adeline, 122 A.D.2d 61, 504 N.Y.S.2d 218 (N.Y. App. Div. 1986).

By letter dated July 24, 1986 supplemented by another dated August 11, 1986, petitioner applied for permission to appeal to the New York Court of Appeals. On December 31, 1986, the New York Court of Appeals denied the application without prejudice to petitioner's ability to renew it within thirty days after the Appellate Division's resolution of petitioner's pending motion to reargue his appeal before it. People v. Adeline, 69 N.Y.2d 707, 512 N.Y.S.2d 1033, 504 N.E.2d 401 (1986) (table). On January 20, 1987, the Appellate Division granted petitioner's motion to reargue but, on reconsideration, again affirmed his conviction. Petitioner did not renew his application to appeal to the New York Court of Appeals.

In 1988 and again in 1994, petitioner sought to vacate his judgment of conviction under N.Y. Crim. Proc. Law 440.10. New York Supreme Court ruled against him on each occasion, and on each occasion the Appellate Division declined to hear an appeal. Such refusals are not themselves appealable to the New York Court of Appeals, as that court ruled in dismissing petitioner's attempt to appeal with respect to his 1994 petition. People v. Adeline, 86 N.Y.2d 731, 631 N.Y.S.2d 612, 655 N.E.2d 709 (1995) (table).

On April 19, 1996, petitioner moved in the Appellate Division to reargue his direct appeal, which had been decided by that court nearly a decade before. The motion was denied on June 13, 1996. Then, on April 17, 1997, petitioner filed an application with the New York Court of Appeals for what he styled a "certificate granting renewal of direct appeal." On May 20, 1997, the Court of Appeals dismissed the application in a one line order by Judge Levine. People v. Adeline, 89 N.Y.2d 1087, 660 N.Y.S.2d 381, 682 N.E.2d 982 (1997) (table).

Finally, on July 16, 1997, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 in the United States District Court for the Eastern District of New York.¹ In an order dated April 17, 1998, the district court concluded that the petition was time barred. On April 28, 1998, the district court entered a judgment dismissing the complaint. In a July 12, 1999 amended order, the district court granted a certificate of appealability pursuant to which petitioner brought this appeal. We now affirm.

DISCUSSION

I. Applicable Law

Among the changes in habeas corpus law ushered in by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), was the provision of a limitations period for the filing of federal petitions for habeas corpus. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). AEDPA's general rule is that a prisoner in custody as a result of a state-court conviction has one year after the date that his or her conviction becomes final in which to file. See id.; 28 U.S.C. 2244(d)(1). In Ross we decided that a prisoner, such as Adeline, whose conviction became final before AEDPA's effective date of April 24, 1996 has one year thereafter, or until April 24, 1997, to file a 2254 habeas petition. See Ross, 150 F.3d at 103.

Under AEDPA, however, "[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. 2244(d)(2). In Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), we held that this tolling provision applies to "a petition challenging a pre-AEDPA conviction" and the one-year period determined to be applicable by Ross. Bennett, 199 F.3d at 118-19.

Under Bennett, to qualify for tolling purposes under 2244(d)(2), "an application for state post-conviction relief recognized as such under governing state procedures [must] ha[ve] been filed" by the petitioner. Id. at 123. A properly filed "statecourt petition is 'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Id. at 120.

Petitioner contends that his one-year limitation period was tolled twice: once during the pendency of his April 1996 motion to the Appellate Division (between April 24, 1996, the AEDPA effective date, and June 13, 1996, when the motion was denied); and once during the pendency of his April 1997 application for a "certificate granting renewal" to the New York Court of Appeals (between April 17, 1997, when the application was filed, and May 27, 1997, when the court dismissed it). Petitioner contends that his petition for habeas corpus was timely because, after deducting both tolled periods in the computation, the petition was effectively filed within the one year period we recognized in Ross. If either period was not tolled, however, the petition was time barred.² Petitioner does not contend otherwise.

The question on this appeal, then, is whether petitioner's 1996 motion to reargue before the Appellate Division and his 1997 application to the New York Court of Appeals were both properly filed applications for post-conviction relief recognized as such under governing state procedures. We conclude that petitioner's 1997 application to the New York Court of Appeals was not. Because this disposes of the appeal, we do not consider whether petitioner's time to file was tolled during the pendency of his 1996 motion to the Appellate Division.

II. Whether Sufficient...