Warren v. Garvin, PETITIONER-APPELLAN

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtAppeal from a decision of the United States District Court for the Southern District of New York, Patterson; Meskill
Citation219 F.3d 111
Parties(2nd Cir. 2000) DAVID WARREN,HENRY GARVIN, SUPT.CORRECTIONAL FACILITY,HANSLMAIER, RESPONDENT
Docket NumberV,RESPONDENT-APPELLE,MID-ORANGE,PETITIONER-APPELLAN,Docket No. 99-2616,ROBERT
Decision Date01 August 1999

Page 111

219 F.3d 111 (2nd Cir. 2000)
DAVID WARREN, PETITIONER-APPELLANT,
V.
HENRY GARVIN, SUPT. MID-ORANGE CORRECTIONAL FACILITY, RESPONDENT-APPELLEE,
ROBERT HANSLMAIER, RESPONDENT.
Docket No. 99-2616
August Term, 1999
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued May 2, 2000
July 11, 2000

Page 112

Malvina Nathanson, New York, Ny, for Appellant.

Mary C. Farrington, Assistant District Attorney, New York County, New York City (Robert M. Morgenthau, District Attorney, Morrie I. Kleinbart, Assistant District Attorney, New York County, New York City, of counsel), for Appellee.

Before: Meskill, Parker and Straub, Circuit Judges.

Appeal from a decision of the United States District Court for the Southern District of New York, Patterson, J., dismissing as untimely appellant's second petition for writ of habeas corpus.

Affirmed.

Meskill, Circuit Judge

Petitioner-appellant David Warren was convicted by a jury of murder in the second degree and two robbery counts in the Supreme Court of New York, New York County. His conviction was affirmed by the Appellate Division, and he was denied leave to appeal to the Court of Appeals of New York on September 19, 1990. His conviction became final on December 18, 1990, on the expiration of his time to petition for certiorari in the Supreme Court of the United States. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998).

Warren filed a timely petition for habeas corpus in the district court on April 21,

Page 113

1997. The petition was dismissed without prejudice on June 4, 1997 at Warren's request, to permit him to pursue collateral state relief on claims that had not been exhausted in the state courts (and were not raised in the petition). On February 22, 1999, one year, eight and a half months later, Warren filed a second petition for habeas relief.1 He had made no attempt to raise additional claims in state court, and the second petition was essentially identical to the first petition. The United States District Court for the Southern District of New York, Patterson, J., dismissed the petition as untimely. Warren now appeals.

We affirm. Because Warren's conviction became final before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), he had until April 24, 1997, i.e., one year after the effective date of AEDPA, to file a petition for writ of habeas corpus under 28 U.S.C. § 2254. See Ross, 150 F.3d at 103. The instant petition, filed February 22, 1999, is therefore untimely. Warren, however, argues that the petition is timely because (1) he is entitled to equitable tolling, (2) the petition "relates back" to the filing of the original petition, and (3) the petition should have been recharacterized as a Rule 60(b) motion for relief from judgment and granted. We briefly address each argument.

We have recently stated that the limitations period for filing habeas petitions may be equitably tolled. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). Equitable tolling is a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996); see also Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (considering whether there were "extraordinary or unusual circumstances that would justify equitable tolling"). In the context of a late-filed habeas petition, equitable tolling may sometimes offer an avenue for avoiding Suspension Clause issues in the "rare case" where strict application of the one year limitations period would create "an unreasonable burden." See Rodriguez v. Artuz, 990 F.Supp. 275, 282-83 (S.D.N.Y.) (Sotomayor, J.), aff'd on opinion below, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam).2

Equitable tolling is available when "extraordinary circumstances" prevent a prisoner from filing a timely habeas petition. Smith, 208 F.3d at 17. "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to...

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329 practice notes
  • Flores v. Southern Peru Copper Corp., Docket No. 02-9008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 29, 2003
    ...law, "one must allege intentional and egregious behavior causing long-term, widespread and severe harm." See, e.g., Warren v. Garvin, 219 F.3d 111, 113 n. 2 (2d Cir.2000) (declining to consider an issue addressed only at oral argument because "`[i]ssues not sufficiently argued in the briefs......
  • U.S. v. All Funds Dist, to or On Behalf, Weiss, Docket No. 01-6232.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 17, 2003
    ...basis to prevent inequity," Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 223 (2d Cir.2002) (quoting Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.2000)), even when the limitations period would otherwise have expired. "We have defined equitable tolling rules as those that allow a c......
  • Chao v. Russell P. Le Frois Builder, Inc., Docket No. 00-4057.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 10, 2002
    ...is a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000); see, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (equitable tolling app......
  • Marengo v. Conway, No. 04 Civ. 2207(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 28, 2004
    ...and is limited to cases where "`extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.2000) (citation omitted). Moreover, "the party seeking equitable tolling must have acted with reasonable diligence throughout th......
  • Request a trial to view additional results
327 cases
  • Flores v. Southern Peru Copper Corp., Docket No. 02-9008.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 29, 2003
    ...law, "one must allege intentional and egregious behavior causing long-term, widespread and severe harm." See, e.g., Warren v. Garvin, 219 F.3d 111, 113 n. 2 (2d Cir.2000) (declining to consider an issue addressed only at oral argument because "`[i]ssues not sufficiently argued in the briefs......
  • U.S. v. All Funds Dist, to or On Behalf, Weiss, Docket No. 01-6232.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 17, 2003
    ...basis to prevent inequity," Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 223 (2d Cir.2002) (quoting Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.2000)), even when the limitations period would otherwise have expired. "We have defined equitable tolling rules as those that allow a c......
  • Chao v. Russell P. Le Frois Builder, Inc., Docket No. 00-4057.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 10, 2002
    ...is a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000); see, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (equitable tolling app......
  • Marengo v. Conway, No. 04 Civ. 2207(VM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 28, 2004
    ...and is limited to cases where "`extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.2000) (citation omitted). Moreover, "the party seeking equitable tolling must have acted with reasonable diligence throughout th......
  • Request a trial to view additional results

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