Cromwell v. Keane

• Decision Date: 12 January 1999
• Docket Number: No. 98 Civ. 0013(JSR).,98 Civ. 0013(JSR).
• Citation: 33 F.Supp.2d 282
• Parties: William CROMWELL, Petitioner, v. John P. KEANE, Respondent.
• Court: U.S. District Court — Southern District of New York

33 F.Supp.2d 282

William CROMWELL, Petitioner, v. John P. KEANE, Respondent.

No. 98 Civ. 0013(JSR).

United States District Court, S.D. New York.

January 12, 1999.

William Cromwell, Woodbourne, NY, pro se.

MEMORANDUM ORDER

RAKOFF, District Judge.

Petitioner, pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 5, 1997. By Order dated January 5, 1998, the Honorable Thomas P. Griesa, Chief Judge of the Southern District of New York, directed petitioner to show cause why the petition should not be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), since the petition was filed over 19 months after the effective date of the AEDPA. Petitioner responded by Affidavit dated March 31, 1998, offering reasons why his petition should not be so dismissed. On May 27, 1998, the Honorable Andrew J. Peck, United States Magistrate Judge, filed a Report and Recommendation recommending that the petition be dismissed as untimely under the AEDPA. Having received objections from petitioner, the Court, after undertaking a full de novo review, hereby adopts the Magistrate Judge's Report and Recommendation in all material respects. In particular, with respect to petitioner's claim that he qualifies for an "actual innocence" override of AEDPA's statute of limitations, the Court finds that, even assuming, arguendo, that such an override exists, petitioner's proffered "new evidence" of innocence is neither new nor admissible. See Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); see also Alexander v. Keane, 991 F.Supp. 329, 338 (S.D.N.Y.1998). Accordingly, the petition is dismissed with prejudice. Clerk to enter judgment.

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

Pursuant to Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, I recommend that the Court summarily dismiss petitioner William Cromwell's habeas corpus petition on the ground that he is not entitled to relief, since his December 5, 1997 petition is untimely under the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").

FACTS

Petitioner Cromwell's habeas petition was received by the Court's Pro Se Office on December 5, 1997. (See Petition.) The Petition indicates that on December 8, 1983, Cromwell was convicted of murder in the second degree, criminal possession of a weapon and assault, and was sentenced to 18 years to life imprisonment. (Petition ¶¶ 1-4.) The Appellate Division, First Department affirmed his conviction without opinion on March 17, 1988. People v. Cromwell, 138 A.D.2d 983, 526 N.Y.S.2d 875 (1st Dep't 1988). (See Petition ¶ 9(a) -(d).) The New York Court of Appeals denied leave to appeal on June 15, 1988 and denied reconsideration on August 17, 1988. People v. Cromwell, 72 N.Y.2d 857, 532 N.Y.S.2d 507, 528 N.E.2d 897, reconsideration denied, 72 N.Y.2d 917, 532 N.Y.S.2d 851, 529 N.E.2d 181 (1988). (See also Petition ¶ 9(e); Cromwell "Procedural History & Claims Presented" Supp. To Petition, at p. 3.)

In June 1996, petitioner Cromwell filed a pro se motion to vacate his conviction in New York Supreme Court pursuant to CPL § 440.10. The trial court denied the application on August 8, 1996 and the First Department denied leave to appeal on December 18, 1996. (See Cromwell "Procedural History & Claims Presented" Supp. To Petition at pp. 4-5 & Ex.; see also Petition ¶ 11(b).)

As previously noted, petitioner Cromwell filed his present federal habeas corpus petition with the Court's Pro Se Office on December 5, 1997. By Order dated January 5, 1998, Chief Judge Griesa directed Cromwell to show cause why the AEDPA's one-year statute of limitations should not bar his petition. By Affidavit dated March 31, 1998, Cromwell asserted that his habeas petition was not untimely for three reasons. First, Cromwell asserted that because he filed his habeas petition within one year of the First Department's decision denying his CPL § 440.10 collateral attack, his habeas petition was timely. (Cromwell 3/31/98 Aff. at pp. 6-7.) Second, Cromwell relied upon Judge Sweet's decision in Rosa v. Senkowski, 97 Civ. 2468, 1997 WL 436484 (S.D.N.Y. Aug.1, 1997), certificate of appealability granted, 1997 WL 724559 (S.D.N.Y. Nov.19, 1997), for the proposition that application of the AEDPA's one-year statute of limitations would violate the Suspension Clause. (Cromwell 3/31/98 Aff. at pp. 3-4.) Third, Cromwell asserted that his petition should be entertained because he has shown evidence of "actual innocence." (Id. at 4-5.)

ANALYSIS

THE AEDPA'S STATUTE OF LIMITATIONS BARS CROMWELL'S PETITION

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act. The AEDPA, inter alia, instituted a one-year statute of limitations for habeas petitions filed after April 24, 1996:

(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....

(2) The time during which a properly filed application for State post-conviction 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)(1)-(2); see Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996).

In Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997), the Second Circuit held that "where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, we see no need to accord a full year after the effective date of the AEDPA." 107 F.3d at 93. Rather, the Second Circuit gave the prisoner a "reasonable time" after enactment of the AEDPA to bring his habeas petition. Id. (finding petition brought 72 days after enactment of AEDPA to be timely).

Here, Cromwell's conviction became final in 1988, some eight years before enactment of the AEDPA and over nine years before he brought his present habeas corpus petition. (See 1/5/98 Order at 2 & n. 2.) Thus, Cromwell must be allowed a "reasonable time" after the April 24, 1996 enactment of the AEDPA to bring his federal habeas petition.

Were it not for his CPL § 440.10 collateral attack, it is clear that Cromwell's December 5, 1997 petition—more than a year and a half after the April 24, 1996 effective date of the AEDPA—would be untimely. See, e.g., Thomas v. Greiner, 97 Civ. 2958, 1998 WL 236239 at *2 (S.D.N.Y. April 27, 1998) (Preska, D.J. & Peck, M.J.); Espinal v. Walker, 97 Civ. 3187, 1998 WL 151273 at *2 (S.D.N.Y. March 27, 1998) (Patterson, D.J. & Peck, M.J.); Rodriguez v. Bennett, 97 Civ. 5953, 1998 WL 104604 at *1 (S.D.N.Y. March 9, 1998) (Rakoff, D.J.); Rowe v. Senkowski, 97 Civ. 1549, 1998 WL 51288 at *1 (S.D.N.Y. Feb.4, 1998) (Rakoff, D.J.); Acosta v. Artuz, 985 F.Supp. 438, 439-40 (S.D.N.Y.1997) (Rakoff, D.J.); Yeung v. Artuz, 97 Civ. 3288, 1997 WL 572908 at *2 (S.D.N.Y. Sept.10, 1997) (Baer, D.J. & Peck, M.J.); Roldan v. Artuz, 976 F.Supp. 251, 253-54 (S.D.N.Y. 1997) (Batts, D.J. & Peck, M.J.); Morales v. Artuz, 97 Civ. 3337, 1997 WL 588990 at *2 (S.D.N.Y. Sept.9, 1997) (Baer, D.J. & Peck, M.J.); Fluellen v. Walker, 975 F.Supp. 565, 566-67 (S.D.N.Y. Sept.7, 1997) (Wood, D.J. & Peck, M.J.); Lee v. Artuz, 969 F.Supp. 872, 873-74 (S.D.N.Y.1997) (Stein, D.J. & Peck, M.J.). Indeed, the Court is not aware of any decision in this district finding a petition brought after April 24, 1997 to be timely where the state conviction was final before enactment of the AEDPA.

A. Cromwell's State Collateral Attack Does Not Make His Petition Timely

Cromwell argues that the AEDPA's one-year statute of limitations should start running only from the First Department's December 18, 1996 denial of his CPL § 440.10 collateral attack. (Cromwell 3/31/98 Aff. at pp. 6-7.) Cromwell misses the import of § 2244(d)(2). That section does not state that the one-year statute begins to run anew after decision on a state collateral attack. Such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations through the device of bringing a belated state collateral attack.

Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations. Here, the AEDPA's statute of limitations, as interpreted by Peterson, had not expired in June 1996 when Cromwell brought his state collateral attack 40 days after the AEDPA's April 24, 1996 effective date. See, e.g., Peterson v. Demskie, 107 F.3d at 93; Roldan v. Artuz, 976 F.Supp. at 254 (Peterson's outer limit likely between 6 and 9 months; dicta). The period that Cromwell's CPL § 440.10 motion was under consideration—from June 3, 1996¹ to December 18, 1996 (198 days)—thus is not to be counted. Accordingly, the period from April 24, 1996 to June 3, 1996 (40 days) plus the period from December 19, 1996 to December 5, 1997 (352 days), for a total of 392 days, is the applicable period to determine if Cromwell's petition was timely.² Since 392 days exceeds one year (and obviously also exceeds the lesser "reasonable time" provided under Peterson), Cromwell's habeas petition is untimely. See, e.g., Rondon v. Artuz, 97 Civ. 6904, 1998 WL 182424 at *1-2 & n. 2 (S.D.N.Y. April 17, 1998); Thompson v. Herbert, No. 97 CV 3645, 1998 WL 199823 at *1-2 (E.D.N.Y. March 16, 1998); Latif v. Portuendo, No. 97 CV 4527, 1998 WL 199846 at *1-2 (E.D.N.Y. March 16, 1998); Pollard v. Stinson, No. 97 CV 6429, 1998 WL 178870 at *1 (E.D.N.Y. March 6, 1998); Jenkins v. Strack, No. 97 CV 6153, 1998 WL 178867 at *1 (E.D.N.Y. March 6, 1998); Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998) ("The tolling provision does not, however, `revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock...