Smith v. McGinnis, Docket No. 99-2227

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtPER CURIAM
Citation208 F.3d 13
Parties(2nd Cir. 2000) KEVIN SMITH, Petitioner-Appellant, v. MICHAEL McGINNIS, Superintendent, Southport Correctional Facility, Respondent-Appellee
Docket NumberDocket No. 99-2227
Decision Date01 August 1999

Page 13

208 F.3d 13 (2nd Cir. 2000)
KEVIN SMITH, Petitioner-Appellant,
v.
MICHAEL McGINNIS, Superintendent, Southport Correctional Facility, Respondent-Appellee.
Docket No. 99-2227
August Term, 1999
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Argued: December 1, 1999
Decided: March 13, 2000

Appeal from judgment of the United States District Court for the Eastern District of New York (Dearie, Judge) dismissing appellant's petition for a writ of habeas corpus as untimely pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. 2244(d). Because the district court correctly applied the AEDPA's tolling provision and properly calculated the limitations period, we affirm.

Affirmed.

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ROBERT J. BOYLE, New York, NY, for Petitioner-Appellant.

ROSEANN B. MacKECHNIE, Assistant District Attorney, (Charles J. Hynes, Kings County District Attorney, Amy Appelbaum, Assistant District Attorney, on the brief) Brooklyn, NY, for Respondent-Appellee.

Before: POOLER, McLAUGHLIN, and SACK, Circuit Judges.

PER CURIAM:

Kevin Smith appeals from the March 26, 1999, judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, J.) dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2244(d).

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BACKGROUND

A Kings County jury convicted Smith in 1987 of second-degree murder and second- and third-degree criminal possession of a weapon. Smith pursued direct appeals, all of which were unsuccessful, and his conviction became final on July 2, 1991.1 In 1988 and 1992, Smith filed motions pursuant to N.Y. Crim. Proc. L. 440.10 to vacate his judgment of conviction, but state courts denied the relief. On May 1, 1997, Smith filed a petition for a writ of error coram nobis in state court. Smith served the petition on April 23, 1997. The coram nobis petition contained a claim regarding denial of effective assistance of appellate counsel. The state court denied the petition on November 17, 1997. Shortly thereafter, on February 12, 1998, Smith filed his federal habeas corpus petition raising the same ineffective assistance of appellate counsel claim.

By memorandum and order dated March 17, 1999, Judge Dearie dismissed the federal petition as untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Smith v. McGinnis, 49 F. Supp.2d 102 (E.D.N.Y. 1999). Judge Dearie rejected Smith's argument that the applicable one-year statute of limitations ran from the date the state court denied his coram nobis petition. See id. at 104-05. The district court also held that Smith "was not diligent in pursuing state remedies." Id. at 105. Judge Dearie granted Smith a certificate of appealability on May 28, 1999. This appeal presents questions of law that we review de novo.

DISCUSSION

I. Calculation of tolling period

Petitioner-appellant presents a question of first impression in this circuit, namely whether the one-year limitations period in the AEDPA began on the date he exhausted state collateral review or merely tolled while his state application was pending. Specifically, Smith contends that the ineffective assistance of appellate counsel claim presented in his state coram nobis and federal habeas corpus petitions did not accrue until the state court denied relief on November 17, 1997. Smith therefore argues that the one-year period in which he had to file his federal habeas petition began on November 17, 1997, and his February 12, 1998, federal petition was timely. The district court correctly rejected Smith's effort to reset the one-year limitations period. In affirming the decision of the district court, we align ourselves with our sister circuits that have addressed this issue.

In general, the AEDPA restricts the ability of prisoners to seek federal review of their state criminal convictions. Section 2244(d) created a new one-year statute of limitations in which state prisoners could file applications for a writ of habeas corpus. 28 U.S.C. 2244(d)(1). The one-year period most generally runs from the date on which the state criminal judgment became final. See 28 U.S.C. 2244(d)(1)(A). Prisoners like Smith, whose convictions became final prior to the AEDPA's effective date of April 24, 1996, have a one-year grace period in which to file their habeas corpus petitions, or until April 24, 1997. See Ross, 150 F.3d at 102-03. Section 2244 also has a tolling provision that applies to both the statute of limitations and the one-year grace period. See Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir.1999) (holding that "AEDPA's pending-state-petition tolling provision does apply to a petition challenging a pre-AEDPA conviction"), petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 24, 2000) (No. 99-1238). Section 2244(d)(2) states: "The

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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." 28 U.S.C. 2244(d)(2).

Smith's appeal concerns the proper application of the tolling provision and calculation of the one-year grace period. There is no dispute that because Smith's conviction became final in July 1991, before the effective date of the AEDPA, he obtained the benefit of the one-year grace period and had until April 24, 1997, to file a federal habeas corpus petition. There also is no dispute that his state coram nobis petition, if pending within that one-year grace period, would trigger Section 2244(d)(2)'s tolling allowance.2 For the purposes...

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993 practice notes
  • Brumfield v. Stinson, No. 98-CV-0233E(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • December 4, 2003
    ...(O'Connor, J., writing for the majority); Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000) (per curiam), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 9. In its Memorandum Decision, the Fourth Departmen......
  • Allstate Ins. v. Valley Physical Medicine & Rehab., No. 05-5934(DRH)(MLO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 21, 2007
    ...rights." Iavorski v. INS, 232 F.3d 124, 129 (2d Cir.2000) (internal citations and quotation marks omitted); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000). "The burden of demonstrating the appropriateness of equitable tolling ... lies with the plaintiff." Boos v. Runyon, 201 F.3d......
  • Chrysler v. Guiney, Case No. 07-CV-8474 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 2014
    ...while being careful to exclude any days that should not be counted against the period pursuant to § 2244(d)(2). See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ("We therefore hold that proper calculation of Section 2244(d)(2)'s tolling provision excludes time during whichPage 20proper......
  • Chime v. Peak Sec. Plus, Inc., No. 13–cv–470 (WFK)(VVP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 28, 2015
    ...required to warrant the "rare and exceptional" application of the equitable tolling doctrine. See id. at 80 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) ).Although the court recognizes (and wishes to avoid) the possible inequity resulting from a delay in deciding the certificat......
  • Request a trial to view additional results
985 cases
  • Brumfield v. Stinson, No. 98-CV-0233E(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • December 4, 2003
    ...(O'Connor, J., writing for the majority); Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000) (per curiam), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 9. In its Memorandum Decision, the Fourth Departmen......
  • Allstate Ins. v. Valley Physical Medicine & Rehab., No. 05-5934(DRH)(MLO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 21, 2007
    ...rights." Iavorski v. INS, 232 F.3d 124, 129 (2d Cir.2000) (internal citations and quotation marks omitted); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000). "The burden of demonstrating the appropriateness of equitable tolling ... lies with the plaintiff." Boos v. Runyon, 201 F.3d......
  • Chrysler v. Guiney, Case No. 07-CV-8474 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 2014
    ...while being careful to exclude any days that should not be counted against the period pursuant to § 2244(d)(2). See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ("We therefore hold that proper calculation of Section 2244(d)(2)'s tolling provision excludes time during whichPage 20proper......
  • Chime v. Peak Sec. Plus, Inc., No. 13–cv–470 (WFK)(VVP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 28, 2015
    ...required to warrant the "rare and exceptional" application of the equitable tolling doctrine. See id. at 80 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) ).Although the court recognizes (and wishes to avoid) the possible inequity resulting from a delay in deciding the certificat......
  • Request a trial to view additional results

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