David Warren v. Henry Garvin, Supt. Mid-Orange Correctional Facility, Robert Hanslmaier, 219 F.3d 111, 2d Cir. (2000)
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Scribd Government DocsDavid Warren v. Henry Garvin, Supt. Mid-Orange Correctional Facility, Robert Hanslmaier, 219 F.3d 111, 2d Cir. (2000)
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Scribd Government Docs219 F.3d 111 (2nd Cir.
2000)
DAVID WARREN, PETITIONER-APPELLANT,
V.
HENRY GARVIN, SUPT. MID-ORANGE CORRECTIONAL
FACILITY, RESPONDENT-APPELLEE,
ROBERT HANSLMAIER, RESPONDENT.
Docket No. 99-2616
August Term, 1999
UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
Argued May 2, 2000
July 11, 2000
Malvina Nathanson, New York, Ny, for Appellant.
Mary C. Farrington, Assistant District Attorney, New York County, New
York City (Robert M. Morgenthau, District Attorney, Morrie I. Kleinbart,
Assistant District Attorney, New York County, New York City, of
counsel), for Appellee.
Before: Meskill, Parker and Straub, Circuit Judges.
Appeal from a decision of the United States District Court for the
Southern District of New York, Patterson, J., dismissing as untimely
appellant's second petition for writ of habeas corpus.
Affirmed.
Meskill, Circuit Judge
Petitioner-appellant David Warren was convicted by a jury of murder in
the second degree and two robbery counts in the Supreme Court of New
York, New York County. His conviction was affirmed by the Appellate
Division, and he was denied leave to appeal to the Court of Appeals of
New York on September 19, 1990. His conviction became final on
December 18, 1990, on the expiration of his time to petition for certiorari
in the Supreme Court of the United States. See Ross v. Artuz, 150 F.3d
97, 98 (2d Cir. 1998).
Warren filed a timely petition for habeas corpus in the district court on
April 21, 1997. The petition was dismissed without prejudice on June 4,
1997 at Warren's request, to permit him to pursue collateral state relief on
claims that had not been exhausted in the state courts (and were not raised
in the petition). On February 22, 1999, one year, eight and a half months
later, Warren filed a second petition for habeas relief.1 He had made no
attempt to raise additional claims in state court, and the second petition
was essentially identical to the first petition. The United States District
Court for the Southern District of New York, Patterson, J., dismissed the
petition as untimely. Warren now appeals.
We affirm. Because Warren's conviction became final before the effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA), he
had until April 24, 1997, i.e., one year after the effective date of AEDPA,
to file a petition for writ of habeas corpus under 28 U.S.C. 2254. See
Ross, 150 F.3d at 103. The instant petition, filed February 22, 1999, is
therefore untimely. Warren, however, argues that the petition is timely
because (1) he is entitled to equitable tolling, (2) the petition "relates
back" to the filing of the original petition, and (3) the petition should have
been recharacterized as a Rule 60(b) motion for relief from judgment and
granted. We briefly address each argument.
We have recently stated that the limitations period for filing habeas
petitions may be equitably tolled. See Smith v. McGinnis, 208 F.3d 13, 17
(2d Cir. 2000) (per curiam). Equitable tolling is a doctrine that permits
courts to extend a statute of limitations on a case-by-case basis to prevent
inequity. See Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996); see
also Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000) (considering
whether there were "extraordinary or unusual circumstances that would
justify equitable tolling"). In the context of a late-filed habeas petition,
equitable tolling may sometimes offer an avenue for avoiding Suspension
Clause issues in the "rare case" where strict application of the one year
limitations period would create "an unreasonable burden." See Rodriguez
v. Artuz, 990 F.Supp. 275, 282-83 (S.D.N.Y.) (Sotomayor, J.), aff'd on
opinion below, 161 F.3d 763, 764 (2d Cir. 1998) (per curiam).2
Equitable tolling is available when "extraordinary circumstances" prevent a
prisoner from filing a timely habeas petition. Smith, 208 F.3d at 17. "In
addition, the party seeking equitable tolling must have acted with reasonable
diligence throughout the period he seeks to toll." Id. In this case, we need not
consider whether Warren was prevented from timely filing by extraordinary
circumstances. Instead, we hold that he failed to exhibit reasonable diligence
during the one year, eight and a half month interval between the dismissal of
his first petition and the filing of his second petition. Notably, Warren had six
and a half years after his conviction became final before he requested dismissal
of his first petition to consider additional claims that he could raise in collateral
state proceedings. The additional one year, eight and a half months it took
Warren to decide not to pursue his additional claims in state court and to file
instead a second habeas petition, essentially identical to the first, was
inexcusable. Therefore, we cannot view that period of inactivity as anything
other than a marked lack of diligence, rendering Warren ineligible for equitable
tolling.
2
Warren next argues that his second petition should be treated as having been
filed on the same day as his first petition under the "relation back" doctrine.
Under Fed. R. Civ. P. 15(c), "[a]n amendment of a pleading relates back to the
date of the original pleading when... the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading."
However, as two other courts of appeals have held in similar circumstances, the
"relation back" doctrine is inapplicable when the initial habeas petition was
dismissed, because there is no pleading to which to relate back. See Jones v.
Morton, 195 F.3d 153, 160-61 (3d Cir. 1999); Henry v. Lungren, 164 F.3d
1240, 1241 (9th Cir. 1999). The rule is not a mere technicality, but serves to
prevent prisoners from circumventing the limitations period imposed by the
AEDPA:
[I]f [the limitations period] were interpreted as Petitioner argues, the result
would be impractical. A habeas petitioner could file a non-exhausted
application in federal court within the limitations period and suffer a dismissal
without prejudice. He could then wait decades to exhaust his state court
remedies and could also wait decades after exhausting his state remedies before
returning to federal court to "continue" his federal remedy, without running
afoul of the statute of limitations.
Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999).
Because Warren's initial petition was dismissed, his refiled petition cannot
relate back to it and is therefore untimely.
Finally, Warren argues that his refiled petition should be treated as a motion for
relief from judgment, pursuant to Fed. R. Civ. P. 60(b). Even if Warren's
habeas petition were recharacterized as a motion for relief from judgment, the
motion would have to be denied.
Rule 60(b) provides six grounds for relief from judgment, only two of which
are pertinent here: "(1) mistake, inadvertence, surprise, or excusable neglect;...
or (6) any other reason justifying relief from the operation of the judgment."
Warren's failure to file in a timely manner could conceivably qualify as
"excusable neglect." However, Rule 60(b) specifically provides that a motion
for relief from judgment may be made "for reasons (1), (2), and (3) not more
than one year after the judgment... was entered." This limitations period is
"absolute," 12 James Wm. Moore, Moore's Federal Practice 60.65[2][a], at
60-200 (3d ed. 1997), so Warren's petition is untimely if treated as a motion
under Rule 60(b)(1).
The only remaining question is whether Warren's petition would warrant relief
under Rule 60(b)(6). However, Rule 60(b)(6) only applies if the reasons offered
for relief from judgment are not covered under the more specific provisions of
Rule 60(b)(1)-(5). See Liljeberg v. Health Serv. Acquisition Corp., 486 U.S.
847, 863 & n.11 (1988) ("Rule 60(b)(6)... grants federal courts broad authority
to relieve a party from a final judgment... provided that the motion... is not
premised on one of the grounds for relief enumerated in clauses (b)(1) through
(b)(5)."). In particular, Rule 60(b)(6) may not be used to circumvent the 1-year
limitations period that governs Rule 60(b)(1). See 12 Moore's Federal Practice
60.48[2]. Warren contends that he is entitled to relief "because [he] was never
informed of the effect of a dismissal on his ability to bring a subsequent
petition." However, appellant knew of the 1-year limitations period for habeas
petitions under the AEDPA, and his failure to timely refile (or to pursue his
additional state claims) is merely garden variety neglect. Because "excusable
neglect" is a ground for relief under Rule 60(b)(1), it cannot be considered
under Rule 60(b)(6). Therefore, Warren's petition, even if treated as a motion
under Rule 60(b), must be denied.
10
The district court's judgment is affirmed.
NOTES:
1
Although we refer to Warren's February 22, 1999 petition as his "second
petition," we do not mean that it was a "second or successive petition" as used,
for example, in 28 U.S.C. 2244, because his earlier April 21, 1997 petition
was dismissed without prejudice. See Slack v. McDaniel, 120 S.Ct. 1595, 160405 (2000).
2
Warren did not raise the Suspension Clause issue in his appellate brief.
Although he addressed the issue during oral argument in response to a question
from the panel, "[i]ssues not sufficiently argued in the briefs are considered
waived and normally will not be addressed on appeal." Norton v. Sam's Club,
145 F.3d 114, 117 (2d Cir. 1998). In any case, Warren cannot plausibly claim
that he was unreasonably burdened here, inasmuch as he had years to file his
federal petition, he was afforded a reasonable time after the enactment of
AEDPA to file, and he has given no satisfactory explanation as to why he was
unable to file his petition on time. See Rodriguez, 990 F.Supp. at 283.
