Jenkins v. Greene

• Decision Date: 23 December 2010
• Docket Number: Docket No. 09–3623–pr.
• Citation: 630 F.3d 298
• Parties: Taiwu JENKINS, Petitioner–Appellant,v.Gary GREENE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

630 F.3d 298

Taiwu JENKINS, Petitioner–Appellant,

v.Gary GREENE, Respondent–Appellee.

Docket No. 09–3623–pr.

United States Court of Appeals, Second Circuit.

Argued: April 15, 2010.Decided: Dec. 23, 2010.

Malvina Nathanson, New York, NY, for Petitioner–Appellant.Ashlyn Dannelly (Barbara D. Underwood, Solicitor General; Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY, for Respondent–Appellee.Before: B.D. PARKER, LIVINGSTON, and LYNCH, Circuit Judges.Judge PARKER dissents in a separate opinion.GERARD E. LYNCH, Circuit Judge:

Petitioner-appellant Taiwu Jenkins was sentenced in 2000 to two consecutive twenty-five year prison terms after a jury convicted him of two counts of assault in the first degree for slashing two victims' faces with a razor blade. In 2005, Jenkins filed a pro se motion in state court, seeking to vacate his judgment of conviction on the ground that his trial attorney had not accurately informed him of his sentence exposure, and that, had the attorney done so, Jenkins would have accepted a plea offer from the government rather than go to trial. After the state courts denied his motion, Jenkins filed a petition for writ of habeas corpus in the Southern District of New York, which was denied on the ground that his petition was untimely under 28 U.S.C. § 2244(d)(1). Jenkins now argues that state law required him to support his post-trial motion with an affidavit from the very attorney whose performance he was impugning, and that the attorney's failure to reply in a timely manner to his letters requesting such an affidavit constituted an extraordinary circumstance warranting equitable tolling of the limitations period. We conclude that Jenkins's argument fails, because New York law in fact permitted him to support his motion with either an affidavit or an explanation of why such an affidavit was unavailable. He therefore could have filed on time in spite of the attorney's dereliction and is not entitled to equitable tolling.

BACKGROUND

On August 10, 2000, Taiwu Jenkins was sentenced to two consecutive prison terms of twenty-five years, after being found guilty by a jury of two counts of assault in the first degree. The conviction arose from an incident in October 1998 in which Jenkins asked two people for change inside a grocery store in upper Manhattan. After the two refused, Jenkins argued with them, followed them outside the store, and slashed both victims' faces with a razor blade. Each needed approximately 150 stitches to close the resulting wounds.

Jenkins unsuccessfully appealed his conviction to the Appellate Division. See People v. Jenkins, 302 A.D.2d 247, 756 N.Y.S.2d 151 (1st Dep't), leave to appeal denied, 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 (2003). Jenkins subsequently filed a pro se petition for a writ of habeas corpus in the Southern District of New York, raising the same arguments against his conviction that he made in his direct appeal. The district court granted Jenkins's request for appointment of counsel. Jenkins's counsel then asked the district court to stay the petition while Jenkins exhausted state court remedies “relating to an ineffective assistance of counsel argument.” The district court dismissed the petition on May 13, 2005, with leave to reopen.

Two months later, in July 2005, Jenkins moved pro se in state court under N.Y. C.P.L. § 440.10 to vacate the judgment of conviction, claiming that his trial counsel, Oliver A. Smith, provided ineffective assistance by failing to tell him that if he were convicted after trial, he faced a maximum sentence of twenty-five years on each count of assault.¹ Jenkins asserted that Smith conveyed to him two plea offers—one of eight years, then one of seven years ²—and advised him that “the judge would probably give [him] 10 to 12 years” if he were convicted at trial. Jenkins maintained that, had Smith advised him as to his true sentencing exposure, he would have accepted one of the offered plea bargains.

Jenkins included with his motion two letters: one from Jenkins to Smith dated April 17, 2005, and a reply from Smith dated April 21, 2005. The April 17 letter repeatedly questions Smith why he failed to tell Jenkins that his total sentencing exposure was fifty years, and asks Smith for any assistance he could offer, but does not ask for an affidavit or other formal statement from Smith verifying that he had not told Jenkins of his full sentence exposure. Smith's response explains that he was surprised at the length of Jenkins's sentence. Smith wished Jenkins luck in his petition and ended the letter by stating “if there is anything that I can do to assist you in that regard, then please let me know.” ³

The state court denied Jenkins's motion on October 27, 2005. Jenkins sought leave to appeal from the denial of his motion, asserting that in May 2005 he had requested an affidavit from Smith attesting that he had not informed Jenkins of his sentence exposure, but that Smith had not responded to the request. The Appellate Division denied leave to appeal on June 6, 2006.

Almost three weeks later, Jenkins filed a second pro se habeas corpus petition in the Southern District of New York. He again raised his original challenges to his conviction, but added an ineffective assistance of counsel claim based on Smith's failure to inform him of his sentence exposure. In September, Jenkins wrote to the court that he had obtained new evidence with respect to his prior state-court motion, and requested that the federal habeas petition be held in abeyance until the state court had ruled on his renewed motion. The district court granted the stay, conditioned on Jenkins's return to the district court within thirty days of exhausting his state remedies.

Meanwhile, Jenkins moved in state court to renew his § 440 motion based on purported newly-discovered evidence. Jenkins attached two letters to Smith, dated May 10, 2005 and June 12, 2006, asking for an affidavit. Jenkins also attached an affirmation from Smith, dated July 21, 2006, attesting that he had not informed Jenkins that his exposure was fifty years. The state court denied Jenkins's motion to renew, and the Appellate Division again denied leave to appeal.

Twenty days after the Appellate Division ruling, Jenkins informed the district court that he had exhausted his ineffective assistance claim. In January 2008, Jenkins retained new counsel, who filed supplemental papers dropping all but the ineffective assistance claims and including a supplemental affidavit by Jenkins stating that he had not been informed that his total sentence exposure was fifty years. Counsel also attached an affirmation by Dominic J. Profaci, who briefly represented Jenkins before his indictment, stating that in his brief representation of Jenkins, he did not recall discussing sentence exposure with him.

After the government submitted a memorandum of law arguing that the ineffective assistance claim was untimely, Jenkins argued in reply that he was entitled to equitable tolling. Jenkins submitted further supplemental materials with his reply, including an affirmation by Jenkins's wife stating that Smith had told Jenkins his sentence exposure was around ten years and two letters from Jenkins to Smith dated July 25, 2003 and February 18, 2004, both requesting an affidavit.

The district court denied Jenkins's petition as untimely. See Jenkins v. Greene, 646 F.Supp.2d 615 (S.D.N.Y.2009). The court found that while Jenkins had until October 15, 2004 to file a petition raising his ineffective assistance of counsel claims, he did not file that claim until June 29, 2006. Id. at 620. The court also rejected Jenkins's argument that his ineffective assistance of counsel claim related back to his initial petition pursuant to Federal Rule of Civil Procedure 15(c)(1)(B), finding that the ineffective assistance claim did not arise from the same common core of operative facts as his claim in his initial petition that his sentence was excessive. Id. at 621. Finally, the district court rejected Jenkins's argument that he was entitled to equitable tolling, stating that the court was “not persuaded that the difficulty Jenkins had in obtaining the affidavit from [his trial counsel] constitutes an extraordinary circumstance.” Id. at 622.

DISCUSSION

I. Standard of Review

The Supreme Court recently confirmed that equitable tolling applies to the 1–year limitations period contained in 28 U.S.C. § 2244(d)(1). Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). However, tolling is appropriate “only if [the petitioner] shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way’ and prevented timely filing.” Id. at 2562 (emphasis added), quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Where a district court denies equitable tolling as a matter of law, we review the decision de novo. See Belot v. Burge, 490 F.3d 201, 206 (2d Cir.2007). If the district court denied equitable tolling on the basis of a factual finding, however, we review the factual finding for clear error. See id. If the district court declined to toll in the exercise of its discretion, we apply an abuse of discretion standard. See Saunders v. Senkowski, 587 F.3d 543, 549–50 (2d Cir.2009). We need not decide whether the district court's conclusion that Jenkins did not demonstrate extraordinary circumstances prevented him from making his claim is a legal or discretionary one. Because we agree with the district court's conclusion, we would affirm regardless of the standard of review applied.

II. Analysis

A federal habeas corpus petition must be filed within one year of the latest of four dates, in Jenkins's case October 15, 2003, when his time to seek a writ of certiorari to the Supreme Court expired.⁴ See 28...