Joseph v. Conway , 567 F. App'x 56 ( 2014 )

13-1154
Joseph v. Conway
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 27th day of May, two thousand fourteen.
PRESENT: ROSEMARY S. POOLER,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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ROY JOSEPH,
Petitioner-Appellant,
-v- 13-1154
JAMES CONWAY, Superintendent,
Respondent-Appellee.
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FOR PETITIONER-APPELLANT: GEORGIA J. HINDE, New York, New
York.
FOR RESPONDENT-APPELLEE: DIANE R. EISNER, Assistant
District Attorney (Leonard
Joblove, Amy M. Applebaum,
Assistant District Attorneys, on
the brief), for Kenneth P.
Thompson, District Attorney, Kings
County, Brooklyn, New York.
Appeal from the United States District Court for the
Eastern District of New York (Mauskopf, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and
the case is REMANDED.
Petitioner-appellant Roy Joseph appeals the district
court's judgment dated February 20, 2013, dismissing his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254. By memorandum decision entered February 20, 2013, the
district court dismissed the petition as time-barred, concluding
that Joseph was not entitled to either statutory or equitable
tolling of the one-year statute of limitations set forth in 28
U.S.C. § 2244(d)(1).
Joseph seeks relief from a 2002 New York State
conviction, following a jury trial, for murder in the second
degree, attempted murder in the second degree, and criminal
possession of a weapon in the second degree. He is serving a
sentence of consecutive terms of imprisonment of twenty years to
life on the murder and attempted murder counts and a concurrent
term of ten years' imprisonment on the weapon count.
This Court granted a certificate of appealability, see
28 U.S.C. § 2253(c), limited solely to whether Joseph's attempt
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to file a coram nobis petition in 2006 sufficed to toll the
limitations period and render his § 2254 petition timely. We
assume the parties' familiarity with the facts and record of the
prior proceedings.
1. Applicable Law
The timeliness of a habeas petition presents a
question of law that we review de novo. See Pratt v. Greiner,
306 F.3d 1190, 1195 (2d Cir. 2002) (citing Smaldone v.
Senkowski, 273 F.3d 133, 136 (2d Cir. 2001)). Where the
district court makes factual findings relevant to an assessment
of timeliness under a provision of 28 U.S.C. § 2244(d), we
review those findings for clear error, see Hemstreet v. Greiner,
491 F.3d 84, 89 (2d Cir. 2007), but ultimately review de novo
the legal determination of whether on those facts the petition
was timely filed, see Fernandez v. Artuz, 402 F.3d 111, 112 (2d
Cir. 2005).
The tolling provision of the Antiterrorism and
Effective Death Penalty Act ("AEDPA") provides:
The time during which a properly filed application for
State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d)(2). Under § 2244(d)(2), therefore, a
petition is statutorily tolled from the time it is "properly
filed" and while it is "pending." Id.
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The limitations period in § 2244(d) may also be
"subject to equitable tolling in appropriate cases" --
specifically, where the petitioner shows "(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing."
Holland v. Florida, 560 U.S. 631, 645, 649 (2010) (internal
quotation marks omitted); see also Doe v. Menefee, 391 F.3d 147,
159 (2d Cir. 2004) ("To qualify for [equitable tolling], the
petitioner must establish that extraordinary circumstances
prevented him from filing his petition on time, and that he
acted with reasonable diligence throughout the period he seeks
to toll." (internal quotation marks omitted)).
Under the "prison mailbox rule," a pro se prisoner's
notice of appeal is filed when he delivers it to prison
authorities for forwarding to the district court. See Houston
v. Lack, 487 U.S. 266, 270-72 (1988). We have extended the
prison mailbox rule to apply to prisoners' filings of coram
nobis petitions. See Fernandez, 402 F.3d at 111-13, 116
(deeming coram nobis petition timely where it was placed in
prison mailbox two days before statutory deadline, but not
received until ten days after; delay was caused by the "prison's
mistaken belief that Fernandez's prison account had insufficient
funds to cover postage").
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2. Application
In the district court, Joseph filed an affirmation and
an affidavit, accompanied by certain documentary evidence. He
stated that during the week of August 24, 2006, a "legal
research clerk assigned to assist [him] filed his writ of error
coram nobis with the Appellate Division, Second Department."
(App. 47). Joseph was incarcerated at Attica Correctional
Facility at the time, and he (or his legal research clerk)
apparently filed his papers by handing them to a prison
official. In June 2007, Joseph wrote the Clerk of the Court of
the Appellate Division, Second Department, to inquire as to the
"motion of Writ of Error Coram Nobis" he had "submitted" on
August 24, 2006. (App. 49). The Second Department responded on
June 19, 2007, advising that the court had not received his
motion. By letter dated August 10, 2007, Joseph wrote the
Inmate Correspondence Office at Attica asking for information
about "legal papers" he had sent to the "Kings County Supreme
Court" in August 2006. (App. 51). Someone in the
Correspondence Office wrote back, confirming that "one free
legal envelope" went out for Joseph during the week of August
21, 2006, but that no record was made of to whom the envelope
was sent. (Id.).
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Joseph then sent a new set of coram nobis papers to
the Appellate Division on August 21, 2007. The Appellate
Division denied the petition on November 27, 2007.
Joseph acknowledges that his habeas petition would be
time-barred unless the limitations period is statutorily or
equitably tolled.1 On appeal, he argues that pursuant to the
prison mailbox rule, he filed the coram nobis petition with the
state court in August 2006 -- when he contends he submitted the
papers to the prison authorities -- and the petition remained
pending until the Appellate Division denied it on November 27,
2007. Because the state court never received the petition,
however, the district court declined to apply the prison mailbox
rule, stating it did "not believe based on the record before it
that a coram nobis application was properly filed with the
Appellate Division." Joseph v. Conway, No. 07-CV-05223 (RM),
2013 WL 632118 at *5 (E.D.N.Y. Feb. 20, 2013).
We remand to the district court for amplification of
the record. As noted in the certificate of appealability,
"[w]hat constitutes sufficient evidence of a properly filed
petition in compliance with the applicable law and rules
governing filing" is unsettled in this Circuit. (App. 69).
1
As Joseph's conviction became final for the purposes of
AEDPA on November 28, 2005, he had until November 28, 2006 to seek
habeas relief, unless he had (1) a pending state application for
collateral review or (2) grounds for equitable tolling. See 28 U.S.C.
§ 2244(d).
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Indeed, the question whether the prison mailbox rule is
available when the state court never receives an alleged filing
is unanswered in this Circuit, and other circuits have reached
different results. Compare Ray v. Clements, 700 F.3d 993, 1008
(7th Cir. 2012) (setting forth burden-shifting standard, in
which petitioner must make prima facie showing of delivery
before burden shifts to state to disprove delivery), and Allen
v. Culliver, 471 F.3d 1196, 1198 (11th Cir. 2006) (per curiam)
(same), and Caldwell v. Amend, 30 F.3d 1199, 1202-03 (9th Cir.
1994) (same), with Grady v. United States, 269 F.3d 913, 916-17
(8th Cir. 2001) (placing "ultimate burden" on petitioner to show
he should "benefit from the [prison mailbox] rule"). We decline
to answer this question on the record before us, however,
because of the factual uncertainties. See Grimo v. Blue
Cross/Blue Shield of Vt., 34 F.3d 148, 152-53 (2d Cir. 1994)
(remand is proper where factual record is "unclear"). Moreover,
depending on the answers to the factual questions, it may be
that the statutory tolling question need not be reached.
First, the record contains conflicting evidence as to
whether Joseph sent his coram nobis petition to the Appellate
Division or to the Supreme Court, Kings County. The district
court resolved the conflict against Joseph, even though he
submitted some evidence that he did send the papers to the
Appellate Division. Second, although the Inmate Correspondence
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Office reported using one free legal envelope for Joseph during
the period he purportedly mailed his petition, the record is
unclear as to what was sent and where it was sent. Indeed, as
the state conceded at oral argument, no effort was undertaken to
locate whatever prison mail logs exist. Third, Joseph states in
his affidavit that "the legal research clerk assigned to assist
[him] filed his writ of error coram nobis petition." (App. 47).
It is unclear who this "legal research clerk" was, and we cannot
discern whether he or she qualifies as a "prison authority"
within the meaning of the prison mailbox rule. See
Knickerbocker v. Artuz, 271 F.3d 35, 37 (2d Cir. 2001)
(suggesting that the prison mailbox rule is unavailable where
the "delay . . . is not attributable to prison officials").
Finally, the record is unclear whether Joseph has a copy of the
coram nobis petition he allegedly filed in 2006. Counsel argues
that a document apparently dated August 21, 2007 is the document
that Joseph submitted in 2006, with the "6" in 2006 altered to a
"7." But this is just speculation, and further inquiry should
be made. The district court essentially concluded that because
Joseph did not submit a copy, he must not have actually
submitted the original in 2006. Again, the district court drew
an inference against Joseph.
The State argues that the district court's order to
show cause of January 10, 2008 gave Joseph the opportunity to
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make a case for statutory or equitable tolling, but Joseph
failed to do so. Joseph clearly attempted to make his case,
however, as he filed an affirmation, an affidavit, and
supporting documentation. But some of the information he needed
was not in his possession, such as the mail log or other records
from the Inmate Correspondence Office, and some of Joseph's
statements were not as clear as they could have been. Because
he is incarcerated, Joseph is not in a position to carry out his
own investigation to substantiate his allegations. As Joseph's
pro se status entitled him to "special solicitude" and "liberal"
construction of his submissions, Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation
marks omitted) (per curiam),2 the district court should have
inquired further. Accord Valentin v. Dinkins, 121 F.3d 72, 75-
76 (2d Cir. 1997) (holding that district courts must assist pro
se incarcerated litigants with their inquiry into the identities
of unknown defendants); Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983) (noting the "obligation on the part of the court to
make reasonable allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their lack
of legal training").
2
"It is well established that the submissions of a pro se
litigant must be construed liberally and interpreted 'to raise the
strongest arguments that they suggest.'" Triestman, 470 F.3d at 474
(quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).
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We remand to the district court for additional fact-
finding and to decide, on the basis of a more complete factual
record, whether Joseph is eligible for statutory or equitable
tolling. If the facts do not support Joseph's contention that
he attempted to file a coram nobis petition in August 2006, the
question posed by the certificate of appealability may not need
to be reached. If the facts do demonstrate that Joseph
"properly filed" his petition, then the district court shall
decide whether the statute of limitations was tolled.
For the foregoing reasons, we VACATE the judgment of
the district court and REMAND for further proceedings.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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