Flax v. Kelly, No. 99-CV-6123CJS (W.D.N.Y. 10/6/2003)
| Decision Date | 06 October 2003 |
| Docket Number | No. 99-CV-6123CJS.,99-CV-6123CJS. |
| Parties | NEWNON FLAX, Petitioner, v. WALTER KELLY, Superintendent, Attica Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
Newnon Flax, pro se, Auburn Correctional Facility, Auburn, NY, for Petitioner
Frank J. Clarke, Esq., Buffalo, NY, for Respondent
DECISION AND ORDER
Petitioner Newnon Flax ("Flax") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of rape in the first degree, one count of robbery in the second degree, and one count of burglary in the second degree. For the reasons set forth below, Flax's § 2254 petition is dismissed.
On November 10, 1987, Flax was charged under Indictment Number 87-0889-001 with one count of first degree rape for the June 4, 1987 assault of Carol Peal ("Peal"). Under the same indictment, he was charged with one count of second degree burglary, one count of second degree robbery, and one count of first degree rape for the September 11, 1987 attack of Linda Jacobs ("Jacobs").
On June 4, 1987 as Peal was walking home from the store late at night on Buffalo's eastside, Flax grabbed her from behind, held a knife to her neck and told her not to scream. He dragged her to a nearby house, pushed her inside, and raped her. Flax fled the scene after the attack, taking her purse with him. Peal was taken to the hospital and examined; the laboratory tests confirmed the presence of semen.
Peal had known Flax as an acquaintance prior to the rape. Several days later, she decided to return to the neighborhood bar where she had seen Flax earlier on the night of the rape in order to look for him. When Flax saw her enter the bar, he began screaming at her and called her a liar. Peal tried to use the phone to call the police, but Flax depressed the receiver, allegedly told her she was "dead meat," and left the bar.
Peal eventually was able to use a pay telephone outside of the bar to call 911. When the police arrived, she rode with them in the patrol car and eventually spotted Flax on the porch of a house in the neighborhood. The police then stopped and arrested him. Flax apparently was released after his initial arraignment on the Peal charge.
On September 11, 1987, Jacobs encountered Flax at a bar in the building where she worked in downtown Buffalo. Jacobs previously had been involved in a relationship with Flax, but they were no longer dating at that time. That evening, Flax propositioned Jacobs sexually several times, but she rebuffed his advances. The bar manager eventually called the police because Flax would not stop harassing Jacobs; the police removed Flax from the bar but did not arrest him. After the police left, Flax returned to the bar and continued to pester Jacobs.
As a result, Jacobs decided to leave. When she hailed a taxi at the bus station, Flax got into the cab behind her and followed her home. Soon thereafter, he appeared at her window asking to be let in. Jacobs left the apartment and tried to solicit help from her neighbors in the housing complex. The search was unsuccessful. As she was opening the door to her apartment, she was grabbed by Flax from behind and pushed inside. Flax forced her into the bedroom where he shoved her down and raped her. Flax failed to ejaculate, however, because Jacobs kicked him. Flax then left the apartment taking her checkbook with $200 in cash. Jacobs chased after him with a stick, yelling at him to give back her checkbook.
Jacobs told the police that night that she had been robbed and sexually abused; she claimed that she did not think Flax raped her because he had not ejaculated. Jacobs was not examined by a doctor until two days after the assault, and no semen samples of value in confirming the rape could be obtained.
Flax was tried before a jury in Erie County Supreme Court (Kasler, J.) on May 9 to May 13, 1988. The jury convicted him of the Peal rape, but acquitted him of the rape charge involving Jacobs. The jury also found Flax guilty of robbery in the second degree and burglary in the second degree with regard to the Jacobs incident. Flax was sentenced on June 17, 1988 to an indeterminate term of imprisonment of 12 1/2 to 25 years on the rape charge, and two indeterminate terms of 7 1/2 to 15 years on the burglary conviction and robbery conviction. All sentences were set to run concurrently.
Flax appealed his conviction to the Fourth Department which unanimously affirmed his conviction in a decision entered November 15, 1989. People v. Flax, 155 A.D.2d 894 (N.Y. App. Div. 1989). The Appellate Division further found that the trial court improperly sentenced Flax to concurrent terms of imprisonment and remanded the matter for the imposition of consecutive sentences. Id. at 894. The Court of Appeals denied leave to appeal on May 24, 1990.
Flax sought to have his appellate counsel declared ineffective in two applications for a writ of error coram nobis filed on May 3, 1993 and November 12, 1994. The Fourth Department denied the requested relief in both instances. Flax also attacked his conviction collaterally in two motions to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 filed on March 9, 1994, and March 2, 1995, respectively. After the trial court denied the motions, the Fourth Department denied leave to appeal in both instances, as did the Court of Appeals.
This federal habeas petition followed in which Flax raises the following grounds for relief: 1) the indictment was defective; 2) his appellate counsel was ineffective; 3) his trial counsel was ineffective; 4) the trial court erred in its Sandoval ruling, improperly limited the read-back of testimony to the jury, issued an erroneous reasonable doubt charge, and failed to order a competency hearing; and 5) the identification evidence against him was insufficient and based on an unduly suggestive identification procedure.
By order dated April 15, 1999, the Court (Curtin, J.) directed Flax to explain why his federal habeas petition, filed on March 15, 1999, some nine years after his conviction became final, was not untimely under 28 U.S.C. § 2244(d)(1).1 Upon review of Flax's response dated April 11, 1999, see Docket ("Dkt.") #5, Judge Curtin determined that his petition should be considered timely. See Dkt. #6. Respondent, however, continues to challenge the timeliness of Flax's petition. For the reasons stated below, the Court disagrees with respondent and finds the petition is indeed timely.
Under AEDPA, "`[t]he 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.'" Adeline v. Stinson, 206 F.3d 249, 251 (2d Cir. 2000) (quoting 28 U.S.C. § 2244(d)(2)). In Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000), the Second Circuit 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 v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). Bennett, 199 F.3d at 118-19.
To qualify for the benefit of § 2244(d)(2)'s tolling provision, "`an application for state post-conviction relief recognized as such under governing state procedures [must] ha[ve] been filed'" by the petitioner. Adeline, 206 F.3d at 251 (quoting Bennett, 199 F.3d at 123). A "`properly filed state-court 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 procedure.'" Id. (quoting Bennett, 199 F.3d at 123).
In this case, Flax filed a habeas petition in state court pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") § 7001 et seq. on March 17, 1997, thirty-eight (38) days before the one-year limitations period was to expire on April 24, 1997. Wyoming County Supreme Court denied Flax's state habeas petition on April 15, 1997. The Appellate Division affirmed the denial of the petition on November 13, 1998, People v. Flax, 255 A.D.2d 1018 (4th Dept. 1998), and the Court of Appeals denied leave to appeal on February 11, 1999, People v. Flax, 93 N.Y.2d 801 (1999). At that time, the one-year grace period again began to run. Flax therefore had thirty-eight (38) days, or until March 21, 1999, to file his federal petition.
According to the disbursement form attached to Flax's response to this Court on the timeliness issue, see Dkt. #5, his habeas petition was received by prison officials for mailing purposes on March 15, 1999, thirty-two (32) days later. The petition, filed with six (6) days left on the limitations period, therefore was timely.2 Moreover, the certified mail receipt attached to Flax's response shows that this Court received the petition on March 18, 1999, three days before the expiration of the one-year limitations period on March 21, 1999. See id.
In opposition to Flax's request for habeas relief, respondent again challenges the petition's timeliness. See Respondent's Habeas Brief ( ) at 9-10, Dkt. #12. Specifically, respondent complains that Flax's state court habeas petition did not toll the statute of limitations period pursuant to § 2244(d)(2) because its filing was "patently improper." Respondent argues that the state petition was not "properly filed" under 28 U.S.C. § 2244(d)(2) because the issues raised therein had been, or could have been, resolved on direct appeal and were inappropriate on an application for state court habeas relief. See id. at 10-11.
The Second Circuit has rejected the broad view of the term "properly filed" urged by respondent, noting its "reluctan[ce] to engraft a merit requirement into § 2244(d)(2)...
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