Diaz v. Kelly

• Decision Date: 25 January 2008
• Docket Number: Docket No. 01-2687-pr.,Docket No. 02-2037-pr.,Docket No. 01-2736-pr.
• Citation: 515 F.3d 149
• Parties: Angel DIAZ, Petitioner-Appellant, v. Walter KELLY, Superintendent of Attica Correctional, Respondent-Appellee. Yoke Yew Tan, Petitioner-Appellant, v. Floyd G. Bennett, Superintendent, Elmira Correctional Facility, Respondent-Appellee. Warren Taylor, Petitioner-Appellant, v. Gary F. Hodges, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

515 F.3d 149

Angel DIAZ, Petitioner-Appellant, v. Walter KELLY, Superintendent of Attica Correctional, Respondent-Appellee.

Yoke Yew Tan, Petitioner-Appellant, v. Floyd G. Bennett, Superintendent, Elmira Correctional Facility, Respondent-Appellee.

Warren Taylor, Petitioner-Appellant, v. Gary F. Hodges, Respondent-Appellee.

Docket No. 01-2687-pr.

Docket No. 01-2736-pr.

Docket No. 02-2037-pr.

United States Court of Appeals, Second Circuit.

Heard: December 11, 2007.

Decided: January 25, 2008.

Gail Jacobs, Great Neck, N.Y., for Petitioner-Appellant Diaz.

Loretta S. Courtney, Asst. District Atty., Rochester, N.Y. (Michael C. Green, Monroe County District Atty., Rochester, N.Y., on the brief), for Respondent-Appellee Kelly.

Randa D. Maher, Great Neck, N.Y., for Petitioner-Appellant Tan.

Nicole Beder, Asst. District Atty., New York, N.Y. (Robert M. Morganthau, N.Y. County District Atty., Morrie I. Kleinbart, Special Asst. District Atty., New York, N.Y., on the brief), for Respondent-Appellee Bennett.

Monica R. Jacobson, New York, N.Y., for Petitioner-Appellant Taylor.

Tracy Siligmueller, Asst. District Atty., Bronx, N.Y. (Robert T. Johnson, Bronx County District Atty., Nancy D. Killian, Na Na Park, Asst. District Attys., Bronx, N.Y., on the brief), for. Respondent-Appellee Hodges.

Before: NEWMAN, CARDAMONE, and CABRANES, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

These three appeals from denials of petitions for writs of habeas corpus all present variations of the issue of what circumstances toll the one-year statute of limitations prescribed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d). Diaz appeals from the October 2, 2001, judgment of the District Court for the Western District of New York (Hugh B. Scott, Magistrate Judge). Yoke Yew Tan appeals from the July 25, 2001, judgment of the District Court for the Southern District of New York (Gerard E. Lynch, District Judge). Warren Taylor appeals from the December 4, 2001, judgment of the. District Court for the Southern District of New. York (Robert. W. Sweet, District Judge). Diaz and Tan sought tolling on the ground that lack of proficiency in the English language prevented them from timely filing their petitions. Taylor sought tolling because of the lack of notification of the denial of his state court collateral attack.

We conclude that English language deficiency can warrant tolling of the AEDPA limitations period, but that Diaz and Tan have failed to allege circumstances establishing the due diligence required to warrant tolling. We also conclude that the state court's lack of notification and Taylor's prompt filing after receiving a response to his inquiry to the state court justified tolling. We therefore affirm in No. 01-2687 (Diaz) and No. 01-2736(Tan), and reverse and remand in No. 02-2037 (Taylor).

Background

Diaz. Diaz, who asserts that he is "primarily a Spanish speaker," was convicted in New York Supreme Court of murder in 1992. Because his conviction became final before the enactment of AEDPA, he was entitled to file his federal petition for habeas corpus within a one-year grace period from the Act's effective date, April 24, 1996, see Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir.1998). His habeas filing deadline was thus April 24, 1997, unless some portion of the one-year grace period was subject to tolling. Tolling was indisputably available for the interval during which Diaz's state court collateral challenge to his conviction, filed prior to the enactment of AEDPA, was pending. See 28 U.S.C § 2244(d)(2). That interval ended on February 5, 1997. Thus, the limitations period for his federal habeas petition, unless further tolled, would have ended on February 5, 1998, in order to afford Diaz the full one-year grace period authorized by Ross. Diaz filed the petition on June 29, 1998, more than four months late.

In response to an inquiry from the District Court as to why the petition was not time-barred, Diaz replied that he did not speak or read English, that an inmate had assisted him in filing his state court collateral challenge, and that "it took me a while to find someone" to provide assistance with his federal court petition.

The Magistrate Judge, to whom the matter had been referred, initially deferred a ruling on timeliness in October 1998, and ultimately dismissed the petition as untimely in September 2001.

Tan. Tan, who is of Malay origin and speaks a Chinese Cantonese dialect, was convicted in New York Supreme Court of narcotics offenses in 1995. His conviction became final on July 8, 1998, after the effective date of AEDPA. Accordingly, he had until July 8, 1999 to file his petition. Tan filed his petition on May 4, 2000, nearly eleven months late. In July 1999, before he had filed his habeas petition, but after his one year statutory period had already expired, Tan sought to vacate the judgment of conviction pursuant to New York Criminal Procedure Law Section 440.10. He did so with the assistance of an inmate who spoke Chinese and English. The motion was denied, as was leave to appeal. Because his one year statutory filing period had already expired, this subsequent state court collateral attack does not toll the federal limitations period. See Cf. Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir.2005) ("To toll the AEDPA statute of limitations, the state petition must be both `properly filed' and `pending' during the tolling period.").

In response to two inquiries from the District Court as to why the petition was not time-barred, Tan alleged lack of "a working knowledge" of English and "difficult[y]" in finding interpreters in the Department of Correctional Services. The District Court dismissed the petition as untimely in July 2001.

Taylor. Taylor was convicted in New York Supreme Court of manslaughter in 1996. Taylor's conviction became final on April 13, 1998. Taylor filed a state court coram nobis motion on April 23, 1998, which was denied by the Appellate. Division on July 16, 1998. Taylor filed a NYCPL § 440.10 motion on March 26, 1999, which was denied on March 3, 2000, with leave to appeal denied on. July 6, 2000. Because state court consideration of these state collateral attacks during a total of 527 days tolled his one year habeas limitations period, Taylor had until October 17, 2000, to file his federal petition, in the absence of any additional tolling. He filed his petition on February 1, 2001, about three and a half months late.

In response to an inquiry from the District Court as to why his petition was not time-barred, Taylor explained that he had not received the Appellate Division's July 6, 2000, order denying leave to appeal the denial of his section 440 motion, until January 31, 2001. On that date he signed for legal mail at Gowanda Correctional Facility, to which he had been transferred from Auburn Correctional Facility, and picked up a letter from the Appellate Division, post-marked January 27, 2001, which contained the Court's July 6, 2000, order. The Court's January 27, 2001, letter was sent in response to an inquiry sent by Taylor to the Court on December 15, 2000. Taylor's federal petition was filed one day after he finally learned of the state court's July 6, 2000, order.

The Appellate Division has no mail records showing' a copy of its July 6, 2000, order having been previously mailed to Taylor, and the Auburn Correctional Facility shows no record of Taylor receiving any legal mail while incarcerated there.

The district court dismissed Taylor's petition as untimely in November 2001.

Certificates of appealability. In April 2006, this Court granted motions for a certificate of appealability ("COA") and appointed counsel for Diaz and Tan to consider whether lack of proficiency in English warranted tolling of the limitations period and whether they had acted with due diligence during the periods they seek to toll. We also granted a COA and appointed counsel for Taylor to consider whether unusual delay in receipt of the state appellate court's decision denying an application for leave to appeal warranted equitable tolling of the limitations period and whether he had acted with due diligence during the period he seeks to toll.¹

Discussion

All three appeals present, in different contexts, the issue of whether equitable tolling of the one-year limitations period of AEDPA is available in the circumstances presented. We have previously recognized that equitable tolling can apply to the AEDPA limitations period, see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000), as have all of the circuits that have considered the question, see Dunlap v. United States, 250 F.3d 1001, 1004 n. 1 (6th Cir.2001) (collecting cases). To warrant equitable tolling, a petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); see Smith, 208 F.3d at 17 (same).

Before determining the applicability of equitable tolling in the three pending appeals, we pause to consider whether the doctrine remains available to toll the AEDPA limitations period in light of the Supreme Court's recent decision in Bowles v. Russell, ___ U.S. ___, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). In Bowles the Court ruled that statutory time periods limiting the time for filing a notice of appeal, being jurisdictional in the strict sense, are not subject to equitable exceptions. See id., at 2366-67. Although the Court referred to "the jurisdictional significance of the fact that a time limitation is set forth in a statute," id. at 2364, it would be an unwarranted extension of Bowles to think that the Court was impliedly rendering equitable tolling inapplicable to limitations periods just because they are set forth in statutes. Since a statute of limitations is a defense, see Fed.R.Civ.P. 8(c), it has not been regarded as jurisdictional, see...