BAITY v. MAZZUCA, (S.D.N.Y. 2001)

DENISE COTE, District Judge:

The instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was received by this Court's Pro Se Office on October 5, 2000. The Court concluded that the November 2, 1989, state court conviction challenged by petitioner had become final on June 10, 1992. Because petitioner did not submit the instant petition until September 23, 2000 — over one year after petitioner's conviction became final — by Order dated November 20, 2000, Chief Judge Mukasey explained the one year filing requirement and ordered petitioner to show cause why the one year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("ADEPA") should not bar his petition as untimely.

On January 29, 2001, the Court received petitioner's affirmation, explaining what had caused the delay in the filing of his petition. This action was thereafter reassigned to this Court. Because the Court concludes that petitioner should also be advised regarding the law concerning equitable tolling, the Court grants petitioner another opportunity to explain the cause of the delay.

DISCUSSION

Where, as here, the petitioner' s conviction becomes final prior to the April 24, 1996, effective date of AEDPA, AEDPA accords a grace period of one year after its effective date in which to file a Section 2254 petition. See Ross v. Artuz 150 F.3d 97, 102-03 (2d Cir. 1998). Accordingly, Baity had until April 24, 1997, to file his petition. Baity's petition, however, is dated September 23, 2000, over eight years after his state conviction became final and over three years after the expiration of AEDPA's grace period.

Baity's petition was received October 5, 2000.

Baity explained his delay based on a previous Section 2254 petition filed in June 1997. Specifically, Baity submitted a first Section 2254 petition on April 30, 1997, which was filed on May 6, 1997 as 97 Civ. 3299. Following procedure customary at that time, that application was dismissed without prejudice on June 27, 1997, by Judge Duffy, at Baity's request so that he might present his. ineffective assistance of counsel claim in state court. See Baity v. Greiner, No. 97 Civ. 3299 (KTD). Baity filed that claim in state court on June 25, 1998, and it was denied without a hearing on March 2, 1999.

It appears that Baity's 1997 petition may have been timely filed. Chief Judge Mukasey's Order indicates that it was submitted on April 30, 1997, six days after the time file under AEDPA's grace period had expired. In his January 29 affirmation, however, Baity attests that he put his petition in the Sing Sing Correctional Facility mail on April 14, 1997. He attaches as an exhibit to his affirmation a signed — but uncertified — proof of service dated April 14, 1997. Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) ("[A] prisoner appearing pro se satisfies the time limit for filing a notice of appeal if he delivers the notice to prison officials within the time specified."); see also Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997) (holding that the date of delivery to prison officials is the relevant date for purposes of determining whether a notice of appeal was filed before the enactment of AEDPA).

It is now practice when confronted with a "mixed petition" with both exhausted and unexhausted claims, as explained in Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001), to dismiss only the unexhausted claims and to either stay further proceedings on the unexhausted claims or to dismiss the petition in its entirety. A stay "will be preferable" in many cases, id., but is conditioned on the prompt filing of an action in state court to exhaust the claim and a prompt motion to reopen the federal case if the state court proceedings have not resolved the matter, id. at 381. In each case, a petitioner should act within 30 days. Id.

Baity argued in his January 29 affirmation that his October 2000 petition is not time-barred because his May 1997 petition was dismissed without prejudice. This argument, however, is insufficient as the one year grace period under AEDPA cannot be reset. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)

Only the time during which the state proceedings are pending is tolled, that is, from June 25, 1998 to March 2, 1999. If one finds that the June 27, 1997, dismissal without prejudice was in error and that the federal petition should have instead been stayed, and the petitioner given 30 days to bring the state action and 30 days to reactivate his federal petition, then Baity has still exceeded the time allotted to him. Specifically, Baity waited just under one year after the dismissal of his first petition to file ineffective assistance claim in state court and over 18 months after the state court denied his claim to file his second habeas petition. Further, even tolling the period, pursuant to 28 U.S.C. § 2254 (d)(2), during which Baity sought state court review of his ineffective assistance of counsel claim, and giving Baity 10 days "credit" for the fact that his 1997 habeas was signed on April 14, 1997 (10 days prior to the expiration of the AEDPA grace period), Baity's 2000 habeas petition was not timely filed. See Bennett v. Artuz, 199 F.3d 116, 119 (2dCir. 1999)

Baity's 2000 petition, however, may be subject to equitable tolling. The Second Circuit has held that equitable tolling of the one year limitations period for Section 2254 petitions

is available when "extraordinary circumstances" prevent a prisoner from filing a timely habeas petition. "In addition, the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll."

Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (citation omitted).

Petitioner's affidavit indicates that his delay in filing his October 2000 habeas petition was related to his understanding of the nature of the dismissal of his 1997 habeas petition but does not provide the Court with sufficient information to reach a decision about whether equitable tolling is appropriate here. Nor does petitioner's affidavit present sufficient information from which the Court can conclude that he acted with reasonable diligence throughout the period he seeks to toll.

Accordingly, petitioner is again directed to show cause by affirmation by October 8, 2001 why the expiration of the AEDPA grace period should not bar his 2000 habeas petition. No answer shall be required at this time and all further proceedings shall be stayed for 60 days from the date of this Order. If the petitioner fails to comply with this Order by October 8, 2001, the instant petition will be dismissed as time-barred.

SO ORDERED: