Rivera v. United States , 448 F. App'x 145 ( 2011 )

10-2593
Rivera v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30th day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 CARLOS F. RIVERA,
14
15 Petitioner-Appellant,
16
17 -v.- 10-2593
18
19 UNITED STATES OF AMERICA,
20
21 Respondent-Appellee.
22
23 - - - - - - - - - - - - - - - - - - - -X
24
25 FOR APPELLANT:
26 Robert J. Boyle
27 New York, NY
28
1
1 FOR APPELLEE:
2 Eric J. Glover (Robert M.
3 Spector, on the brief),
4 Assistant United States
5 Attorney, for David B. Fein,
6 United States Attorney,
7 District of Connecticut,
8 New Haven, CT
9
10
11 Appeal from a judgment of the United States District
12 Court for the District of Connecticut (Kravitz, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the district court’s judgment is AFFIRMED.
16
17 Carlos Rivera appeals from a judgment entered in the
18 United States District Court for the District of Connecticut
19 denying as untimely his petition for a writ of habeas
20 corpus. We assume the parties’ familiarity with the
21 underlying facts, the procedural history, and the issues
22 presented for review.
23
24 [1] Rivera argues that the district court erred by denying
25 his motion to equitably toll the one-year limitations period
26 for filing his habeas petition. See 28 U.S.C. § 2255(f)(1).
27 We review the district court’s legal conclusions de novo and
28 its factual findings for clear error. Jenkins v. Greene,
29 630 F.3d 298, 302 (2d Cir. 2010). Where a district court
30 declines to grant equitable tolling “in the exercise of its
31 discretion, we apply an abuse of discretion standard.” Id.
32
33 “To equitably toll the one-year limitations period, a
34 petitioner must show that extraordinary circumstances
35 prevented him from filing his petition on time, and he must
36 have acted with reasonable diligence throughout the period
37 he seeks to toll.” Hizbullahankhamon v. Walker, 255 F.3d
38 65, 75 (2d Cir. 2001) (internal quotation marks omitted).
39 “[W]e set a high bar to deem circumstances sufficiently
40 ‘extraordinary’ to warrant equitable tolling.” Dillon v.
41 Conway, 642 F.3d 358, 363 (2d Cir. 2011) (per curiam).
42 Rivera has failed to surmount that bar. The circumstances
43 he alleges--a delay in his ability to get in contact with
44 his attorney to request a copy of his trial transcripts and
2
1 other documents, and the temporary withholding of those
2 documents by the prison mail room to ensure compliance with
3 a prison rule--are far from extraordinary. Rivera has not
4 alleged egregious conduct on the part of his attorney. See
5 Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir.
6 2003). Nor has he alleged intentional interference by
7 prison personnel on the verge of the filing deadline. See
8 Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000).
9 Rivera was denied access to the requested documents only
10 temporarily; the confiscation of his transcripts was
11 accidental; and at no point was he deprived of his actual
12 habeas petition. “[T]he usual problems inherent in being
13 incarcerated do not justify equitable tolling,” and the
14 conduct alleged by Rivera is not “far enough outside the
15 range of behavior that reasonably could be expected . . .
16 that [it] may be considered ‘extraordinary.’” Baldayaque,
17 338 F.3d at 152.
18
19 Rivera has also not shown that the difficulties he
20 faced prevented him from filing his petition on time. To be
21 eligible for equitable tolling, a petitioner must
22 “demonstrate a causal relationship between the extraordinary
23 circumstances on which the claim for equitable tolling rests
24 and the lateness of his filing, a demonstration that cannot
25 be made if the petitioner, acting with reasonable diligence,
26 could have filed on time notwithstanding the extraordinary
27 circumstances.” Valverde, 224 F.3d at 134. The district
28 court observed that Rivera still had a couple of weeks to
29 file before his § 2255 motion was due once he received the
30 requested documents. The court acted within its discretion
31 in concluding that this was enough time for Rivera to have
32 filed a timely, even if unpolished, petition. See Belot v.
33 Burge, 490 F.3d 201, 207-08 (2d Cir. 2007) (holding that it
34 was “within the court’s reasonable discretion” to conclude
35 that a petitioner was not entitled to equitable tolling
36 because he “ought reasonably to have begun his preparation
37 earlier and filed an unpolished--but timely--petition rather
38 than wait to file his more polished petition until the week
39 that the deadline expired.’” (internal quotation marks and
40 alterations omitted)).
41
42 [2] The district court did not abuse its discretion by
43 declining to hold an evidentiary hearing. See Chang v.
44 United States, 250 F.3d 79, 82 (2d Cir. 2001) (reviewing the
3
1 denial of a merits hearing under 28 U.S.C. § 2255 for abuse
2 of discretion); see also Bolarinwa v. Williams, 593 F.3d
3 226, 232 (2d Cir. 2010) (remanding to the district court to
4 consider a petitioner’s equitable tolling claim and noting
5 that “[t]he decision as to whether an evidentiary hearing is
6 warranted is . . . consigned to the district court”). The
7 record was sufficiently developed for the district court to
8 conclude that the circumstances Rivera faced were not
9 extraordinary and did not prevent him from filing a habeas
10 petition on time. Because an evidentiary hearing was not
11 necessary to determine that Rivera was ineligible for
12 equitable tolling, it was not an abuse of discretion for the
13 court to forgo one.
14
15 We have considered Rivera’s remaining arguments and
16 find them to be without merit. For the foregoing reasons,
17 the judgment of the district court is hereby AFFIRMED.
18
19
20
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, CLERK
23
4