Diaz v. Kelly

01-2687-pr
Diaz v. Kelly
01-2736-pr
Tan v. Bennett
02-2037-pr
Taylor v. Hodges
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2007
Heard: December 11, 2007 Decided: January 25, 2008
Docket Nos. 01-2687-pr,01-2736-pr, 02-2037-pr
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ANGEL DIAZ,
Petitioner-Appellant,
v.
WALTER KELLY, Superintendent of
Attica Correctional,
Respondent-Appellee.
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YOKE YEW TAN,
Petitioner-Appellant,
v.
FLOYD G. BENNETT, Superintendent,
Elmira Correctional Facility,
Respondent-Appellee.
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WARREN TAYLOR,
Petitioner-Appellant,
v.
GARY F. HODGES,
Respondent-Appellee.
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Before: NEWMAN, CARDAMONE, and CABRANES, Circuit Judges.
Appeals from judgments of the United States District Courts for
the Western and Southern Districts of New York dismissing habeas
corpus petitions as time-barred.
Affirmed as to Nos. 01-2687 (Diaz) and No. 01-2736 (Tan);
reversed and remanded as to No. 02-2037.
Gail Jacobs, Great Neck, N.Y., for Petitioner-
Appellant Diaz.
Loretta S. Courtney, Asst. District Atty.,
Rochester, N.Y. (Michael C. Green, Monroe
County District Atty., Rochester, N.Y., on
the brief), for Respondent-Appellee Kelly.
Randa D. Maher, Great Neck, N.Y., for
Petitioner-Appellant Tan.
Nicole Beder, Asst. District Atty., New York,
N.Y. (Robert M. Morganthau, N.Y. County
District Atty., Morrie I. Kleinbart,
Special Asst. District Atty., New York,
N.Y., on the brief), for Respondent-
Appellee Bennett.
Monica R. Jacobson, New York, N.Y., for
Petitioner-Appellant Taylor.
Tracy Siligmueller, Asst. District Atty.,
Bronx, N.Y. (Robert T. Johnson, Bronx
County District Atty., Nancy D. Killian, Na
Na Park, Asst. District Attys., Bronx,
N.Y., on the brief), for Respondent-
Appellee Hodges.
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JON O. NEWMAN, Circuit Judge.
These three appeals from denials of petitions for writs of habeas
corpus all present variations of the issue of what circumstances toll
the one-year statute of limitations prescribed by the Anti-Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. §
2244(d). Angel Diaz appeals from the October 2, 2001, judgment of the
District Court for the Western District of New York (Hugh B. Scott,
Magistrate Judge). Yoke Yew Tan appeals from the July 25, 2001,
judgment of the District Court for the Southern District of New York
(Gerard E. Lynch, District Judge). Warren Taylor appeals from the
December 4, 2001, judgment of the District Court for the Southern
District of New York (Robert W. Sweet, District Judge). Diaz and Tan
sought tolling on the ground that lack of proficiency in the English
language prevented them from timely filing their petitions. Taylor
sought tolling because of the lack of notification of the denial of
his state court collateral attack.
We conclude that English language deficiency can warrant tolling
of the AEDPA limitations period, but that Diaz and Tan have failed to
allege circumstances establishing the due diligence required to
warrant tolling. We also conclude that the state court’s lack of
notification and Taylor’s prompt filing after receiving a response to
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his inquiry to the state court justified tolling. We therefore affirm
in No. 01-2687 (Diaz) and No. 01-2736 (Tan), and reverse and remand
in No. 02-2037 (Taylor).
Background
Diaz. Diaz, who asserts that he is “primarily a Spanish
speaker,” was convicted in New York Supreme Court of murder in 1992.
Because his conviction became final before the enactment of AEDPA, he
was entitled to file his federal petition for habeas corpus within a
one-year grace period from the Act’s effective date, April 24, 1996,
see Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998). His habeas
filing deadline was thus April 24, 1997, unless some portion of the
one-year grace period was subject to tolling. Tolling was
indisputably available for the interval during which Diaz’s state
court collateral challenge to his conviction, filed prior to the
enactment of AEDPA, was pending. See 28 U.S.C. § 2244(d)(2). That
interval ended on February 5, 1997. Thus, the limitations period for
his federal habeas petition, unless further tolled, would have ended
on February 5, 1998, in order to afford Diaz the full one-year grace
period authorized by Ross. Diaz filed the petition on June 29, 1998,
more than four months late.
In response to an inquiry from the District Court as to why the
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petition was not time-barred, Diaz replied that he did not speak or
read English, that an inmate had assisted him in filing his state
court collateral challenge, and that “it took me a while to find
someone” to provide assistance with his federal court petition.
The Magistrate Judge, to whom the matter had been referred,
initially deferred a ruling on timeliness in October 1998, and
ultimately dismissed the petition as untimely in September 2001.
Tan. Tan, who is of Malay origin and speaks a Chinese Cantonese
dialect, was convicted in New York Supreme Court of narcotics offenses
in 1995. His conviction became final on July 8, 1998, after the
effective date of AEDPA. Accordingly, he had until July 8, 1999 to
file his petition. Tan filed his petition on May 4, 2000, nearly
eleven months late. In July 1999, before he had filed his habeas
petition, but after his one year statutory period had already expired,
Tan sought to vacate the judgment of conviction pursuant to New York
Criminal Procedure Law Section 440.10. He did so with the assistance
of an inmate who spoke Chinese and English. The motion was denied,
as was leave to appeal. Because his one year statutory filing period
had already expired, this subsequent state court collateral attack
does not toll the federal limitations period. See Cf. Fernandez v.
Artuz, 402 F.3d 111, 116 (2d Cir. 2005) (“To toll the AEDPA statute
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of limitations, the state petition must be both ‘properly filed’ and
‘pending’ during the tolling period.”
In response to two inquiries from the District Court as to why
the petition was not time-barred, Tan alleged lack of “a working
knowledge” of English and “difficult[y]” in finding interpreters in
the Department of Correctional Services. The District Court dismissed
the petition as untimely in July 2001.
Taylor. Taylor was convicted in New York Supreme Court of
manslaughter in 1996. Taylor's conviction became final on April 13,
1998. Taylor filed a state court coram nobis motion on April 23,
1998, which was denied by the Appellate Division on July 16, 1998.
Taylor filed a NYCPL § 440.10 motion on March 26, 1999, which was
denied on March 3, 2000, with leave to appeal denied on July 6, 2000.
Because state court consideration of these state collateral attacks
during a total of 527 days tolled his one year habeas limitations
period, Taylor had until October 17, 2000, to file his federal
petition, in the absence of any additional tolling. He filed his
petition on February 1, 2001, about three and a half months late.
In response to an inquiry from the District Court as to why his
petition was not time-barred, Taylor explained that he had not
received the Appellate Division’s July 6, 2000, order denying leave
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to appeal the denial of his section 440 motion, until January 31,
2001. On that date he signed for legal mail at Gowanda Correctional
Facility, to which he had been transferred from Auburn Correctional
Facility, and picked up a letter from the Appellate Division, post-
marked January 27, 2001, which contained the Court’s July 6, 2000,
order. The Court’s January 27, 2001, letter was sent in response to
an inquiry sent by Taylor to the Court on December 15, 2000. Taylor’s
federal petition was filed one day after he finally learned of the
state court’s July 6, 2000, order.
The Appellate Division has no mail records showing a copy of its
July 6, 2000, order having been previously mailed to Taylor, and the
Auburn Correctional Facility shows no record of Taylor receiving any
legal mail while incarcerated there.
The district court dismissed Taylor's petition as untimely in
November 2001.
Certificates of appealability. In April 2006, this Court granted
motions for a certificate of appealability (“COA”) and appointed
counsel for Diaz and Tan to consider whether lack of proficiency in
English warranted tolling of the limitations period and whether they
had acted with due diligence during the periods they seek to toll.
We also granted a COA and appointed counsel for Taylor to consider
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whether unusual delay in receipt of the state appellate court’s
decision denying an application for leave to appeal warranted
equitable tolling of the limitations period and whether he had acted
with due diligence during the period he seeks to toll.1
Discussion
All three appeals present, in different contexts, the issue of
whether equitable tolling of the one-year limitations period of AEDPA
is available in the circumstances presented. We have previously
recognized that equitable tolling can apply to the AEDPA limitations
period, see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), as have
all of the circuits that have considered the question, see Dunlap v.
United States, 250 F.3d 1001, 1004 n.1 (6th Cir. 2001) (collecting
cases). To warrant equitable tolling, a petitioner must show “(1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005); see Smith, 208 F.3d at 17 (same).
Before determining the applicability of equitable tolling in the
three pending appeals, we pause to consider whether the doctrine
remains available to toll the AEDPA limitations period in light of the
1
The record does not disclose the reasons for the delays that
occurred in the District Court or this Court.
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Supreme Court’s recent decision in Bowles v. Russell, 127 S. Ct. 2360(2007). In Bowles the Court ruled that statutory time periods
limiting the time for filing a notice of appeal, being jurisdictional
in the strict sense, are not subject to equitable exceptions. See id.
at 2366-67. Although the Court referred to “the jurisdictional
significance of the fact that a time limitation is set forth in a
statute,” id. at 2364, it would be an unwarranted extension of Bowles
to think that the Court was impliedly rendering equitable tolling
inapplicable to limitations periods just because they are set forth
in statutes. Since a statute of limitations is a defense, see Fed.
R. Civ. P. 8(c), it has not been regarded as jurisdictional, see Day
v. McDonough, 547 U.S. 198, 205 (2006) (AEDPA limitations period), and
has been subject to equitable tolling, see Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 95-96 (1990). We think it remains so
after Bowles.
The Supreme Court’s recent decision in John R. Sand & Gravel Co.
v. United States, __ S. Ct. __ 2008 WL 65445 (U.S. Jan. 8, 2008),
confirms our view. The Court there noted that most limitations
periods are non-jurisdictional affirmative defenses and are subject
to equitable tolling, see id. at __, 2008 WL at *3, and viewed the
limitations period governing suits against the United States in the
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Court of Federal Claims as jurisdictional only because a long line of
prior decisions had so held and were entitled to adherence under
principles of stare decisis, see id. at __, 2008 WL at *6.
Language deficiency. This Court has not previously considered
whether language deficiency qualifies as a circumstance warranting
equitable tolling, although the Ninth Circuit has indicated that
equitable tolling may be available upon a showing that a prisoner did
not speak English, his prison law library lacked legal materials in
his native language, and he was unable to obtain translation
assistance before the one-year deadline. See Mendoza v. Carey, 449
F.3d 1065, 1069-70 (9th Cir. 2006). The Appellee in No. 01-2687
contends that language deficiency cannot be an “extraordinary”
circumstance as required by tolling jurisprudence because of the high
proportion of prisoners with little or no ability to read English.
We think the proper inquiry is not 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. For the prisoner who cannot
read English, the obstacle is undoubtedly serious, just as it would
be for a prisoner speaking only English incarcerated in a non-English-
speaking country, and can, in some circumstances, justify equitable
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tolling, see id.; cf. Brown v. Parkchester South Condos, 287 F.3d 58,
60-61 (2d Cir. 2002) (mental illness can justify equitable tolling of
Title VII time limit); Canales v. Sullivan, 936 F.2d 755, 758-59 (2d
Cir. 1991) (mental illness can justify equitable tolling of time limit
for SSI disability claim).
This is not to say, however, that language deficiency must be
remedied by the State in any sense comparable to the obligation,
grounded in the Sixth Amendment, to provide an interpreter at trial.
See United States ex rel. Negron v. New York, 434 F.2d 386, 389-90 (2d
Cir. 1970). On the contrary, the diligence requirement of equitable
tolling imposes on the prisoner a substantial obligation to make all
reasonable efforts to obtain assistance to mitigate his language
deficiency.
Neither Diaz nor Tan have alleged efforts that satisfy the
diligence requirement. Both have claimed nothing more than the
unavailability of personnel within their prisons who could translate
for them during the applicable limitations periods. There is no
allegation of any efforts to contact anyone outside the prison who
might assist in making them aware, in their language, of legal
requirements for filing a habeas corpus petition, nor what efforts
were made to learn of such requirements within their places of
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confinement. Equitable tolling was properly rejected in their cases.
Lack of state court notice. Taylor contends that he is entitled
to equitable tolling because the Appellate Division did not send him
notice of the June 6, 2000, order denying leave to appeal the denial
of his section 440.10 motion (the action that completed his exhaustion
of State Court remedies) until he inquired about the status of his
case on December 15, 2000, and he did not learn of the denial until
he received the Appellate Division’s response, postmarked January 27,
2001, on January 31, 2001. The Appellee in No. 02-2037 has presented
no evidence that the Appellate Division notified Taylor soon after
issuance of its July 6, 2000, order, as required by local rule:
Upon determination of the application the original record
of proceedings shall be returned to the trial court
together with a certified copy of the order entered upon
the application; a certified copy of the order shall also
be sent to the defendant at his address shown in the
application.
McKinney's N.Y. Ct. Rules 606.5(c). There is nothing in the record
to dispute Taylor’s contention that the Appellate Division’s notice,
postmarked January 27, 2001, for which he signed in prison on January
31, 2001, was the first notice from the that court of the June 6, 2000
order. The Appellee has supplied no copy of an earlier notice, and
has made no claim that the January notice reflects that it is a second
notice.
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Although we have ruled that the statutorily tolled period in
which state court proceedings are “pending,” see 28 U.S.C.
§ 2244(d)(2), does not include a brief interval between the entry of
a state court order and its receipt a few days later after prompt
mailing, see Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000)
(alternate holding), we have not considered whether a state court’s
failure to send notice within a reasonable time after entry of an
order completing a prisoner’s collateral attack can provide a basis
for equitable tolling. Other circuits have concluded that prolonged
delay by a state court in sending notice of a ruling that completes
exhaustion of state court remedies can toll the AEDPA limitations
period. See Jenkins v. Johnson, 330 F.3d 1146, 155 (9th Cir. 2003);
Miller v. Collins, 305 F.3d 491, 495-96 (6th Cir. 2002); Knight v.
Schonfeld, 292 F.3d 709, 711 (11th Cir. 2002); Woodward v. Williams,
263 F.3d 1135, 1142-43 (10th Cir. 2001); Phillips v. Donnelly, 216
F.3d 508, 511 (5th Cir. 2000). We agree and conclude that the period
from June 6, 2000, until January 31, should be tolled.2
2
Unlike Geraci, which ruled that the statutory tolling provision
of the AEDPA limitations period ended upon the entry of a state
court’s order, rather than its subsequent receipt, 211 F.3d at 9,
equitable tolling in this case appropriately extends until Taylor’s
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The State does contend that Taylor cannot have the benefit of
equitable tolling for lack of due diligence on his part. We disagree.
Taylor made inquiry to the Appellate Division on December 15, 2000,
which was nine months after he had sought leave to appeal the March
3, 2000, denial of his section 440.10 motion. As the Sixth Circuit
has noted, “From a litigant’s perspective, it is a difficult, if not
impossible endeavor, to estimate how long a reviewing court will take
to decide a particular motion.” Miller, 305 F.3d at 496. We see no
point in obliging a pro se litigant to pester a state court with
frequent inquiries as to whether a pending motion has been decided,
at least until a substantial period of time has elapsed. Taylor made
his inquiry to the Appellate Division slightly more than three months
after the end of the limitations period. See Miller, 305 F.3d at 496(five and one-half month interval between limitations period and
discovery of state court ruling does not show lack of diligence;
Phillips, 216 F.3d at 511 (four month interval); cf. Drew v.
Department of Corrections, 297 F.3d 1278, 1287-88 (11th Cir. 2002)
(letter of inquiry filed sixteen months after filing of state court
application does not satisfy diligence).
receipt of the court’s order, in response to his reasonably prompt
inquiry.
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Once Taylor became aware on January 31, 2001, that the Appellate
Division had denied him leave to appeal, he promptly filed his federal
habeas corpus petition the next day. The Appellee suggests that
Taylor could have filed his petition earlier, within the AEDPA
limitations period, but had he filed it before June 6, 2000, the
petition would have been subject to dismissal for lack of exhaustion.
See Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Jenkins, 330 F.3d at
1155-56 (had petitioner “proceeded to file a federal habeas petition,
he ran the distinct risk that the federal petition would be dismissed
for failure to exhaust his claims in the state courts.”). Surely due
diligence does not require prisoners to burden state officials with
the need to oppose federal petitions presenting unexhausted claims.
Taylor is entitled to the benefit of equitable tolling.
Conclusion
We affirm the dismissal of the petitions in Nos. 01-2687 (Diaz)
and No. 01-2736 (Tan) and reverse and remand for consideration of the
merits in No. 02-2037 (Taylor).
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