Dillon v. Conway

• Decision Date: 26 April 2011
• Docket Number: Docket No. 08–4030–pr.
• Parties: Chauncey DILLON, Petitioner–Appellant,v.Superintendent James T. CONWAY, Attica Correctional Facility, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

642 F.3d 358

Chauncey DILLON, Petitioner–Appellant,

v.Superintendent James T. CONWAY, Attica Correctional Facility, Respondent–Appellee.

Docket No. 08–4030–pr.

United States Court of Appeals, Second Circuit.

Argued: April 6, 2011.Decided: April 26, 2011.

Michele Hauser, New York, NY, for petitioner-appellant.Sara M. Zausmer, Assistant District Attorney (Cyrus R. Vance, Jr., District Attorney, on the brief, Karen Schlossberg, Assistant District Attorney, of counsel), Office of the District Attorney, New York County, New York, NY, for respondent-appellee.Before: WINTER, CABRANES, and LOHIER, Circuit Judges.PER CURIAM:

Petitioner-appellant Chauncey Dillon (“Dillon”) appeals from an August 4, 2008 order of the United States District Court for the Southern District of New York (George B. Daniels, Judge ), granting the motion of respondent-appellee Superintendent James T. Conway (“Conway”) of Attica Correctional Facility (“Attica C.F.”) to dismiss Dillon's petition for a writ of habeas corpus (“the Petition”) on the ground that the Petition was barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A).¹

BACKGROUND

The facts in this case are not in dispute. On December 17, 2004, after a jury trial, the New York Supreme Court, New York County, entered a judgment of conviction against Dillon for Murder in the Second Degree, Assault in the First Degree, Attempted Robbery in the First Degree, two counts of Criminal Possession of a Weapon in the Second Degree, two counts of Criminal Possession of a Weapon in the Third Degree, and Reckless Endangerment in the First Degree. ² The convictions arose from Dillon's participation in a violent confrontation between the passengers of two cars following a collision in 2003. Dillon was sentenced principally to an indeterminate prison term of 30 years to life.

Dillon, represented by an attorney, appealed his conviction to the Appellate Division, First Department, claiming that (1) the prosecutor had placed inadmissible hearsay evidence before the jury during trial; (2) the prosecutor had impermissibly vouched for the credibility of a witness and improperly commented on Dillon's post-arrest silence in discussing a statement made by Dillon to the police; and (3) the trial court had erred in its instructions to the jury. On June 6, 2006, the Appellate Division unanimously affirmed Dillon's conviction. People v. Dillon, 30 A.D.3d 1135, 815 N.Y.S.2d 574 (1st Dep't 2006). Dillon applied for leave to appeal the Appellate Division's judgment to the New York State Court of Appeals. On August 31, 2006, the Court of Appeals denied Dillon's application, People v. Dillon, 7 N.Y.3d 812, 822 N.Y.S.2d 487, 855 N.E.2d 803 (2006); accordingly, his state court conviction became final ninety days later, on November 29, 2006.³

In order for his federal habeas petition to be timely, Dillon was required to file it on or before November 29, 2007, unless the statute of limitations was equitably tolled.

While incarcerated, Dillon had another inmate help him draft a pro se habeas petition, which he could have and would have timely filed before November 2007. In or around August 2007, however, Dillon retained an attorney, Richard M. Langone (“Langone”), to represent him in post-conviction collateral proceedings, and specifically to prepare a petition for habeas corpus to the District Court arguing that Dillon had received ineffective assistance of counsel in the proceedings before the New York trial and appellate courts. When Langone was retained, he was in private practice with one law partner who, soon afterwards, left the firm, saddling Langone with “approximately twenty active cases.” Joint Appx. at 19, 22–23. According to Langone, because of this workload, he was not able to begin working on Dillon's petition for habeas corpus until mid-October 2007. Joint Appx. at 19.

On November 13, 2007, Langone flew to Attica C.F. with a 16–page habeas corpus petition for Dillon to sign in front of a notary. By affidavit, Langone affirms that during the visit he and Dillon spoke about the statute of limitations for filing the petition for habeas corpus under AEDPA and that Dillon

specifically asked me not to wait until the last day to file the petition. I told him that I would not wait until the last day to file the petition.... On November 13, 2007, I left Attica prison with his verified petition in my hand and with him expecting that I would file it with [the District Court] before November 30th, the date I believed was the last day to file the petition.

Joint Appx. at 72 (some emphases supplied, some in original). Following this meeting, Langone continued to work on a lengthy memorandum of law to accompany the Petition.

Langone apparently operated under the incorrect assumption that the AEDPA statute of limitations begins to run on the day after a petitioner is denied leave to appeal to the New York Court of Appeals—that is, he believed he had until November 30, 2007 to file the Petition. According to the Report and Recommendation (“R & R”) of Magistrate Judge Douglas F. Eaton, whose R & R was adopted by Judge Daniels, this assumption resulted from a misinterpretation of an opinion of the United States District Court for the Eastern District of New York, Geraci v. Senkowski, 23 F.Supp.2d 246, 253 (E.D.N.Y.1998), aff'd, 211 F.3d 6 (2d Cir.2000). In Geraci, the District Court held, in different circumstances, that “[t]he [AEDPA] statute of limitations began running ... the day after the petitioner was denied leave to appeal.” Id. Langone had worked as a paralegal for one of the parties in Geraci v. Senkowski, and he allegedly relied upon that experience in determining the date by which the Petition was due.

In addition, for all of October and most of November, Langone, at Dillon's request, spent considerable time tracking down a copy of a videotape that Dillon believed would be useful in preparing the petition and would exonerate him.⁴ Langone's attempts to find the videotape reportedly took longer than expected because the Legal Aid Society initially sent him the wrong videotape. Due to the poor quality of the videotape, when Langone finally obtained the correct tape he needed to hire an “enhancing service” to render its contents discernible. During this period, Dillon's wife called Langone several times on behalf of Dillon to ask if he had filed the Petition and to report that “Dillon was worried about running out of time.” Joint Appx. at 20–21. Langone repeatedly told Dillon's wife that he was “working on the papers” and “not to worry.” Id.

On November 30, 2007, Langone filed the Petition with an accompanying memorandum of law and appendix. On January 31, 2008, Conway moved to dismiss the Petition as untimely under AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d)(1)(A). Following oral argument, Magistrate Judge Eaton issued the R & R in which he recommended that the District Court grant Conway's motion to dismiss the Petition as untimely.⁵ Langone subsequently submitted objections to the R & R, claiming that (1) confusion existed regarding the application of the one-year statute of limitations under AEDPA; (2) his particular circumstances warranted equitable tolling for one-day; (3) his assurance that he would file a timely petition, coupled with his miscalculation of the expiration of AEDPA's statute of limitations, had severed the “agency relationship” between Langone and Dillon; and (4) the combination of Dillon's financial inability to hire counsel at an earlier point and Langone's heavy professional burdens following the departure of his law partner, and Langone's diligent efforts to obtain evidence that Dillon believed would demonstrate his actual innocence, qualified as “extraordinary circumstances” compelling equitable tolling by one day.

In its Memorandum Decision and Order of August 4, 2008, see Dillon v. Conway, No. 07–CV–10728, 2008 WL 2971986 (S.D.N.Y. Aug. 4, 2008), the District Court adopted the R & R of Magistrate Judge Eaton in its entirety. This appeal followed.

DISCUSSION

The District Court determined, as a matter of law, that equitable tolling was not appropriate because the record did not reveal the requisite “extraordinary circumstances.” The existence of “extraordinary circumstances” sufficient to justify equitable tolling under § 2244(d) is a question of law, and we therefore review the judgment of the District Court de novo. Belot v. Burge, 490 F.3d 201, 206 (2d Cir.2007) (“If a district court denies equitable tolling [because] ... the governing legal standards would not permit equitable tolling in the circumstances—that aspect of the decision should be reviewed de novo.”).

The AEDPA statute of limitations “does not set forth ‘an inflexible rule requiring dismissal whenever’ its ‘clock has run.’ ” Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (quoting Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006)). Indeed, in Holland the Supreme Court concluded, as had all eleven Courts of Appeals to consider the question, that § 2244(d) “is subject to equitable tolling in appropriate cases.” Id. The Court went on to conclude that § 2244(d) may be tolled “only if [the petitioner] shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2560–62, 177 L.Ed.2d 130 (2010) (internal quotation marks omitted). As a result, the Supreme Court concluded that while “a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable tolling,” id. at 2564 (internal citations and quotation marks omitted), the Eleventh Circuit erred in concluding that “ ‘pure professional negligence’ on the part of a petitioner's attorney ... can never constitute an ‘extraordinary...