JANET BOND ARTERTON, District Judge.
On November 3, 2014, Petitioner David Csanadi sought leave to file a petition under 28 U.S.C. § 2255 after the expiration of the one-year period allotted to do so by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The Court denied Mr. Csanadi's motion on February 24, 2015 without prejudice to renew, on the grounds that the Court lacked authority to grant it, as Mr. Csanadi had not filed any § 2255 petition. Seven months later, on October 5, 2015, Mr. Csanadi filed a § 2255 petition [Doc. # 2] to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody as well as a second motion [Doc. # 1] for leave to file a § 2255 petition out of time. For the following reasons, Mr. Csanadi's motions are denied.
On March 31, 2011, the Newtown Police Department obtained two Connecticut Superior Court search warrants to seize items from Petitioner's residence. The police executed those warrants on April 8, 2011, at which time they seized a computer, a collection of DVDs, several 8mm videotapes, and other items. The computer contained 7,500 images and 27 videos of child pornography. Mr. Csanadi was arrested on state charges of sexual assault, illegal sexual contact, and possession of child pornography.
Thereafter, on December 13, 2011, Mr. Csanadi was indicted by a federal grand jury on three counts of production of child pornography and one count of possession of child pornography. See United States v. Csanadi, No. 3:11cr239 (JBA) (D. Conn.), Indictment [Doc. # 1]. On February 2, 2012, Mr. Csanadi moved to suppress "all DVDs, VHS tapes and 8mm videotapes seized" from his residence, "on the grounds that the officers exceeded the scope of the search and seizure authorized by the warrant and there was no probable cause to support either the issuance of a warrant for the seized items or for their seizure without a warrant." Id., Mot. to Suppress [Doc. # 15] at 1, 2. That motion was denied on August 31, 2012. See id., Ruling on Def.'s Mot. to Suppress Evidence [Doc. # 39].
On November 2, 2012, Mr. Csanadi pled guilty to production of child pornography in violation of 18 U.S.C. § 2251. See id., Plea Agmt. [Doc. # 44]. The Plea Agreement specifies that "the defendant reserves his right to appeal from the judgment of conviction to review this Court's ruling filed August 31, 2012 (Document No. 39), denying his motion to suppress evidence (Document No. 15). In addition, the parties reserve their respective rights to appeal and to oppose each other's appeal of the sentence imposed as permitted by 18 U.S.C. § 3742." Id. at 6.
Mr. Csanadi pled guilty in Connecticut Superior Court to sexual assault in the first degree, illegal sexual contact, and possession of child pornography on January 22, 2013. (Thomas Decl., Ex. A to Gov't's Opp'n [Doc. # 12] ¶ 5.) He received a sentence of 20 years' imprisonment, which was stayed until the imposition of his federal sentence, so that he could serve his time in federal custody. (Id.) Thereafter, on March 19, 2013, this Court sentenced Petitioner to 240 months' imprisonment and 180 months' supervised release. Judgment entered on April 2, 2013. Because Mr. Csanadi did not appeal his conviction, judgment became final on April 16, 2013.
Mr. Csanadi began serving his sentence on April 12, 2013 at MDC Brooklyn (New York). (Inmate History, Ex. B to Mot. for Leave to File 2255 Out of Time at 3.) On May 9, 2013, he was moved to FCI Ray Brook (New York). (Id.) About a week later, on May 17, 2013, he was moved into the Special Housing Unit ("SHU") at FCI Ray Brook for his protection. (Id.) He spent the majority of the next eight months there. (Id.) On January 24, 2014, Petitioner was transferred to FCI Butner (North Carolina) — by way of Canaan (Pennsylvania), Philadelphia (Pennsylvania), and Petersburg (Virginia) — where he arrived on February 18, 2014. (Id. at 2.)
Mr. Csanadi represents that on February 24, 2014, he called his attorney, Paul Thomas, to inquire about the status of the appeal he claims to have believed Attorney Thomas had filed. (Mot. for Leave to File 2255 Out of Time at 2.) At that time, he learned that Attorney Thomas had not in fact filed an appeal on his behalf. (Id.) Shortly thereafter, he "heard about a § 2255 for the first time from his cellmate." (Id.)
Petitioner asserts that on or about March 5, 2014, his father called Attorney Thomas to obtain his legal papers, which arrived several days later. (Id. at 3.) Mr. Csanadi represents that at some point after he received the papers, a law clerk at FCI Butner offered to help him file a § 2255 petition, and informed him that his sister, a paralegal, would electronically file the petition for $100. (Id.) "He also told Mr. Csanadi that the Court granted a ninety day exten[s]ion, which made his new deadline to file June 22, 2014." (Id.)
On June 3, 2014, Mr. Csanadi was again moved into SHU. (Inmate History at 2.) On June 20, 2014, he called his father to ask him to call the courthouse to inquire about the status of his § 2255 petition. (Mot. for Leave to File 2255 Out of Time at 4.) He was informed that no petition had been filed. (Id.) Mr. Csanadi therefore drafted a letter to this Court on June 22, 2014, seeking an extension of time in which to file his § 2255 petition and appointment of counsel.
On August 14, 2014, Mr. Csanadi was moved again, this time to FCI Berlin (New Hampshire) — by way of Oklahoma and Brooklyn, New York. (Inmate History at 1.) He arrived on August 28, 2014, and was transferred to SHU the following day. (Id.) At some point during the next month, Mr. Csanadi wrote to a Public Defender in Bridgeport, Connecticut, seeking contact information for a pro bono attorney. (See Ex. G to Mot. for Leave to File 2255 Out of Time.) The Public Defender responded by letter dated October 2, 2014, providing the information Mr. Csanadi sought. (Id.)
On January 8, 2015, Petitioner was transferred to FCI McKean (Pennsylvania) — by way of Devens (Massachusetts), Brooklyn (New York), and Canaan (Pennsylvania) — where he arrived on January 22, 2015. (Inmate History at 1.) His personal property, including legal papers, arrived on February 3, 2015. (See Ex. H to Mot. for Leave to File 2255 Out of Time.) The Court issued its ruling denying Mr. Csanadi's request for an extension of time, without prejudice to re-file, on February 24, 2015. The motions currently before the Court, dated September 2, 2015, were docketed on October 5, 2015.
Section 2255 allows prisoners in federal custody to move for their sentences to be vacated, set aside, or corrected if their "sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). However, under AEDPA, claims under § 2255 must be brought within one year of the later of
28 U.S.C. § 2255(f).
In "rare and exceptional circumstance[s]," Smith v. McGinnis, 208 F.2d 13, 17 (2d Cir. 2000), the one-year period may be equitably tolled (that is, the one-year period within which the claim had to be filed would not begin to accrue until a later date). However, "[t]o equitably toll the one-year limitations period, a petitioner must show that extraordinary circumstances prevented him from filing his petition on time, and he must have acted with reasonable diligence throughout the period he seeks to toll." Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001).
"Whether a circumstance is extraordinary is based not on how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA's limitations period." Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011) (internal quotation marks and alterations omitted). "In determining whether a petitioner has diligently pursued his rights, the standard is one of reasonable diligence, `not extreme diligence or exceptional diligence.'" Rivera v. United States, 719 F.Supp.2d 230, 234 (D. Conn. 2010) aff'd, 448 F. App'x 145 (2d Cir. 2011) (quoting Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir. 2003)). Thus, a district court should ask, "`[D]id the petitioner act as diligently as reasonably could have been expected under the circumstances?'" Id. (quoting Baldayaque, 338 F.3d at 153.)
Mr. Csanadi identifies several alleged impediments to filing his § 2255 petition in a timely manner, and for which he seeks equitable tolling. These include: (1) his belief, for approximately eight months between April 16, 2013 (when his conviction became final) and February 24, 2014, that Attorney Thomas had filed an appeal on his behalf; (2) this Court's delay in ruling on his June 22, 2014 motion to file an out of time petition and for appointment of counsel until February 24, 2015; (3) the extended periods of time he spent in the Special Housing Unit; (4) several stretches of time when he was being transferred from one prison to another; and (5) his belief, beginning sometime after March 7, 2014,
There is a factual dispute between Mr. Csanadi's account that Attorney Thomas told him that he was going to file an appeal on his behalf and Attorney Thomas's declaration that Mr. Csanadi had in fact directed him not to file an appeal. However, for purposes of this motion only, the Court assumes that Mr. Csanadi's version of events is accurate. The Court therefore assumes, for purposes of this motion, that Attorney Thomas told Mr. Csanadi that he was filing an appeal, but neither filed such an appeal nor notified Mr. Csanadi that he had not done so. This is the kind of rare and extraordinary circumstance that warrants equitable tolling. See, e.g., Baldayaque, 338 F.3d at 150-53 (holding that petitioner's attorney's failure to file § 2255 petition on his behalf in spite of petitioner's request that he do so constitute a rare and extraordinary circumstance). After all, had Attorney Thomas filed an appeal, as Mr. Csanadi claims to have believed he planned to do, Mr. Csanadi would have had no need to file a § 2255 petition.
The question then becomes whether Mr. Csanadi was reasonably diligent, such that equitable tolling for the period between April 16, 2013 and February 24, 2014 is appropriate. The Second Circuit's ruling in Wims v. United States, 225 F.3d 186 (2d Cir. 2000) is instructive. There, as here, the petitioner believed that his counsel was pursuing an appeal on his behalf. Id. at 188. After sixteen months, he learned that his counsel had not in fact filed the appeal, and a month after that, the petitioner filed a habeas petition. Id. The petition was therefore five months late. Id. The Court held as follows:
Id. at 190-91 (internal citations and footnotes omitted).
This Court does not believe that a reasonably diligent person in Mr. Csanadi's circumstances
Petitioner argues that the statute of limitations should be tolled for the period between June 22, 2014,
In his Reply, Mr. Csanadi cites several Title VII cases in which courts have noted that the statute of limitations may be equitably tolled during the pendency of a motion for the appointment of counsel. (See Reply at 7 (citing South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994); Harris v. Walgreen's Distrib. Ctr., 456 F.2d 588, 592 (6th Cir. 1972); Jenkins v. Potter, 271 F.Supp.2d 557, 563 (S.D.N.Y. 2003)).) As explained by the Sixth Circuit in Harris, "a complainant able to hire a lawyer might be able to file suit within [the] 30 day[] [statute of limitations], while one financially unable to do so was still petitioning the court to appoint a lawyer for him. Obviously, too, the filing, processing and decision of the motion for counsel could consume the entire 30-day period." 456 F.2d at 591. However, as the Government notes in its Sur-Reply, Mr. Csanadi has cited no case in which equitable tolling has been applied during the pendency of a motion for appointment of counsel in the habeas context.
The closest Mr. Csanadi gets to doing so is his citation to United States v. Flores, where Judge Lynch considered the argument Mr. Csanadi raises here, but ultimately did not decide whether or not to adopt it. Nos. 01cr782 (GEL) & 07Civ466 (GEL), 2007 WL 4326733 (S.D.N.Y. Dec. 4, 2007). Judge Lynch noted on the one hand that "[n]othing prevented [the petitioner] from filing a § 2255 motion in a timely manner while his motion for appointment of counsel was pending" and he "could have filed that petition in a timely manner, and then moved for the appointment of counsel to assist in its prosecution." Id. at *2. On the other hand, Judge Lynch opined that there was reason to believe that the Harris line of cases might apply in the habeas context, and if it did, would toll the petitioner's statute of limitations. Id. In the end, however, Judge Lynch skirted this "preliminary procedural issue[]," holding that the petition was without merit. Id. at *3.
This Court is unpersuaded that the Harris line of cases applies in the habeas context. Unlike in the Title VII context, where a plaintiff cannot reach federal court to file a motion for appointment of counsel until she has set forth and exhausted her claims before the EEOC, a habeas petitioner who files a motion for appointment of counsel prior to a habeas petition has not laid out the basis of her claim in any forum. This distinction is important.
If such motions for appointment of counsel tolled the statute of limitations for the filing of a § 2255 petition until the Court acted upon them (necessarily, to deny them for lack of jurisdiction), petitioners could substantially extend the time for filing their habeas petitions by seeking appointment of counsel after sentencing in every case, without having to so much as set forth any basis of their claims for habeas relief. Such a system would undermine AEDPA's statute of limitations and essentially eliminate the requirement that prisoners demonstrate "extraordinary" circumstances in order to obtain equitable tolling. See Sanchez-Butriago v. United States, Nos. 00Civ8820 (JFK) & 89cr644-2 (JFK), 2003 WL 354977, at *3 (S.D.N.Y. Feb. 14, 2003) ("The limitations period is not tolled whenever a petitioner files any sort of motion. Were it tolled so easily, a petitioner could repeatedly file motions, ones with little to no chance of success, and effectively eviscerate AEDPA's statute of limitations.").
Mr. Csanadi admits that he knew that the deadline for the filing of his habeas petition was pending (or passed) when he filed his motion for appointment of counsel. He could have and should have filed "a pro se skeletal petition" rather than only the motion for appointment of counsel. Nelson v. Quarterman, 215 F. App'x 396, 398 (5th Cir. 2007). His failure to do so constitutes a lack of required diligence, and this Court therefore declines to equitably toll the statute of limitations during the pendency of Mr. Csanadi's motion for appointment of counsel.
Mr. Csanadi next argues that his motion for extension of time was a "defective pleading" of the type that the Supreme Court has held may toll the statute of limitations. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) ("We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period. . . ."). However, as the Government argues, "the type of defective pleading that warrants equitable tolling are motions or complaints that are complete on their face and sufficient to give notice to the other party of the claims being asserted, but are otherwise defective because of some technicality." (Sur-Reply at 4 (citing Burnett v. New York Central R. Co., 380 U.S. 424 (1965) (timely complaint filed in wrong court); Herb v. Pitcairn, 325 U.S. 77 (1945) (same); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (timely filing of defective class action)).) That is not the case here.
Further, as the Government notes in its Opposition,
(Gov't's Omnibus Opp'n at 20.) The Court finds this point persuasive. For all of these reasons, Mr. Csanadi is not entitled to equitable tolling for the period June 22, 2014 to February 24, 2015.
Petitioner next appears to claim that the time he spent in transit between prisons and in SHU should be tolled. However, courts in this Circuit have generally not found such circumstances to be rare and extraordinary. See, e.g., Acosta v. United States, No. 09 CR 1126 (SAS), 2012 WL 206119, at *2 (S.D.N.Y. Jan. 23, 2012) ("The impediments asserted by petitioner — including prisoner transfers, lockdowns, and limited access to legal papers and law libraries — are common to many prisoners during their incarceration. Such impediments do not constitute the type of `extraordinary circumstances' that would warrant equitable tolling of the statute of limitations."); Rivera, 719 F. Supp. 2d at 234 ("`[T]he difficulties attendant on prison life, such as transfers between facilities, solitary confinement, lockdowns, restricted access to the law library, and an inability to secure court documents, [generally] do not by themselves qualify as extraordinary circumstances.") (quoting Corrigan v. Barbery, 371 F.Supp.2d 325, 330 (W.D.N.Y. 2005)); Johnson v. Girdich, No. 03 CIV. 5086 (LBS), 2006 WL 473886, at *2 (S.D.N.Y. Feb. 27, 2006) ("`A]dministrative difficulties associated with correctional procedures such as transfers and lock-downs do not generally constitute circumstances under which equitable tolling is granted.'" (quoting Taylor v. Hodges, No. 01-2566, 2001 U.S. Dist. LEXIS 18814, at *6 (S.D.N.Y. Nov. 26, 2001)).
Moreover, and importantly, Mr. Csanadi does not explain what effect his time in SHU had on his ability to diligently pursue filing a § 2255 petition. As the Government notes, it appears that Mr. Csanadi was able to make phone calls and write letters from SHU, as he did multiple times in June 2014. (See Inmate History at 2 (showing Mr. Csanadi was in SHU from June 3, 2014 until August 2014); Mot. for Leave to File 2255 Out of Time at 4 (discussing calling his father on June 20, 2014 and writing a letter to the Court on June 22, 2014)); see also Csanadi, No. 3:11cr239 (JBA), Motion for Copy of File; id., Mot. for Leave to File 2255 Petition Out of Time. Mr. Csanadi does not allege otherwise, nor does he contend that he was unable to access his legal papers while he was in SHU. In the absence of any such claims, the Court finds no justification for tolling the statute of limitations.
Further, even if the Court tolled the statute of limitations while Mr. Csanadi was in transit between facilities, Mr. Csanadi would only get an additional 41 days,
Mr. Csanadi represents that at some time after March 7, 2014 (he does not specify when), "[a] law clerk at FCI-Butner offered to help him with th[e] monumental task" of filing a § 2255 petition, "and to save time would have his sister, the paralegal, electronically file Mr. Csanadi's motion for one hundred dollars. He also told Mr. Csanadi that the Court granted a ninety day exten[s]ion, which made his new deadline to file June 22, 2014."
Even if this Court held otherwise and tolled the period during which Mr. Csanadi was lulled into believing a petition was being filed on his behalf, he still would not have filed his petition within the statutory period required by AEDPA. Rather, beginning the "clock" on February 24, 2014, and tolling the periods between March 7, 2014 and June 20, 2014, August 14 and August 27, 2014, and January 8, 2015 and February 3, 2015, the statute of limitations would have run by the end of July 2015 — several months before Mr. Csanadi filed his petition. Mr. Csanadi's Motion for Extension of Time is therefore denied. Moreover, even if this Court had granted Mr. Csanadi's motion, his claim would fail on the merits, as explained below.
Because Mr. Csanadi did not file his § 2255 petition within the statute of limitations, his claim is barred. However, even were this Court to consider it on the merits, it would fail. Mr. Csanadi raises two claims in his petition: (1) the warrant used to seize items from his residence was unconstitutional; and (2) his attorney was ineffective in failing to file an appeal.
Mr. Csanadi is, as the Government argues, procedurally barred from raising the first of these two claims. Under the procedural default rule, "[w]hen a petitioner fails to raise a claim on direct appeal, . . . the petitioner is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom or that he is `actually innocent' of the crime of which he was convicted." Morales v. United States, No. 3:12-CV-0194 (MPS), 2014 WL 7369512, at *9 (D. Conn. Dec. 29, 2014) (internal quotation marks omitted); see Yick Man Mui v. United States, 614 F.3d 50, 54 (2d Cir. 2010) (same). "To establish `cause,' a petitioner has to show that the circumstances that impeded his counsel's efforts are external to the petitioner, something that cannot be fairly attributed to him, such as constitutionally ineffective assistance of counsel, interference by officials that makes compliance with the applicable procedural rule impracticable, or a showing that the factual or legal basis for a claim was not reasonably available to counsel." Benoit v. United States, No. 08-CV-04941, 2010 WL 3925201, at *7 (E.D.N.Y. Feb. 25, 2010) report and recommendation adopted, No. 08-CV-4941, 2010 WL 3924736 (E.D.N.Y. Sept. 29, 2010) (internal quotation marks and citations omitted).
Where, as here, a petitioner "waive[s] or abandon[s] a claim by failing to either preserve it for, or raise it on direct appeal," the claim is deemed procedurally barred. Walker v. United States, 306 F.Supp.2d 215, 223 (N.D.N.Y. 2004); see Campino v. United States, 968 F.2d 187, 191 (2d Cir. 1992) ("Campino has not shown any cause for his failure to raise his fourth amendment claim on direct appeal. Campino knew of the claim at the time of appeal: he objected to admission of the seized evidence both in a pre-trial motion and again at trial. He was represented by counsel at trial and on appeal, and, indeed, he raised other issues concerning the seizure of the evidence. He has shown neither cause for his failure to raise the claim of illegal seizure on direct review, nor prejudice resulting therefrom."); Benoit, 2010 WL 3925201, at *7 ("If a petitioner knew of a claim at the time of the appeal and was represented by counsel, the petitioner is barred from raising such claim on a Section 2255 motion.").
Although Mr. Csanadi preserved his right to appeal the Court's denial of his motion to suppress, he did not preserve the right to appeal the constitutionality of the search warrant on any basis not argued in his motion to suppress. Contrary to Mr. Csanadi's apparent belief, as expressed in his Reply brief, the argument he raises now is distinct from the arguments he raised in his motion to suppress. In that motion, Mr. Csanadi sought to suppress the videos and DVDs recovered from his house on the grounds that the phrase "video and/or audio recording devices," as used in the warrant, did not include videos and DVDs, or alternatively on the grounds that there was no probable cause to search for videotapes and DVDs. He now makes the very different argument that the warrant was invalid as insufficiently specific. Because Mr. Csanadi did not preserve this argument and because he has not demonstrated cause for his failure to do so, he is barred from raising this claim now.
Mr. Csanadi next argues that he received ineffective assistance of counsel because Attorney Thomas failed to file an appeal on his behalf. A petitioner seeking to bring a claim of ineffective assistance of counsel must satisfy two prongs: (1) "the defendant must show that counsel's representation fell below an objective standard of reasonableness;" and (2) the defendant must demonstrate that "any deficiencies in counsel's performance [were] prejudicial to the defense." Strickland v. Washington, 466 U.S. 668, 688 & 692 (1984). A court assessing such a claim "must be highly deferential" to counsel, must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time," and must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
Assuming, once again, for purposes of this ruling, that Mr. Csanadi did in fact tell Attorney Thomas to appeal and Attorney Thomas failed to do so, Attorney Thomas's performance would have been deficient, as the Government acknowledges. However, Mr. Csanadi's claim would nonetheless fail because he has not demonstrated that he likely would have succeeded on appeal. For all of the reasons set out in the Court's Ruling on Mr. Csanadi's motion to suppress, the Court finds that the Second Circuit would not have ruled in Mr. Csanadi's favor on appeal, and as such, Mr. Csanadi has not demonstrated prejudice.
For the foregoing reasons, even if the Court had reached the merits of Mr. Csanadi's § 2255 — which it does not — his petition would have been denied.
The only remaining issue is whether to issue a Certificate of Appealability ("COA"). Under 28 U.S.C. § 2253(c)(2), "a certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. In order to sustain this burden, Petitioner would have to show "that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citations omitted). Because Mr. Csanadi has not made such a showing, the Court declines to issue a COA.
Mr. Csanadi's Motion [Doc. # 1] for Leave to File 2255 Out of Time is DENIED, and his Motion [Doc. # 2] to Vacate, Set Aside or Correct Sentence under § 2255 is also DENIED. The Clerk is requested to close this case.
IT IS SO ORDERED.
