Smaldone v. Senkowski

• Decision Date: 01 August 2001
• Docket Number: RESPONDENT-APPELLEE,Docket No. 00-2519,PETITIONER-APPELLANT
• Citation: 273 F.3d 133
• Parties: (2nd Cir. 2001) FRANK SMALDONE,v. DANIEL SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY,
• Court: U.S. Court of Appeals — Second Circuit

Page 133

273 F.3d 133 (2nd Cir. 2001)

FRANK SMALDONE, PETITIONER-APPELLANT v. DANIEL SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, RESPONDENT-APPELLEE

Docket No. 00-2519

August Term, 2001

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 26, 2001

Decided: November 16, 2001

Petitioner-Appellant Frank Smaldone appeals from the denial of his petition for a writ of habeas corpus on August 3, 2000 in the United States District Court for the Eastern District of New York (John Gleeson, judge). The Court reviews Smaldone's appeal under a certificate of appealability granted by the district court on September 20, 2000 and expanded by this Court on March 23, 2001.

AFFIRMED.

[Copyrighted Material Omitted] Melvin L. Wulf, Beldock, Levine & Hoffman, New York, New York, for Appellant.

Donna Aldea, Assistant District Attorney, Queens County, Kew Gardens, Ny, (Richard A. Brown, District Attorney, Queens County, John M. Castellano, Assistant District Attorney, of counsel), for Appellee.

Before: Feinberg, Mclaughlin, and F.I. Parker, Circuit Judges.

Per Curiam

Petitioner-Appellant Frank Smaldone appeals from the denial of his petition for a writ of habeas corpus on August 3, 2000 in the United States District Court for the Eastern District of New York (John Gleeson, Judge), under a certificate of appealability granted by the district court on September 20, 2000 and expanded by this Court on March 23, 2001. For substantially the same reasons set forth by the district court, we AFFIRM.

Smaldone was convicted for murder in the second degree and arson in the third degree by a New York state court in 1992. Smaldone v. Senkowski, No. 99-CV-3318 JG, 2000 WL 1134391, at *1 (E.D.N.Y. Aug. 3, 2000). After his conviction was affirmed on direct appeal, Smaldone began to pursue collateral relief in the state courts. Id. at *1. While his motion under New York Criminal Procedure Law § 440 was pending in the state court system, Smaldone filed pro se for federal habeas relief. The United States District Court for the Eastern District of New York dismissed his petition without prejudice for lack of exhaustion on September 19, 1997. Id. The court included in its dismissal order a warning about the one-year statute of limitations for filing of federal habeas petitions under the 1996 Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). After pursuing the §440 motion and a coram nobis petition in the state courts, Smaldone attempted to return to the federal system on June 11, 1999. Id. at *3. The district court dismissed the petition as untimely under the AEDPA's implied one-year grace period, and found no basis for "equitable tolling" of the limitation period. Id. at *5-*6.

This Court has jurisdiction to consider Smaldone's appeal under a certificate of appealability granted by the district court on the issue of "whether [Smaldone's attorney's] mistaken belief that AEDPA's one-year limitation period is re-set (rather than merely tolled) by pending state petitions for post-conviction review should result in equitable tolling of the limitation period," and amended by this Court to include a second issue, "whether the ninety-day period available for seeking a writ of certiorari from the United States Supreme Court upon exhausting state appellate procedures governing state post-conviction or other collateral review, is included in the time tolled under 28 U.S.C. § 2244(d)(2)." See 28 U.S.C. § 2253. Although in answering the certified questions we affirm the district court's denial of Smaldone's petition for substantially the same reasons set forth by the district court, we write a brief opinion to express our intent to join our sister circuits, though on a somewhat narrower basis, in rejecting the inclusion of the ninety-day period during which a petitioner could have filed a certiorari petition after the denial of his state post-conviction petition under the tolling provision of 28 U.S.C. §2244(d)(2).

A. Tolling for Supreme Court Review

The AEDPA imposed for the first time a one-year statute of limitations for the filing of federal habeas petitions. 28 U.S. C. §2244(d)(1).¹ To support the federal interest in comity and finality of state court judgments, see Duncan v. Walker, 121 S. Ct. 2120, 2128 (2001), AEDPA added to this time constraint a tolling provision allowing courts to suspend the progress of the statute of limitations for "[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." 28 U.S.C. § 2244(d)(2). Because petitioner raises a question of law as to whether this provision may include the ninety-day period for pursuit of certiorari on state collateral motions, we review the district court's dismissal of Smaldone's habeas petition de novo. See Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).

Other circuits examining this issue have found, with some variation in the breadth of their holdings, that the statute of limitations should not toll during the period for seeking certiorari. See Stokes v. Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001); Crawley v. Catoe, 257 F.3d 395, 399-401 (4th Cir. 2001); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir. 2001); Isham v. Randle, 226 F.3d 691, 695 (6th Cir. 2001); Gutierrez v. Schomig, 233 F.3d 490, 491-92 (7th Cir. 2000) (limiting the holding to prevent tolling during the ninety-day period in cases in which a petition is not actually filed); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999).

To determine whether to join our sister circuits in rejecting tolling for the certiorari period, we will consider the various reasons for their decisions. "We begin, as always, with the language of the statute." Duncan, 121 S. Ct. at 2124.

As several other circuits have noted, the timing-related language in § 2244(d)(2) differs from that in § 2244(d)(1)(A). Specifically, § 2244(d)(1)(A), describing the point at which the statute of limitations should begin to run, notes that the key date is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). Notably, § 2244(d)(2) does not mention a time period for the pursuit of additional review. 28 U.S.C. § 2244(d)(2). As the Supreme Court said in Duncan, "[i]t is well settled that `where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Duncan, 121 S. Ct. at 2125 (quoting Bates v. United States, 522 U.S. 23, 29-30 (1997)). Thus, the Third, Fourth, Fifth, Sixth, Eighth, Tenth and Eleventh Circuits have concluded that this omission demonstrates Congress's intent not to include a period for certiorari petitioning under the tolling provision. See Stokes, 247 F.3d at 542; Crawley, 257 F.3d at 400; Snow, 238 F.3d at 1036; Isham, 226 F.3d at 695; Coates, 221 F.3d at 1227; Ott, 192 F.3d at 513; Rhine, 182 F.3d at 1155.

Several circuits have also stressed the importance of the modification of "post-conviction or other collateral review" by the word "State." While the Supreme Court held only that the inclusion of "State" in the §2244(d)(2) phrase prevented tolling of the limitations period during consideration of federal habeas petitions, these circuits have further concluded that the restriction to "State" post-collateral and other forms of review excludes tolling during petition for Supreme Court review of state post-conviction claims. See Stokes, 247 F.3d at 542; Crawley, 257 F.3d at 400; Isham, 226 F.3d 695; Rhine, 182 F.3d at 1156. In the words of the Tenth Circuit, "[a] petition for writ of certiorari to the United States Supreme Court is simply not an application for state review of any kind; it is neither an application for state post-conviction review nor an application for other state collateral review." Rhine, 182 F.3d at 1156.

Several circuits further note that by excluding the time period for certiorari petitions after post-conviction proceedings from the tolling provision, Congress mirrored the exhaustion requirements for submission of a federal habeas claim. See Snow, 238 F.3d at 1036; Isham, 226 F.3d at 695; Ott, 192 F.3d at 513. Before a federal district court may consider a petitioner's habeas claims, the petitioner must exhaust in the state courts any constitutional claims he wishes to raise in the federal forum. See Zarvela v. Artuz, 254 F.3d 374, 378 (2d Cir. 2001). This exhaustion requirement does not, however, require petitioner to seek certiorari from the Supreme Court on the basis of the state court's denial of post-conviction relief before pursuing a federal remedy. See Snow, 238 F.3d at 1036. Thus, these circuits infer that if the petitioner is not required to turn to the Supreme Court before qualifying for federal habeas review - review that could potentially undo the state court's verdict - the tolling period does not need to include the period required to seek such review in order to protect the finality of state judgments. Noting that a petitioner could file for federal habeas during this period, they conclude that it is "unlikely" Congress intended to allow such tolling, when its stated goals included "curb[ing] the protracted nature of habeas corpus proceedings." Isham, 226 F.3d at 695.

We find it unnecessary, however, to resolve these issues on the facts before us. We reach this conclusion because we find the language of the tolling provision to be explicit for cases like this one, where no certiorari petition was filed. Section 2244(d)(2) expressly provides that the limitations period is tolled during the time that ...