Hizbullahankhamon v. Walker

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-2493
• Citation: 255 F.3d 65
• Parties: (2nd Cir. 2001) QABAIL HIZBULLAHANKHAMON, Petitioner-Appellant, v. HANS WALKER, The Superintendent of Auburn Correctional Facility, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 65

255 F.3d 65 (2nd Cir. 2001)

QABAIL HIZBULLAHANKHAMON, Petitioner-Appellant, v. HANS WALKER, The Superintendent of Auburn Correctional Facility, Respondent-Appellee.

Docket No. 00-2493

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 14, 2001

Decided: June 15, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Shira A. Sheindlin, Judge) dismissing Qabail Hizbullahankhamon's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1) on the ground that the petition was time-barred. Petitioner argues that the petition is not time-barred because, inter alia, the one-year limitations period of 28 U.S.C. § 2244(d)(2) should be tolled during the pendency of petitioner's applications to the New York Court of Appeals for leave to appeal the Appellate Division's orders denying his two coram nobis motions, and, under the doctrine of equitable tolling, during the periods he spent in solitary confinement allegedly without access to legal materials. Finding that petitioner's tolling arguments fail to bring the filing date of the petition within the one-year limitations period, we hold that the petition is time-barred.

Affirmed.

[Copyrighted Material Omitted] PERRY S. REICH, Shapiro & Reich, Lindenhurst, N.Y., for Petitioner-Appellant,

DAVID A. SHIMKIN, Assistant District Attorney, Bronx, N.Y. (Robert T. Johnson, District Attorney, Joseph N. Ferdenzi, Assistant District Attorney, Bronx County, Bronx, N.Y., on the brief), for Respondent-Appellee.

Before: SOTOMAYOR and KATZMANN, Circuit Judges, and CHIN, District Judge.^*

SOTOMAYOR, Circuit Judge:

Petitioner-appellant Qabail Hizbullahankhamon appeals from a judgment of the United States District Court for the Southern District of New York (Shira A. Sheindlin, Judge) dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1) on the ground that the petition was time-barred pursuant to 28 U.S.C. § 2244(d)(1). Hizbullahankhamon v. Walker, 105 F. Supp. 2d 339 (S.D.N.Y. 2000). Petitioner argues that his petition was timely filed because the one-year limitations period for filing habeas petitions should be tolled (i) during the pendency of his applications to the New York Court of Appeals for leave to appeal the Appellate Division's orders denying his two motions for a writ of error coram nobis, (ii) during the 30-day periods in which petitioner could have moved in the Appellate Division for reargument of the denial of his two coram nobis motions, and (iii) during two periods he spent in solitary confinement allegedly without access to legal materials. We hold that, because petitioner's coram nobis motions ceased to be pending on the dates they were denied by the Appellate Division, the one-year limitations period was not tolled during the pendency of his applications for leave to appeal these denials to the New York Court of Appeals. We also hold that the one-year limitations period should not be equitably tolled during the initial period petitioner spent in solitary confinement because petitioner failed to exercise reasonable diligence upon his return to standard confinement where he had access to legal materials. Absent the tolling to which petitioner would be entitled were these two arguments successful, the petition was filed beyond the one-year limitations period. Therefore, we do not reach petitioner's remaining contentions and affirm the district court's judgment dismissing the petition as untimely.

BACKGROUND

On August 8, 1989, petitioner Qabail Hizbullahankhamon, then known as Kirk Johnson, was convicted in Bronx County Supreme Court, following a jury trial, of murder in the second degree (three counts) and attempted murder in the second degree (two counts). Petitioner was sentenced to consecutive indeterminate terms of imprisonment of 25 years to life on each murder count and eight and one-third to 25 years on each attempted murder count.

On direct appeal, the Appellate Division, First Department, unanimously affirmed the conviction, People v. Johnson, 181 A.D.2d 509 (1st Dep't 1992). The Court of Appeals denied petitioner's application for leave to appeal, People v. Johnson, 80 N.Y.2d 833 (1992), and, on December 10, 1992, denied his application for reconsideration, People v. Johnson, 81 N.Y.2d 763 (1992). Petitioner's conviction thus became final on March 10, 1993, the date on which the time to petition for certiorari to the Supreme Court of the United States expired. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998).

On January 28, 1997, petitioner filed the first of two motions for a writ of error coram nobis in the Appellate Division, alleging ineffective assistance of appellate counsel. The Appellate Division denied this first motion on August 21, 1997, People v. Johnson, 242 A.D.2d 408 (1st Dep't 1997). The Court of Appeals dismissed petitioner's application for leave to appeal this denial on October 10, 1997, People v. Hizbullahankhamon, 90 N.Y.2d 1012 (1997), and denied his application for reconsideration on November 24, 1997, People v. Hizbullahankhamon, 91 N.Y.2d 834 (1997). Petitioner filed his second coram nobis motion on June 17, 1998. The Appellate Division denied this second motion on February 18, 1999, People v. Johnson, 258 A.D.2d 977 (1st Dep't 1999), and the Court of Appeals dismissed his application for leave to appeal this denial on April 8, 1999, People v. Hizbullahankhamon, 93 N.Y.2d 899 (1999).

Prior to filing his first coram nobis motion, petitioner was placed in solitary confinement from November 15, 1995 to May 16, 1996. On November 20, 1997, approximately three months after the Appellate Division denied petitioner's first coram nobis motion, petitioner was again placed in solitary confinement, where he remained until June 2, 1998. Petitioner alleges that, during these periods in solitary confinement, he was denied access to his legal files and to the law library.

Petitioner filed his federal habeas corpus petition on April 15, 1999. In an Opinion and Order filed August 1, 2000, the district court granted respondent's motion to dismiss the petition on the ground that it was time-barred under 28 U.S.C. § 2244(d)(1), as interpreted by Ross, and granted a certificate of appealability. Hizbullahankhamon v. Walker, 105 F. Supp. 2d 339 (S.D.N.Y. 2000). Petitioner timely appealed.

DISCUSSION

We review a district court's ruling on a petition for a writ of habeas corpus de novo. English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998).

Under Title I of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104 132, 110 Stat. 1214, 1217 (codified at 28 U.S.C. § 2244), a prisoner in state custody has one year after the date his conviction became final in which to file a habeas petition. 28 U.S.C. § 2244(d)(1). A prisoner whose conviction became final prior to the AEDPA's effective date of April 24, 1996, has a one-year grace period after that date in which to file a first habeas petition. Ross, 150 F.3d at 102-03. However, "[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" this one-year period. 28 U.S.C. § 2244(d)(2); see also Bennett v. Artuz, 199 F.3d 116, 118-19 (2d Cir. 1999) (holding that Section 2244(d)(2) is applicable to the one-year grace period), aff'd, 121 S. Ct. 361 (2000).

Because petitioner's conviction became final prior to April 24, 1996, he had until April 24, 1997, to file a first habeas petition, plus any time tolled under Section 2244(d)(2) or the doctrine of equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (per curiam), cert. denied, 121 S. Ct. 104 (2000); Ross, 150 F.3d at 102-03. As noted, petitioner filed his petition on April 15, 1999, a total of 1,086 days after April 24, 1996. The parties agree that, pursuant to Section 2244(d)(2), the limitations period was tolled (1) between the filing of the first coram nobis motion on January 28, 1997, and the Appellate Division's denial of the motion on August 21, 1997 (that is, 205 days) and (2) between the filing of the second coram nobis motion on June 17, 1998, and the Appellate Division's denial of the motion on February 18, 1999 (that is, 246 days). Subtracting this time from the 1,086-day total reduces the elapsed time to 635 days.¹

Petitioner advances three additional grounds for tolling the limitations period. First, petitioner contends, as he did below, that, pursuant to Section 2244(d)(2), the limitations period was tolled during the pendency of each of his two applications to the Court of Appeals for leave to appeal the Appellate Division's orders denying his two coram nobis motions. Second, petitioner contends, for the first time on appeal, that the limitations period was tolled during the 30-day periods in which he could have moved in the Appellate Division for reargument of the denials of his coram nobis motions. Third, petitioner argues, as he did below, that, under the doctrine of equitable tolling, the limitations period should be tolled one day for each day he spent in solitary confinement without access to legal materials. We discuss these tolling arguments seriatim.

I. Tolling During Applications For Leave to Appeal Denial of the Coram Nobis Motions

Petitioner contends that, under Section 2244(d)(2), the one-year limitations period was tolled (1) during the 95-day interval between the Appellate Division's order denying his first coram nobis motion on August 21, 1997, and the New York Court of Appeals' denial of his motion for reconsideration of its dismissal of his application for leave to appeal that order on November 24, 1997, and (2) during the 45-day interval between the Appellate Division's order denying his second coram nobis motion on February 22, 1999, and the Court of Appeals' dismissal of his application for leave to...