Stokes v. Miller, 00 Civ. 0806(RMB)(AJP).

• Decision Date: 21 July 2000
• Docket Number: No. 00 Civ. 0806(RMB)(AJP).,00 Civ. 0806(RMB)(AJP).
• Parties: John STOKES, Petitioner, v. David MILLER, Respondent.
• Court: U.S. District Court — Southern District of New York

216 F.Supp.2d 169

John STOKES, Petitioner, v. David MILLER, Respondent.

No. 00 Civ. 0806(RMB)(AJP).

United States District Court, S.D. New York.

July 21, 2000.

John Stokes, Eastern Correctional Facility, Napanoch, NY, Pro Se.

ORDER

BERMAN, District Judge.

In a habeas corpus petition dated August 17, 1999 ("Petition"),¹ John Stokes ("Stokes" or "Petitioner"), appearing pro se, challenges his 1992 conviction in New York State Supreme Court, Bronx County, for second degree felony murder (and related lesser charges) and his sentence of twenty-five years to life imprisonment. The Petition alleges: (1) that Petitioner should not have been convicted in New York since no element of the underlying robbery took place in New York; (2) Petitioner's unauthorized use of a vehicle conviction should not stand for the same reason; (3) Petitioner was deprived of a fair trial by the exclusion of certain exculpatory evidence; and (4) the underlying Indictment of Petitioner was defective because it incorrectly alleged that the robbery took place in the Bronx.

On May 18, 2000, U.S. Magistrate Judge Andrew J. Peck, to whom the matter had been referred, issued a Report and Recommendation (the "Report"), recommending that Mr. Stokes' Petition be denied. Judge Peck determined that the Petition was time-barred, i.e., that Petitioner failed to file his Petition within 12 months of the date his judgment (and conviction) became final, which Magistrate Peck determined was January 8, 1997, under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1)-(2).² On July 20, 2000, Petitioner filed written objections to the Report. For the reasons set forth below, this Court adopts the Report in its entirety.

I. Background

Stokes was convicted in Supreme Court, Bronx County, of second degree felony murder (and related lesser charges) and on January 24, 1992. He was sentenced to concurrent prison terms, the longest of which was twenty-five years to life imprisonment. See People v. Stokes, 215 A.D.2d 225, 626 N.Y.S.2d 161 (1st Dep't 1995) aff'd, 88 N.Y.2d 618, 648 N.Y.S.2d 863, 671 N.E.2d 1260 (1996).

The Appellate Division, First Department affirmed Stokes' conviction on May 11, 1995. People v. Stokes, 215 A.D.2d 225, 626 N.Y.S.2d 161 (1st Dep't 1995). Stokes sought leave to appeal, and on October 10.1996, the New York State Court of Appeals affirmed Stokes' conviction (and that of his accomplice, Orlando Nieves). People v. Stokes, 88 N.Y.2d 618, 648 N.Y.S.2d 863, 671 N.E.2d 1260 (1996). The Court of Appeals held that, although the underlying robbery occurred in Connecticut, since the resulting death (of a pedestrian hit by Stokes and Nieves' car during their attempt to escape) occurred in New York, Stokes and Nieves could be prosecuted in New York for felony murder. Id. ("At issue in these related appeals is the novel question whether New York has jurisdiction to prosecute a defendant for felony murder when the homicide takes place here but the underlying felony is committed in a neighboring State. We answer that question in the affirmative.").

On August 25, 1997, Stokes filed a motion before the state trial court to vacate his conviction pursuant to N.Y.Crim. Proc. Law ("CPL") § 440.10. The motion was denied on May 8, 1998, and the First Department denied leave to appeal on February 10, 1999. See Pet. ¶ 11(a)-(b).

II. Standard of Review

This Court may adopt those portions of the Report to which no objections have been made and which are not facially erroneous. See, e.g., Letizia v. Walker, 1998 WL 567840, at *1 (W.D.N.Y. Aug.27, 1998); Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). The Court conducts a de novo review of those portions of the Report to which objections have been made. See, e.g., Letizia, 1998 WL 567840 at *1; Pizarro, 776 F.Supp. at 817. Once objections are received, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See, e.g., DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y.1988). Where, as here, the petitioner is pro se, "leniency is generally accorded...." Bey v. Human Resources Administration, 1999 WL 31122 at *2 (E.D.N.Y. January 12, 1999).

III. Analysis

Judge Peck correctly determined that Petitioner's conviction became final on January 8, 1997, i.e., ninety days after the New York Court of Appeals' October 10, 1996, decision affirming his conviction, "when his time to seek direct review in the United States Supreme Court by writ of certiorari expired." Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998); see also 28 U.S.C. § 2244(d)(1)(A) ("The limitation period shall run from the latest of ... the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"). Judge Peck also correctly determined that the Petition is time-barred.

AEDPA imposes a one-year period of limitation (from the date when the judgment becomes final by the exhaustion of direct review, or the expiration of time to seek such review) on habeas corpus applications filed by persons in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1)(A). AEDPA also specifically addresses the question of tolling. It states:

(d)(1) A 1-year period of limitation shall apply to an application for a write of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.;

...

(2) The 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)(1)(A)-(2).³

As Judge Peck correctly noted, Stokes brought his CPL § 440.10 application (to the trial court) on August 25, 1997. The trial court denied the application on May 5, 1998; and the First Department denied leave to appeal on February 10, 1999. Even assuming, arguendo, that Petitioner is entitled to a 534 day toll (i.e., while the CPL § 440.10 motion was pending from August 25, 1997 to February 10, 1999), the Petition is, nevertheless, late by 52 days.⁴

IV. Petitioner's Objection

In his objections, Petitioner "concedes [that] the accurate total of 417 non-tolled days had passed prior to the submission of [the] current federal habeas petition. And that it exceeds the 365 days of the one year AEDPA statute of limitations." See Objections to Magistrate Peck's Report, dated July 14, 2000 (emphasis added). Petitioner contends, however, that "entry to the [prison] law library is a nightmare." Id., and that constitutes "extraordinary and/or exceptional circumstances warranting equitable tolling of [the] limitations period under [AEDPA] for filing [the] petition." Id. The Court disagrees.

The Court of Appeals for the Second Circuit recently held that to obtain the benefit of equitable tolling, a petitioner "must show that extraordinary circumstances prevented him from filing his petition on time [and] must have acted with reasonable diligence throughout the period he seeks to toll." Id. (citations omitted); Burgos v. Greiner, 1999 WL 551229 at *3 (E.D.N.Y. June 21, 1999) (equitable tolling can be applied to AEDPA time period only if "party was prevented in some extraordinary way from exercising his rights"). No such showing has been made here. Courts should "take seriously Congress's desire to accelerate the federal habeas process, and will only authorize extensions when this high hurdle is surmounted." Torres v. Miller, 1999 WL 714349 *6 (S.D.N.Y. August 27, 1999) (quoting Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th Cir.1997)).

"Problems such as insufficiency of legal assistance are not `extraordinary' such that they warrant equitable tolling of the AEDPA limitation period. Indeed, to permit equitable tolling in all cases involving such problems would frustrate the statute's objectives because many inmates could make the same claims." Martinez v. Kuhlmann, 2000 WL 622626 at *4 (S.D.N.Y. May 15, 2000) (quoting Silvestre v. United States, 55 F.Supp.2d 266, 268 (S.D.N.Y. 1999)); Armand v. Strack, 1999 WL 167720 at *4 (E.D.N.Y. Feb.19, 1999) ("petitioner's alleged inability to receive `full assistance' from the [prison] library staff" did not represent "`extraordinary' or `rare and exceptional' circumstances, making it `impossible to file his petition'"); Fennell v. Artuz, 14 F.Supp.2d 374, 377 (S.D.N.Y.1998) (equitable tolling based on excuses common among prisoners, such as lack of education and lack of familiarity with legal research, would undermine the AEDPA statute of limitations).

V. Order

For the foregoing reasons, the Court incorporates the Report in its entirety and, for the reasons stated therein and herein, finds that the Petition is time-barred. The Clerk is respectfully requested to enter an order dismissing the Petition.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

To the Honorable Richard M. Berman, United States District Judge:

Petitioner John Stokes seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his conviction in Supreme Court, Bronx County, of second degree felony murder (and related lesser charges) and sentence of twenty-five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Stokes' present federal habeas petition is dated August 17, 1999, was mailed in an envelope postmarked September 7, 1999, and was received by the Court's Pro Se office on September 9, 1999. (Pet. at 2, 7 & envelope.)

For the reasons set forth below, Stokes' petition should be dismissed as barred by the one-year statute of limitations imposed by the Antiterrorism...