Belot v. Burge

• Decision Date: 20 June 2007
• Docket Number: Docket No. 05-6875-pr.
• Citation: 490 F.3d 201
• Parties: Jean M. BELOT, Jr., Petitioner-Appellant, v. John W. BURGE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

490 F.3d 201

Jean M. BELOT, Jr., Petitioner-Appellant, v. John W. BURGE, Respondent-Appellee.

Docket No. 05-6875-pr.

United States Court of Appeals, Second Circuit.

Argued: April 11, 2007.

Decided: June 20, 2007.

Brian Sheppard, New Hyde Park, NY, for Petitioner-Appellant.

Bridget Rahilly Steller, Chief Assistant District Attorney of Dutchess County (William V. Grady, District Attorney, on the brief), Poughkeepsie, NY, for Respondent-Appellee.

Before: WINTER, LEVAL, and CABRANES, Circuit Judges.

LEVAL, Circuit Judge.

Petitioner Jean M. Belot appeals from the denial by the United States District Court for the Southern District of New York (Pauley, J.), of his petition for writ of habeas corpus, seeking to set aside his New York State conviction for Criminal Possession of a Weapon in the Third Degree. The district court, following the recommendation of Magistrate Judge Michael H. Dolinger, found that the petition was two days late and thus dismissed it as time-barred. See Belot v. Burge, No. 03-civ-1478 (S.D.N.Y. Sept. 19, 2005). Belot does not deny that his petition was late, but argues that the district court should have given him the benefit of equitable tolling. We affirm the judgment of the district court.

BACKGROUND

Belot was indicted in the Supreme Court of New York for second-degree murder and criminal possession of a weapon in the second and third degrees. The jury found him guilty of criminal possession of a weapon in the third degree, and not guilty on the other counts. The court sentenced Belot, as a persistent violent felony offender, to an indeterminate prison term of twenty years to life.

After Belot was unsuccessful in his direct appeal, he filed a motion under New York Criminal Procedure Law § 440.10 to vacate his judgment on March 30, 2001. That same day he executed his first petition under 28 U.S.C. § 2254. On July 30, 2001, Belot moved to withdraw the petition in order to exhaust remedies in the State courts. Magistrate Judge Mark D. Fox issued an order dismissing the petition without prejudice. See Belot v. Walker, No. 01-civ-3433 (S.D.N.Y. Mar. 8, 2002). In that order, Judge Fox provided a chronology of relevant dates and events to help Belot calculate how many days remained before expiration of his one-year limitation period under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214.¹ See 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court."). The order advised Belot that "[t]otal elapsed time is 266 days, which means that petitioner has 99 days in which to file his new petition following the exhaustion of state remedies." Belot, No. 01-civ-3433, at *3. Belot replied by letter: "Petitioner takes notice of the total elapsed time of 266 days, which the Court considerately totaled for the petitioner. Petitioner is informed that he has 99 days in which to file the petition once state remedies are exhausted."

After Magistrate Judge Fox issued his order, Belot's § 440.10 application remained pending in state court, further tolling the limitation period for the filing of the federal petition. In a decision and order dated June 23, 2002, the County Court of Dutchess County denied the § 440.10 motion. The New York State Supreme Court, Appellate Division, Second Judicial Department denied Belot's application for leave to appeal the denial on September 18, 2002. At that point, his limitation period began again to run. According to Magistrate Judge Fox's calculation, Belot had until December 27, 2002, to file his petition. He filed his petition on January 2, 2003. When he filed his new petition, it was assigned to Magistrate Judge Michael H. Dolinger. Magistrate Judge Dolinger disagreed with Magistrate Judge Fox's calculation. Under Magistrate Judge Dolinger's calculation, Belot had until December 31, 2002, to file his petition. Thus under either calculation, Belot's petition was untimely.

Belot does not dispute that his petition was untimely. He argues instead that he should be excused under the doctrine of equitable tolling because the Auburn Correctional Facility, where he was incarcerated at the time of his filing, was under a lockdown from December 17, 2002, to December 23, 2002, and as a result, he was denied access to the law library. He claims he was therefore unable to complete the final version of his petition. Because he believed his petition was due by December 27, 2002, Belot had requested and been granted Special Access to the prison law library for several days in December, permitting him to use the library for longer hours than otherwise would have been the case. As a result of the lockdown, however, Belot alleges that his access to the library was very substantially diminished until December 28, 2002.² Believing that he would not be able to meet his December 27, 2002 deadline, Belot wrote a letter to the Pro Se Clerk of the district court on December 26, 2002, saying that his petition would be delayed due to the lockdown and asking for an extension. The court never acted on this request. As noted, he filed his petition on January 2, 2003.

Magistrate Judge Dolinger rejected Belot's claim of entitlement to equitable tolling. See Belot v. Burge, No. 03-civ-1478 (S.D.N.Y. Jul. 14, 2005). The magistrate judge gave two grounds. First, lockdowns were sufficiently routine that they did not qualify as an "extraordinary circumstance" necessary to justify equitable tolling; and second, notwithstanding the lockdown, Belot could have filed "an unpolished—but timely—petition," id. at *19, and, in any event, knowing that he had approximately 99 days from the conclusion of his collateral appeal to file his petition, Belot should not have waited so long to work on his petition. Accordingly, the magistrate judge recommended the dismissal of the petition as time-barred, and the district court ruled accordingly.

DISCUSSION

We have held that "in rare and exceptional circumstances a petitioner may invoke the courts' power to equitably toll the limitations period." Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.2004) (quotation marks omitted). "To qualify for such treatment, the petitioner must establish that extraordinary circumstances prevented him from filing his petition on time, and that he acted with reasonable diligence throughout the period he seeks to toll." Id. (quotation marks omitted).

A threshold question is what standard of review we should apply when reviewing a district court's denial of equitable tolling as to a petition under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. In Baldayaque v. United States, 338 F.3d 145 (2d Cir.2003), we reviewed the district court's finding of fact for clear error and applied de novo review to the district court's analysis of a controlling legal question. Id. at 151. That case, however, did not involve our circumstances, where the district court denied equitable tolling not as a matter of law, but as an exercise of its discretion. We decide this as a matter of first impression in our Circuit.

Other circuits are divided on the applicable standard of review for equitable tolling determinations under AEDPA of questions other than findings of fact. Some circuits have held that when the facts are undisputed, the district court's decision on equitable tolling is reviewed de novo. See Brinson v. Vaughn, 398 F.3d 225, 231 (3d Cir.2005) (Alito, J.) (noting but not holding that "we are inclined to believe that where, as here, the relevant facts are not disputed, a District Court's decision on the question whether a case is sufficiently `extraordinary' to justify equitable tolling should be reviewed de novo.");³ Wade v. Battle, 379 F.3d 1254, 1264 n. 11 (11th Cir.2004) ("We review de novo a district court's decision on equitable tolling."); Dunlap v. United States, 250 F.3d 1001, 1007 n. 2 (6th Cir.2001) ("In this Circuit, we hold that where the facts are undisputed or the district court rules as a matter of law that equitable tolling is unavailable, we apply the de novo standard of review to a district court's refusal to apply the doctrine of equitable tolling; in all other cases, we apply the abuse of discretion standard." (emphasis added)); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999) ("[W]here, as here, the facts are undisputed as to the question of equitable tolling, we review de novo....").

Other circuits have held that the district court's decision on equitable tolling is reviewed for an abuse of discretion. See Cordle v. Guarino, 428 F.3d 46, 47 (1st Cir.2005) ("We review the district court's decision regarding equitable tolling in this habeas case for abuse of discretion."); Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.2003) ("[W]e review the district court's decision on equitable tolling of the limitation period for an abuse of discretion."). Several Circuits, however, take a third approach and provide for de novo review when the district court denies equitable tolling as a matter of law, and abuse of discretion in other circumstances where the court's decision is based on exercise of discretion. See Rouse v. Lee, 339 F.3d 238, 248 (4th Cir.2003) ("[W]here the relevant facts are undisputed and the district court denied equitable tolling as a matter of law, we review the district court's decision de novo. In all other circumstances, we review the denial of equitable tolling for an abuse of discretion." (emphasis added)); United States v. Saro, 252 F.3d 449, 455 n. 9 (D.C.Cir.2001) ("We have examined whether the court was `correct,' rather than whether it `abused its discretion,' because we employ de novo review when a district court holds—as the court appears to have done here—that the facts cannot justify equitable tolling as a matter of law."); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (reviewi...