Collins v. Ercole ( 2012 )

10-2331-pr
Collins v. Ercole
United States Court of Appeals
FOR THE SECOND CIRCUIT
August Term 2011
(Argued: August 31, 2011 Decided: January 26, 2012)
No. 10-2331-pr
_____________________________________
ARVIN COLLINS,
Petitioner-Appellant,
-v.-
ROBERT ERCOLE, Superintendent,
Respondent-Appellee.
_____________________________________
Before: LIVINGSTON, LOHIER, and CARNEY, Circuit Judges.
Petitioner-Appellant Arvin Collins (“Petitioner”) appeals from a judgment
and order of the United States District Court for the Southern District of New
York (Hellerstein, J.) granting Respondent-Appellee Robert Ercole’s motion to
dismiss Petitioner’s petition for a writ of habeas corpus as untimely. Petitioner
contends that the district court erred by declining to hold the statute of
limitations tolled by certain post-conviction motions filed by Petitioner. Finding
no error in the district court’s conclusion that those motions did not toll the
limitations period, we AFFIRM.
MALVINA NATHANSON, Law Offices of Malvina
Nathanson, New York, NY, for Petitioner-
Appellant.
CHRISTOPHER J. BLIRA-KOESSLER (Joseph N.
Ferdenzi, on the brief), Assistant District
Attorney, for Robert T. Johnson, District
Attorney, Bronx County, Bronx, NY, for
Respondent-Appellee.
LIVINGSTON, Circuit Judge:
In 2001, Petitioner-Appellant Arvin Collins (“Petitioner”) was convicted of
murder and attempted murder in New York state court. In 2005, Petitioner’s
2001 judgment of conviction became final, following the conclusion of direct
review. Between 2005 and 2008, Petitioner brought several post-conviction
motions in state court. In 2008, Petitioner filed a federal petition for a writ of
habeas corpus regarding the 2001 judgment of conviction. The district court
(Hellerstein, J.) dismissed the petition as untimely under 28 U.S.C. § 2244(d)(1).
On appeal, Petitioner contends that the district court erred by holding that
certain of his state applications for post-conviction relief had not tolled the
governing one-year statute of limitations under 28 U.S.C. § 2244(d)(2). Section
2244(d)(2), however, limits tolling to those applications for post-conviction or
other collateral review that are made “with respect to the pertinent judgment”—
here, the 2001 conviction and sentence. The applications at issue in this appeal
were directed neither to the 2001 conviction nor to the sentence imposed
thereon; they concerned only a post-conviction administrative determination
that the 2001 sentence ran consecutively (rather than concurrently) to an earlier
undischarged prison term. We hold, therefore, that those applications did not
toll the statute of limitations, and affirm the judgment of the district court.
2
BACKGROUND
This appeal arises from the dismissal of a petition for a writ of habeas
corpus. In resolving the present appeal, however, we must begin with another,
earlier conviction and prison term. In 1988, Petitioner was convicted of first-
degree robbery in state court and sentenced to an indeterminate prison term of
seven to fourteen years. He was released on parole in 1996; in 1999, he was
arrested again, this time for murder. In 2001, Petitioner pled guilty to two
counts of second-degree murder and one count of second-degree attempted
murder.
The court imposed two terms of twenty-five years to life for the two counts
of murder, pursuant to New York State Penal Law § 70.00. Because of
Petitioner’s previous robbery conviction, the attempted murder counted as a
second violent felony under New York law, and the court imposed a sentence of
twenty-five years under Penal Law § 70.04. The trial court imposing sentence
in 2001 directed that these three terms were to run concurrently. Where,
however, a sentence is imposed pursuant to § 70.04 on an individual who is
subject to a prior undischarged prison term, that sentence must run
consecutively to the previous term. N.Y. Penal Law § 70.25(2-a). Therefore, the
New York State Department of Correctional Services (DOCS), in calculating the
total period of incarceration, determined that the undischarged portion of the
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robbery prison term should be added to the 2001 sentence, minus the two years
served by Petitioner between his second arrest and second sentencing.
Petitioner appealed his conviction to the Appellate Division, First
Department, which affirmed in October 2004. The Court of Appeals denied leave
to appeal on December 27, 2004. Petitioner did not petition for certiorari to the
U.S. Supreme Court, and the ninety-day period in which he was entitled to do
so expired on March 28, 2005. The following day, therefore, the one-year statute
of limitations for filing a habeas petition began to run. See 28 U.S.C. §
2244(d)(1).
Between March 28, 2005 and the filing in 2008 of his habeas petition,1
Petitioner filed a number of state post-conviction motions. His first filing was
a petition under New York Civil Practice Law and Rules Article 78, claiming
that DOCS’s determination that the 1988 and 2001 sentences ran consecutively
was contrary to law; he also later filed a motion to renew that petition.
Petitioner additionally filed a motion under New York Criminal Procedure Law
§ 440.10 to vacate his conviction, and he filed two motions under § 440.20 to set
aside his sentence. The first of the two § 440.20 motions also requested in the
alternative that Petitioner be allowed to withdraw his guilty plea and stand
trial.
The parties dispute whether the habeas petition was filed on May 23, 2008 or
1
September 30, 2008. We need not and do not resolve this issue here.
4
Petitioner’s 2008 habeas corpus petition alleged that he had received
ineffective assistance of counsel, and that the evidence supporting his conviction
was tainted by various alleged violations of Petitioner’s Fourth and Fifth
Amendment rights. The habeas petition did not mention the DOCS sentencing
calculation that was the subject of the earlier Article 78 petition.
Following the filing of the petition for habeas corpus, on April 20, 2009, the
district court (Hellerstein, J.) directed Respondent to file an answer. On July 16,
2009, Respondent filed a motion under Fed. R. Civ. P. 12(b)(6) to dismiss the
petition as time-barred under 28 U.S.C. § 2244(d)(1). Petitioner, proceeding pro
se, filed his opposition to the motion to dismiss on or about October 26, 2009.
The district court granted the motion to dismiss the petition as time-barred on
March 19, 2010, and denied a certificate of appealability.2
Petitioner timely filed a notice of appeal and motion for a certificate of
appealability with this Court; a panel of this Court granted that motion on
October 1, 2010, limited to the issue of whether the one-year limitations period
of § 2244(d)(1) had been tolled by Petitioner’s filing of Article 78 petitions in New
York state court. This appeal followed.
2
The district court also denied Petitioner’s claims to equitable tolling of the
limitations period. Petitioner does not challenge that denial on appeal.
5
DISCUSSION
The legal question on appeal is straightforward. Under the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner was
required here to file his petition for habeas corpus within one year of the
expiration of the time for seeking direct review of the state court judgment at
issue. See 28 U.S.C. § 2244(d)(1)(A). As set out above, Petitioner filed his
habeas petition three years after that period ended in March 2005. The one-year
limitations period, however, is tolled during the pendency of certain post-
conviction proceedings in state court. 28 U.S.C. § 2244(d)(2).
Of the five motions filed in state court by Petitioner between 2005 and
2008, Respondent agrees that the § 440.10 motion and the two § 440.20 motions
tolled the limitations period. Petitioner contends that the Article 78 petition,
and the motion to renew that petition, tolled the period as well. If Petitioner is
correct, then it is undisputed that his habeas petition would be timely filed. The
district court, however, concluded that the Article 78 filings did not satisfy the
requirements of § 2244(d)(2), and held that the habeas petition was therefore
time-barred.
The facts material to this appeal are undisputed, and our review of
whether the petition was filed outside the limitations period as a matter of law
is de novo. Saunders v. Senkowski, 587 F.3d 543, 547 (2d Cir. 2009) (per
curiam).
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I.
We begin with the text of the statute. AEDPA’s tolling provision states
that the statute of limitations is tolled during the adjudication of a “properly
filed application for State post-conviction or other collateral review with respect
to the pertinent judgment.” 28 U.S.C. § 2244(d)(2). The pertinent judgment in
this case is Petitioner’s 2001 conviction and sentence for double murder and
attempted murder.3
On its face, the Article 78 petition in this case was not made “with respect
to the pertinent judgment.” Indeed, Petitioner did not challenge any aspect of
his 2001 conviction or sentence. Rather, he argued that DOCS, the New York
agency charged with administering the prison system, wrongly determined that
his unchallenged 2001 sentence should run consecutively, rather than
concurrently, to a previous unchallenged sentence imposed pursuant to a
separate conviction for robbery.
The Article 78 petition argued, in essence, that DOCS had erred in failing
to conclude that notwithstanding N.Y. Penal Law § 70.25(2-a), Petitioner’s 2001
judgment required that his sentences for murder and attempted murder run
concurrently with the undischarged portion of his sentence for robbery. Thus,
Petitioner did not seek review or reconsideration of the pertinent judgment. He
3
Under New York law, “[a] judgment is comprised of a conviction and the
sentence imposed thereon.” N.Y. Crim. Proc. Law § 1.20(15).
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sought, instead, a recalculation of his prison term, supposedly in accordance with
that judgment.
Petitioner argues that the Supreme Court’s recent decision in Wall v.
Kholi, 131 S. Ct. 1278 (2011), suggests that his Article 78 petition was
nevertheless made with respect to the pertinent judgment for tolling purposes.
We disagree. Properly read, Wall in fact demonstrates that the Article 78
petition at issue here did not toll the AEDPA limitations period.
In Wall, a prisoner moved under Rhode Island law to have his sentence
reduced, without challenging the legality of that sentence. Id. at 1282. The
Court held that such a motion tolled the limitations period. In Wall, however,
the “pertinent judgment” challenged in habeas proceedings was the Respondent’s
conviction and sentence for sexual assault; his application for post-conviction
review sought a reduction in that same sentence. Id.4
The Wall Court’s treatment of “review” in § 2244(d)(2), moreover, makes
clear that the Article 78 petition here did not satisfy the requirements for tolling.
4
The same is true of two Tenth Circuit decisions, cited by Petitioner, that
involved petitions for sentence reduction. See Howard v. Ulibarri, 457 F.3d 1146,
1147–1148 (10th Cir. 2006); Robinson v. Golder, 443 F.3d 718, 719–720 (10th Cir. 2006)
(per curiam). To be sure, Petitioner here, like the prisoners in Wall, Howard, and
Robinson, sought a reduction in the total time he would serve in prison. That objective
without more, however, does not render the Article 78 petition here one for “review
with respect to the pertinent judgment”: the total term of imprisonment could also
have been reduced, for example, by reason of an Article 78 petition seeking a reduction
in a wholly separate, independent prison sentence, but such a petition would not toll
the statute of limitations for a habeas petition challenging the pertinent judgment.
8
In the Court’s words, “to trigger the tolling provision, a ‘collateral’ proceeding
must . . . involve a form of ‘review.’” 131 S. Ct. at 1285. Several federal circuit
courts had concluded, prior to Wall, that collateral review denotes a challenge
to the lawfulness of a conviction or sentence. The Court, however, said that
“review” constitutes
an “act of inspecting or examining” or a “judicial reexamination.”
Webster’s [Third New International Dictionary] 1944 [(1993)]; see also
Black’s [Law Dictionary] at 1434 [(9th ed. 2009)] (“[c]onsideration,
inspection, or reexamination of a subject or thing”); 13 O[xford] E[nglish]
D[ictionary] 831 [(2d ed. 1989)] (“[t]o submit (a decree, act, etc.) to
examination or revision”). We thus agree with the First Circuit that
“‘review’ commonly denotes ‘a looking over or examination with a view to
amendment or improvement.’” [Kholi v. Wall, 582 F.3d 147, 153 (1st Cir.
2009)] (quoting Webster’s 1944 (2002)). Viewed as a whole, then,
“collateral review” of a judgment or claim means a judicial reexamination
of a judgment or claim in a proceeding outside of the direct review process.
131 S. Ct. at 1285.
Read straightforwardly, this passage says that “review” occurs when a
reviewing court reconsiders the work of the original court to correct an error or
infelicity committed by that original court—or rather, submits that original
court’s work to examination or revision.5 Petitioner argues, in contrast, that
“review” extends so far as to encompass circumstances in which a reviewing
court merely considers a judgment with a view to amending or improving
5
The Wall Court thus distinguished between “[a] motion to reduce sentence” and
motions “for post-conviction discovery or . . . appointment of counsel,” noting that the
latter “are not direct requests for judicial review of a judgment and do not provide a
state court with authority to order relief from a judgment.” 131 S. Ct. at 1286 n.4.
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something besides that judgment. Petitioner here made no complaint in his
Article 78 petition against the original judgment, nor sought reexamination of
any element of that judgment—on the contrary, he thought that the meaning
and scope of the judgment were clear. Petitioner sought examination and
amendment, instead, of DOCS’s understanding of the legal interaction between
the pertinent judgment and a state statute requiring that his undischarged
sentence on the robbery conviction be served consecutively with his sentence
under the pertinent judgment. An application seeking such relief, however, is
not an application for review of the judgment itself.6
II.
Interpreting § 2244(d)(2), by its plain language, to toll the limitations
period only for those applications that seek review of part or all of the pertinent
judgment tracks the statutory structure of the AEDPA statute of limitations.
AEDPA was enacted in part “to further the principles of comity, finality, and
federalism” by “limit[ing] the scope of federal intrusion into state criminal
adjudications and . . . safeguard[ing] the States’ interest in the integrity of their
criminal and collateral proceedings.” Williams v. Taylor, 529 U.S. 420, 436
(2000). One important element in its scheme is the strict one-year statute of
6
Here, as in Hodge v. Greiner, 269 F.3d 104 (2d Cir. 2001), we reserve the
question of whether, “on facts differing from those in the pending matter, an Article 78
proceeding might be deemed the functional equivalent” of a § 2244(d)(2) application for
post-conviction review. Id. at 107.
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limitations for habeas claims, § 2244(d)(1). See Duncan v. Walker, 533 U.S. 167,
179 (2001). The tolling provision, § 2244(d)(2), is equally important. It stops the
limitations clock, but only when a petitioner waits to bring a habeas challenge
in federal court because he or she is instead bringing that challenge in state
collateral review proceedings. Id. at 179–180.7
These provisions function in tandem if the state court applications that toll
the statute of limitations period pursuant to § 2244(d)(2) seek review of the
judgments challenged in habeas proceedings, governed by § 2244(d)(1). If,
however, § 2244(d)(2) tolls the limitations period for applications that do not call
the pertinent judgment into question, the statutory structure fails to cohere.
Under New York law, for example, some inmates may receive time off from
their sentences for good behavior. N.Y. Correct. Law § 803. The availability of
such good time credits, and their extent where available, varies by type of
sentence imposed. See id. §§ 803–804. If we were to adopt Petitioner’s reading
of § 2244(d)(2), inmates challenging the state’s calculation of their good time
credits through Article 78 petitions or other means could toll AEDPA’s statute
7
We note that a state prisoner may, subject to the limitations of AEDPA, bring
a habeas petition challenging aspects of his or her confinement as violating the
Constitution or federal law. See, e.g., James v. Walsh, 308 F.3d 162, 166–167 (2d Cir.
2002). We do not address tolling of the limitations period applicable to such a habeas
petition. Cf. Cook v. New York State Div. of Parole, 321 F.3d 274, 279–281 & n.5, 282
(2d Cir. 2003) (holding the one-year statute of limitations of 28 U.S.C. § 2244(d)(1)
applicable to a habeas petition challenging continued confinement due to a parole
revocation, but not addressing tolling under § 2244(d)(2)).
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of limitations with regard to their judgments of conviction merely by
characterizing their filings as pointing out a misunderstanding of the
interrelationship between their judgments of conviction and the statutory
provisions governing good time credits. Yet challenges to the calculation of good
time credits have no bearing on the merits of habeas petitions seeking relief from
judgments of conviction for being contrary to law. In that situation, federal
habeas proceedings seeking relief from state court judgments of conviction would
illogically wait on state post-conviction proceedings seeking no revision of those
judgments.
Sections 2244(d)(1) and (2), by their terms, balance several significant, yet
potentially conflicting state interests. These interests include respecting the
finality of state court judgments while permitting the exhaustion of state
remedies for (putatively) improper judgments, Duncan, 533 U.S. at 178–180; and
“provid[ing] both litigants and States with an opportunity to resolve objections
at the state level, potentially obviating the need for a litigant to resort to federal
court,” Wall, 131 S. Ct. at 1288.
Interpreting § 2244(d)(2) to reach applications for relief that do not bear
directly on the pertinent judgment would impede finality while doing little to
serve either a state’s interest in exhaustion of remedies or its interest in
resolving objections to the judgment at the state level rather than in federal
habeas proceedings. Again, applications of the type at issue here assume the
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judgment to be correct and, as a result, seek no revision of it. Tolling the
limitations period while such applications are considered in state court would
thus in no way obviate the need for habeas review of the pertinent judgment,
because that judgment, and its alleged shortcomings, would remain intact.
Here, for example, none of the grounds asserted by Petitioner for habeas
relief related to his Article 78 claim that DOCS improperly failed to run his
robbery and murder sentences concurrently. Adopting Petitioner’s argument,
habeas review would have been required to address these grounds no matter
what; it merely would have taken place considerably later in time.
III.
Petitioner argues that whatever the force of these considerations in the
abstract, holding that the Article 78 petition (and the motion to renew that
petition) did not toll the limitations period here would be illogical, because his
first § 440.20 motion, which indisputably did have this effect, sought the same
relief on the same theory as the Article 78 filings.
This argument is without merit. Section 440.20 authorizes the court in
which a judgment of conviction has been entered to, “upon motion of the
defendant, set aside the sentence upon the ground that it was unauthorized,
illegally imposed or otherwise invalid as a matter of law.” Granted, in the first
§ 440.20 motion, like the Article 78 petition, Petitioner urged that DOCS erred
in concluding that his sentence for murder and attempted murder should run
13
consecutively to his earlier sentence for robbery. In addition to seeking an order
requiring DOCS to recalculate his sentence, however, Petitioner’s first § 440.20
motion also sought, in the alternative, that he be permitted to withdraw his
guilty plea and stand trial on the murder and attempted murder charges. The
first § 440.20 motion, therefore, unlike the Article 78 petition, sought relief from
the judgment of conviction itself, thus rightly tolling the limitations period.
To equate the Article 78 petition and the first § 440.20 motion would
require us to ignore the portion of Petitioner’s § 440.20 motion in which he
sought vacatur of the pertinent judgment, and to read the motion as merely
making the Article 78 arguments alone. We see no reason for doing so, and
Petitioner does not attempt to provide one.
CONCLUSION
Congress drafted AEDPA’s tolling provision as a carefully delineated
exception to a demanding statute of limitations. This exception tolls the
limitations period only during the adjudication of properly filed applications for
collateral review of the pertinent judgment at issue. Petitioner has provided no
convincing reason why this exception applies to the Article 78 filings in this case.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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