JACK B. WEINSTEIN, Senior District Judge.
Petitioner, Steven Franklin, seeks a Writ of habeas corpus. See 28 U.S.C. § 2254. It is denied. A certificate of appealability is granted. This may be a rare case where dilatory conduct alone suggests mental problems sufficient to warrant tolling.
On September 19, 2006, a jury convicted petitioner of a felony, Assault in the First Degree. See Ex. 4 to Letter from Norman Trabulus, May 13, 2015, ECF No. 32 ("State Court Decision Denying Mot. to Vacate"). He was sentenced to eighteen years imprisonment. Id. at 1. To date, he has served some eight years.
The petition was filed on September 9, 2013. See Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus 1, ECF No. 1 ("Pet. 1"). The applicable one year statute of limitations had already barred the proceeding. See 28 U.S.C. § 2244(d)(1). Time began to run on February 2, 2010, the end of the ninety-day period for filing a certiorari petition in the United States Supreme Court from the decision of the New York Court of Appeals denying leave to appeal. See infra Part III.B; Sup. Ct. R. 13(1); 28 U.S.C. § 2244(d)(1)(A).
Petitioner had filed a motion in state court to vacate his conviction on September 22, 2010. See infra Part III.C. That stopped the statute of limitations clock with respect to an application for habeas relief. See 28 U.S.C. § 2244(d)(2). This filing occurred after approximately eight months of the statute of limitations period had passed. The motion was denied on February 25, 2011. See infra Part III.C.
An untimely motion for leave to appeal was denied by the Appellate Division on July 13, 2012. Id. No other state collateral attacks on petitioner's conviction have been pursued.
The habeas statute of limitations ran out, at the latest, on December 18, 2012. See N.Y. Crim. Pro. Law § 460.10(5)(a) (McKinney 2005); 28 U.S.C. § 2244(d)(1)(A). The instant habeas petition was filed approximately nine months after this date, on September 9, 2013. See Pet. 1.
No exceptional circumstances, mental or otherwise, prevented petitioner from more diligently pursuing his rights. In a letter dated May 13, 2015, petitioner's counsel conceded that his client does not meet the requirements for equitable tolling: "I am unable to make a case that petitioner's mental state interfered with his ability to file his habeas corpus petition for long enough to render the petition timely via equitable tolling of the statute of limitations, 28 U.S. C. § 2244(d) (1) and (2)." See Letter from Norman Trabulus 1, May 13, 2015, ECF No. 32 ("Trabulus Letter") (emphasis added).
The court allowed the petitioner to file a pro se brief by May 25, 2015. See Order, May 14, 2015, ECF No. 33. He did not do so. It also allowed him to testify in this court and to produce any evidence of a requisite mental state. See Hr'g Tr., May 26, 2015. He was unable to testify or produce any evidence supporting tolling. Id.
Having filed his petition too late, petitioner's request for habeas corpus relief is denied.
The facts are provided for context. They were not relied on in deciding the statute of limitations issue. They were drawn from the parties' briefs to the New York State Supreme Court, Appellate Division, Second Department, on petitioner's appeal of his conviction. See Br. of Resp., 2008 WL 8627328 (September 11, 2008), People v. Franklin, 883 N.Y.S.2d 95 (N.Y. App. Div. 2d Dep't 2009), ("Resp.'s Br."); Br. of Def.-Appellant, 2009 WL 9373843 (June 12, 2009), People v. Franklin, 883 N.Y.S.2d 95 (N.Y. App. Div. 2d Dep't 2009), ("Def.-Appellant's Br.").
On September 12, 2005, fifteen-year-old Jeffrey Saunders was shot in the stomach. See Def.-Appellant's Br. *5 The bullet perforated his liver and lodged close to his spine. Id. at *6.
At about 8:30 p.m., on September 12, 2005, petitioiner, age twenty-six, was talking on his cell phone while standing in front of 360 Dumont Avenue, part of the Tilden Houses in the Brownsville section of Brooklyn. See Def.-Appellant's Br. *2. He was standing with three other men, including Quintell Blount and Rasheem Williams. See Resp.'s Br. *7 As the victim passed by, petitioner accused him of bumping into him. Id. at *4 An argument followed. See Def-Appellant's Br. *3.
At the time, Towander Collins, Saunders's mother, was looking out the window of her twelfth-floor apartment on 360 Dumont Avenue. Id. at *3-4. Her son at risk, she came down. See Resp.'s Br. *4. Collins asked petitioner what the problem was. Id. He replied that he had been "disrespected" and would not tolerate it. Id.
The intervention by Collins having abated the dispute, petitioner and his friends walked away. Id. Collins and Saunders returned to their apartment. See Def.-Appellant's Br. *4
Within a few minutes, petitioner called a friend, Richard Thomas, who lived next door to Saunders's building. See Resp.'s Br. *6. Petitioner informed Thomas that he was "about to pop a little nigger." Id. Petitioner asked Thomas if he had a gun. Id. Thomas responded in the negative. Id.
Ten minutes later, petitioner went back to See Def.-Appellant's Br. *5. Locating Saunders, who was now standing outside the building talking with friends, petitioner pulled out the handgun. Id. Saunders at first attempted to wrest control of the weapon. Id. Then, releasing the gun, Saunders told petitioner: "Do what you got to do." Id. As the boy's friends screamed that he was "only fifteen," petitioner shot Saunders, turned and ran. Id.
Thomas, whom petitioner had called earlier to borrow a gun, heard the shot. Id. at *6. He saw petitioner running as Saunders lay bleeding. Id. Ten minutes later, Thomas saw petitioner standing across the street from where the shooting had taken place. Id. Petitioner warned Thomas to "mind [your] own business," but said, "[I] just popped the little nigger in the street." Id.
Later that evening, Thomas met with police detectives. See Resp.'s Br. *6. Based on the information Thomas provided, Detective Eric Parks created a "wanted" poster for petitioner, using his photograph from a previous application filled out for a non-driver's license identification card. See Def.-Appellant's Br. *7.
The police looked for petitioner at his 345 Dumont Avenue residence, but were unable to find him. Id. Two and a half months after the shooting, Police Officer Gabriel Dobles saw petitioner on the street and arrested him. See Resp.'s Br. *8. Placed in a lineup, he was positively identified as the shooter by Saunders, Collins, and Thomas. See Def.-Appellant's Br. *7
Petitioner was charged with five crimes: (1) Attempted Murder in the Second Degree, N.Y. Penal Law § 110 ("attempt to commit a crime"), § 125.25 ("murder in the second degree"); (2) Assault in the First Degree, N.Y. Penal Law § 120.10; (3) Assault in the Second Degree, N.Y. Penal Law § 120.05; (4) Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law, § 265.02; and (5) Endangering the Welfare of a Child, N.Y. Penal Law § 260.10. See State Court Decision Denying Mot. to Vacate 1.
A jury convicted him of Assault in the First Degree on September 19, 2006. Id. On November 13, 2006, he was sentenced to a term of eighteen years imprisonment. Id.
A timely direct appeal was taken to the Appellate Division. See People v. Franklin, 883 N.Y.S.2d 95, 95-96 (N.Y. App. Div. 2d Dep't 2009). Overturn was sought on the following grounds: (1) prosecutorial misconduct by painting petitioner as a violent person, vouching for witnesses, improper shifting of the burden of proof, and appealing to jurors' emotions; (2) ineffective assistance of trial counsel, who failed to raise proper objections to the prosecutor's conduct or seek curative instructions; (3) lack of probable cause to arrest; and (4) use of improper identification lineup procedures, including the use of fillers who appeared substantially different than petitioner. See Def-Appellant's Br. at *1731; People v. Franklin, 883 N.Y.S.2d at 96.
On July 7, 2009, the Appellate Division affirmed petitioner's conviction, finding no merit in any of petitioner's contentions. See Franklin, 883 N.Y.S.2d at 96. The entire brief opinion was:
Id. at 95-96 (citations omitted).
Four months after his appeal to the Appellate Division had been denied, on November 4, 2009, petitioner was denied leave to appeal to the New York Court of Appeals. People v. Franklin, 920 N.E.2d 995, 99 (N.Y. 2009). No explanation was provided by the court. Id.
No application for certiorari was made to the United States Supreme Court.
After a delay, on September 22, 2010, petitioner moved in New York State Supreme Court to vacate his conviction. See Ex. 2 to Trabulus Letter; N.Y. Crim. Pro. Law § 440.10 note (McKinney 2015) (Practice Commentaries) ("[N.Y. Crim. Pro. Law § 440.10] was designed to encompass all extant non-appellate post-judgment remedies and motions to challenge the validity of a judgment of conviction. . . ."). He claimed: (1) he was denied a fair trial by the prosecutor's conduct; (2) the photo array used in his arrest was improper; and (3) the trial court was prejudiced against him. See Ex. 2 to Trabulus Letter. On February 25, 2011, the motion was denied. See State Court Decision Denying Mot. to Vacate 4.
Over one year later, on March 31, 2012, petitioner filed an application in the Appellate Division, Second Department, for leave to appeal. See Ex. 5 at 1-5 to Trabulus Letter ("Leave to Appeal"). The application was opposed on the merits; statute of limitations arguments were not presented. See Id. at 6; Trabulus Letter 2. Without stating its reasons, the Appellate Division denied the motion on July 13, 2012. See Leave to Appeal 7.
On September 9, 2013, petitioner filed a pro se petition for a writ of habeas corpus. See Pet. 1. He alleged: (1) prosecutorial misconduct; (2) lack of probable cause to arrest; and (3) ineffective assistance of trial counsel. Id. at 6-9. The petition states that any untimeliness was due to petitioner's major depression, which included suicidal thoughts prompted by the death of his mother and grandmother during his incarceration. Id. at 14.
Counsel was appointed pursuant to the Criminal Justice Act ("CJA"). See 18 U.S.C. § 3006A; CJA 20: Appointment of Attorney Norman Trabulus for Steven Franklin, Sept. 25, 2013, ECF No. 6.
After having completed the time-consuming process necessary to obtain the multiple authorizations required to review petitioner's medical records, on May 13, 2015, petitioner's counsel wrote the court in anticipation of the May 26, 2015 hearing. See Trabulus Letter 3. The hearing had been scheduled to ascertain whether petitioner's mental state had an impact on his ability to timely file his writ of habeas corpus. See Id. at 1, 3. While evidentiary in nature, the petitioner impliedly waived any right to be present in person. He was present by telephone and was offered the right to consult privately with counsel. See Hr'g Tr. May 26, 2015. The letter stated the basis for counsel's conclusion that petitioner had not met the requirements for equitable tolling. See Trabulus Letter 1-4. Essentially, counsel conceded that no mental problem precluded a timely filing. Id. at 1. He explained:
Id. at 3-4 (emphasis added).
At the hearing on May 26, 2015, available medical and other relevant records that might have supported the habeas petition were introduced and considered by the court. See Hr'g Tr., May 26, 2015; Sealed Exs. 1-6, May 27, 2015, ECF No. 34 ("Sealed Exs."). Petitioner relied on his attorney's arguments and did not wish to be heard. See Hr'g Tr., May 26, 2015. No further investigation is warranted.
This proceeding is governed by section 2254 of title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA allows a federal court to grant a writ of habeas corpus on a claim that was "adjudicated on the merits" in state court only if the court concludes: (1) the adjudication of the claim in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"[A]n adjudication on the merits is a substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (citation and internal quotation marks omitted).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrived at a conclusion opposite to that reached by [the Supreme Court] on a question of law, or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000); Bell v. Cone, 535 U.S. 685, 694 (2002).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413; Bell, 535 U.S. at 694. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411; Duhs v. Capra, 13-CV-1056, 2015 WL 428321, at *14 (E.D.N.Y. Feb. 3, 2015).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003) (district court's habeas decision remanded for reconsideration in light of "the more general teachings" of applicable Supreme Court decision). Determination of factual issues made by a state court "shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.
Applications for writs of habeas corpus by individuals who are in custody pursuant to state court judgments are subject to AEDPA's one year statute of limitations. See 28 U.S.C. § 2244(d)(1). A petition for writ of habeas corpus must be filed within one year 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." See 28 U.S.C. § 2244(d)(1)(A). The United States Supreme Court has held that "[AEDPA] is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010).
The Court of Appeals for the Second Circuit has declared that equitable tolling of the statute of limitations applies only in "rare and exceptional circumstances." Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). "[A] litigant seeking equitable tolling must establish two elements: `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Bolarinwa v. Williams, 593 F.3d 226, 231 (2d. Cir. 2010) (quoting Lawrence v. Florida, 549 U.S. 327, 336 (2007) (holding equitable tolling for mental incapacity was not permitted where there was "no factual showing of mental incapacity")).
"[W]hether equitable tolling is warranted in a given situation is a highly case-specific inquiry." Id. at 232 (citation and internal quotation marks omitted). "The term `extraordinary' refers not to the uniqueness of a party's circumstance, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (finding that defendant was not required to show due diligence during the time outside the period he had equitably tolled due to hospitalization).
Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011) (internal citations omitted) (equitable tolling of habeas petition permitted where counsel failed to file petition despite petitioner's explicit instructions, and counsel informed petitioner that it would be filed before the deadline).
A petitioner must demonstrate details of mental illness supporting equitable tolling:
Bolarinwa, 593 F.3d at 232 (emphasis added) (citation and internal quotation marks omitted) (denial of habeas petition vacated and remanded to allow petitioner opportunity to present facts that would support a claim of equitable tolling due to mental illness).
Courts have permitted equitable tolling where the petitioner demonstrated that a mental illness or impairment prevented him from effectively contesting his detention. See, e.g., Forbess v. Franke, 749 F.3d 837, 841 (9th Cir. 2014) (equitable tolling of habeas petition permitted where petitioner suffered from delusions that would have completely prevented him from filing); Smith v. Berghuis, No. 10-CV-12562, 2011 WL 572420, at *34 (E.D. Mich. Feb. 15, 2011) (equitable tolling of habeas petition permitted where petitioner has proven history of mental illness during time to be tolled, and psychiatrist's report stated that petitioner's bipolar disorder and schizophrenia "significantly impair[] judgment, behavior, capacity to recognize reality, and the ability to cope with the ordinary demands of life"); Brayboy v. Vasbinder, No. 07-CV-11350, 2008 WL 373418, at *2 (E.D. Mich. Feb. 12, 2008) (equitable tolling of habeas petition permitted where petitioner demonstrated legal blindness, mental retardation, and illiteracy); Benn v. Grenier, 275 F.Supp.2d 371, 373-74 (E.D.N.Y. 2003) (equitable tolling of habeas petition permitted where petitioner showed medical documentation demonstrating he suffered from depression and schizophrenia with accompanying auditory hallucinations).
In order to establish that a habeas claim is supported by equitable tolling, a petitioner must point to evidence—preferably medical—that shows, in detail, mental incapacitation impeding the ability to pursue rights. See, e.g., Smith v. Annucci, No. 13-CV-00454, 2014 WL 2215765, at *3 (N.D.N.Y. May, 29, 2014) (equitable tolling not permitted where petitioner's mental health medical documentation "[does] not portray [petitioner] as being incapable of rational thought or lacking the wherewithal to ascertain what legal steps he needed to take"); Green v. Sheehan, No. 12-CV-0665, 2014 WL 338832, at *6 (W.D.N.Y. Jan. 30, 2014) (equitable tolling not permitted where medical records submitted did not show that mental condition was an "exceptional circumstance" and there was no particularized explanation for how petitioner's depression prevented him from pursuing his legal rights); Boyd v. United States, No. 13-CV-5572, 2013 WL 6081701, at *5 (E.D.N.Y. Nov. 19, 2013) (equitable tolling not permitted where medical documentation did not show petitioner was mentally incapacitated in way that would prevent filing of habeas petition); De Los Santos v. Ercole, No. 07-CV-7569, 2013 WL 1189474, at *6 (S.D.N.Y. Mar. 22, 2013) (equitable tolling not permitted where documentation about petitioner's mental illness and stays in prison psychiatric facilities did not demonstrate incapacitation).
Actual innocence as a basis for avoiding the one year statute of limitations has not been asserted. McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013).
At the request of prison staff, petitioner was screened for mental health issues by the Office of Mental Health at Clinton Correctional Facility on three occasions. See supra Part III.D. But he was never formally admitted to a mental facility or found mentally disabled. Id. This lack of a positive medical finding of incapacity, combined with the fact that from May 2010 onward petitioner was extolled as a diligent student, completing assignments both in class and out, negates a serious mental disability. Id.; see also supra Part IV.C.
No showing has been made of a mental illness or impairment that prevented petitioner from effectively contesting his detention. No rare, exceptional, or extraordinary circumstance has been presented to justify equitable tolling. The medical and other records demonstrating petitioner's attempts to be admitted to the Office of Mental Health as a patient do not support the claim that he was mentally disabled in preparing and filing any claim for post-judgment relief.
Petitioner's writ of habeas corpus is dismissed. Equitable tolling does not save the petition.
Granted is a certificate of appealability. Mental problems not supported by medical records may underlie the cause for petitioner's dilatory filings in state and federal courts.
SO ORDERED.
