Tаiwu JENKINS, Petitioner-Appellant, v. Gary GREENE, Respondent-Appellee.
Docket No. 09-3623-pr.
United States Court of Appeals, Second Circuit.
Decided: Dec. 23, 2010.
As noted above, the transfer of data has become a burgeoning business, with those engaged in such transfers frequently having no intention of engaging in expressive or communicative conduct. For the reasons set forth above, I am unwilling to accept the majority‘s conclusiоn that such business operations have an inherent right to invoke the First Amendment as a shield against reasonable regulation simply because their business deals in “dry information” rather than dry goods. Moreover, I express serious concern that the majority‘s discussion not only of the First Amendment interests at issue here but also of the standard imposed by Central Hudson will make it unduly and inappropriately difficult for states to properly and constitutionally regulate in furtherance of substantial interests, including a state‘s very serious interest in the protection of private information.
I would thus affirm section 17 as a legitimate restriction on access to information and commercial conduct with few, if any, attenuated effects on First Amendment activity. Alternatively, even were I to conclude that section 17 restricts First Amendment activity, in applying Central Hudson, I would afford far greater deference to the eminently reasonable legislative judgments the state has made here in furtherance of several substantial state interests and the reasonably proportional response its statute effects. Accordingly, I respectfully dissent.
Taiwu JENKINS, Petitioner-Appellant, v. Gary GREENE, Respondent-Appellee.
Docket No. 09-3623-pr.
United States Court of Appeals, Second Circuit.
Argued: April 15, 2010.
Decided: Dec. 23, 2010.
Ashlyn Dannelly (Barbara D. Underwood, Solicitor General; Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY, for Respondent-Appellee.
Before: B.D. PARKER, LIVINGSTON, and LYNCH, Circuit Judges.
Judge PARKER dissents in a separate opinion.
GERARD E. LYNCH, Circuit Judge:
Petitioner-appellant Taiwu Jenkins was sentenced in 2000 to two consecutive twenty-five year prison terms after a jury convicted him of two counts of assault in the first degree for slashing two victims’ faces with a razor blade. In 2005, Jenkins filed a pro se motion in state court, seeking to vacate his judgment of conviction on the ground that his trial attorney had not accurately informed him of his sentence exposure, and that, had the attorney done so, Jenkins would have accepted a plea offer from the government rather than go to trial. After the state courts denied his
BACKGROUND
On August 10, 2000, Taiwu Jenkins was sentenced to two consecutive prison terms of twenty-five years, after being found guilty by a jury of two counts of assault in the first degree. The conviction arose from an incident in October 1998 in which Jenkins asked two peоple for change inside a grocery store in upper Manhattan. After the two refused, Jenkins argued with them, followed them outside the store, and slashed both victims’ faces with a razor blade. Each needed approximately 150 stitches to close the resulting wounds.
Jenkins unsuccessfully appealed his conviction to the Appellate Division. See People v. Jenkins, 302 A.D.2d 247, 756 N.Y.S.2d 151 (1st Dep‘t), leave to appeal denied, 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 (2003). Jenkins subsequently filed a pro se petition for a writ of habeas corpus in the Southern District of New York, raising the same arguments against his conviction that he made in his direct appeal. The district court granted Jenkins‘s request for appointment of counsel. Jenkins‘s counsel then asked the district court to stay the petition while Jenkins exhausted state court remedies “relating to an ineffectivе assistance of counsel argument.” The district court dismissed the petition on May 13, 2005, with leave to reopen.
Two months later, in July 2005, Jenkins moved pro se in state court under
Jenkins included with his motion two letters: one from Jenkins to Smith dated April 17, 2005, and a reply from Smith dated April 21, 2005. The April 17 letter repeatedly questions Smith why he failed to tell Jenkins that his total sentencing exposure was fifty years, and asks Smith for any assistance he could offer, but does not ask for an affidavit or other formal statement from Smith verifying that he had not told Jenkins of his full sentence
The state court denied Jenkins‘s motion on October 27, 2005. Jenkins sought leave to appeal from the denial of his motion, asserting that in May 2005 he had requested an affidavit from Smith attesting that he had not informed Jenkins of his sentence exposure, but that Smith had not responded to the request. The Appellate Division denied leave to appeal on June 6, 2006.
Almost three weeks later, Jenkins filed a second pro se habeas corpus petition in the Southern District of New York. He again raised his original challenges to his conviction, but added an ineffective assistance of counsel claim based on Smith‘s failure to inform him of his sentence exposure. In September, Jenkins wrote to the court that he had obtained new evidence with respect to his prior state-court motion, and requested that the federal habeas petition be held in abeyance until the state court had ruled on his renewed motion. The district court granted the stay, conditioned on Jenkins‘s return to the district court within thirty days of exhausting his state remedies.
Meanwhile, Jenkins moved in state court to renew his
Twenty days after the Appellate Division ruling, Jenkins informed the district court that he had exhausted his ineffective assistance claim. In January 2008, Jenkins retained new counsel, who filed supplemental papers dropping all but the ineffective assistance claims and including a supplemental affidavit by Jenkins stating that he had not been informed that his total sentence exposure was fifty years. Counsel also attached an affirmation by Dominic J. Profaci, who briefly represented Jenkins before his indictment, stating that in his brief representation of Jenkins, he did not recall discussing sentence exposure with him.
After the government submitted a memorandum of law arguing that the ineffective assistance claim was untimely, Jenkins argued in reply that he was entitled to equitable tolling. Jenkins submitted further supplemental materials with his reply, including an affirmation by Jenkins‘s wife stating that Smith had told Jenkins his sentence exposure was around ten years and two letters from Jenkins to Smith dated July 25, 2003 and February 18, 2004, both requesting an affidavit.
The district court dеnied Jenkins‘s petition as untimely. See Jenkins v. Greene, 646 F. Supp. 2d 615 (S.D.N.Y. 2009). The court found that while Jenkins had until October 15, 2004 to file a petition raising his ineffective assistance of counsel claims, he did not file that claim until June 29, 2006. Id. at 620. The court also rejected Jenkins‘s argument that his ineffective assistance of counsel claim related back to his initial petition pursuant to Federal
DISCUSSION
I. Standard of Review
The Supreme Court recently confirmed that equitable tolling applies to the 1-year limitations period contained in
II. Analysis
A federal habeas corpus petition must be filed within one year of the latest of four dates, in Jenkins‘s case October 15, 2003, when his time to seek a writ of certiorari to the Supreme Court expired.4 See
Tolling of the limitations period is applied only in “rare and exceptional” circumstances. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). A litigant seeking equitable tolling must show both that he “diligently” pursued his rights and that “some extraordinary circumstance ... prevented timely filing.” Holland, 130 S. Ct. at 2562 (internal quotation marks omitted); see also Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010). A petitioner seeking equitable tolling must “demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
We need not address whether Jenkins was diligent in pursuing his rights, as his argument for equitable tolling fails on the second element: Jenkins has not shown that an extraordinary circumstance stood in the way of his pursuing his ineffective assistance of counsel claim. Jenkins argues that he faced an extraordinary circumstance because, in order to present his claim of ineffective assistance of counsel to the New York courts (as he was required to do in order to exhaust his state remedies before seeking federal relief), New York law required him to provide an affidavit from the attorney whose effectiveness is being disputed, and he faced “particular difficulties” obtaining such an affidаvit from Smith.
It is simply not true, however, that New York law required defendants to present an affidavit from the allegedly ineffective counsel. The very cases on which Jenkins himself relies are clear that the New York courts do not inflexibly require that defendants claiming ineffective assistance must present a supporting affidavit from the challenged attorney. No doubt recognizing that obtaining such an affidavit may prove difficult, the New York courts have expressly stated that either an affidavit from counsel or an explanation of why such an affidavit is not available is acceptable. That is the specific holding of People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983), the New York Court of Appeals decision that Jenkins maintains created the affidavit requirement:
Because defendant failеd to submit an affidavit from the attorney who represented him at plea and sentence or offer an explanation of his failure to do so, it cannot be said that as to defendant‘s failure to appeal the coram nobis Judge erred in denying the application without a hearing.
Id. at 1009, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (emphasis added).
Indeed, in 2001, the First Department held that summary denial of a
It is true that ordinarily a complete record adduced through a motion to vacate the judgment of conviction pursuant to
CPL 440.10 , which includes an affidavit from trial counsel explaining his or her trial tactics, is necessary in order to properly evaluate a claim of ineffeсtive assistance of counsel. The failure to present such an affidavit from the attorney or an explanation for the failure to do so has been held to justify denial of a defendant‘s motion without a hearing. In the instant case, however, defendant provided a viable explanation for the failure to include such affidavit—i.e., counsel‘s disbarment prior to defendant‘s bringing the motion, buttressed by the complaint filed with the Grievance Committee regarding Rojas’ conduct. It was, therefore, an abuse of discretion for the court to summarily deny defendant‘s Section 440.10 motion on the basis of this procedural deficiency.
People v. Gil, 285 A.D.2d 7, 729 N.Y.S.2d 121, 125 (1st Dep‘t 2001). New York courts have repeatedly recited the rule
A requirement that a defendant alleging ineffective assistance of counsel must either submit an affidavit from his attorney or an explanation of why he cannot present such an affidavit from his attorney is not an extraordinary circumstance that “prevented [Jenkins from] timely filing” his claim for relief. Holland, 130 S. Ct. at 2562. Jenkins could have timely filed his motion in state court accompanied by a sworn statement explaining that he was unable to secure an affidavit from Smith because Smith had failed to provide one despite Jenkins‘s repeated timely requests.6 He therefore cannot show a caus
As our dissenting colleague points out, this conclusion is harsh in that it prevents Jenkins from challenging an extremely severe sentence that may very well have been the result of an ineffective attorney.7 That, however, is the consequence of Congress‘s decision to impose a limitations period on petitions for habeas corpus. Such limitations statutes by their nature preclude sympathetic or meritorious claims as well as frivolous ones. And the doctrine of equitable tolling does not permit us to excuse compliance with the statute whenever a potentially meritorious claim is at stake, or whenever a petitioner faces an especially severe sentence. Nor does that doctrine allow tolling whenever a petitioner must face the daunting procedural obstacles to obtaining habeas review without the assistance of counsel. See Smith, 208 F.3d at 18 (holding that petitioner‘s pro se status did not merit equitable tolling), citing Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (“We have held that neither a plaintiff‘s unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling.“). Although we are mindful that equitable procedure demands flexibility in the approach to equitable intervention, see Holland, 130 S. Ct. at 2563, that flexibility cannot stretch beyond the requirement that an extraordinary circumstance prevent timely filing. Jenkins did not file his federal petition within the allowable time limit, and his explanation for his failure to do so boils down to the claim that he was thwarted by a mistaken reading of New York case law to impose a requirement that did not in fact exist. Under the law, such a mistaken belief is not a basis for equitable tolling.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
B.D. PARKER, JR., Circuit Judge, dissenting:
Because I believe that Jenkins‘s petition was entitled to the benefits of equitable tolling, I respectfully dissent. The majority‘s approach in my view incorporates two significant errors. It incorrectly analyzes a confusing body of New York case law dealing with the procedural prerequisites to pursuing an ineffective assistance of counsel claim in state court. And more importantly, it fails meaningfully to engage in the equitable analysis required by Holland v. Florida,
Although the majority declines to determine the appropriate standard of review, I think the district court‘s decision to deny equitable tolling should be reviewed de novo since it was based on an incorrect interpretation of what the law required. The district court held that petitioner‘s inability to satisfy a state law requiring that he provide an attorney affidavit in order to seek post-conviction relief on the grounds of ineffective assistance of counsel could not constitute an extraordinary circumstance. In the district court‘s view “holding that such a state law requirement constitutes an extraordinary circumstance would mean that every petitioner claiming ineffective assistance of counsel would be able to equitably toll their claim pending receipt of an affidavit.” See Belot, 490 F.3d at 207-08 (finding district court decision that temporary prison lockdown could not qualify as an extraordinary circumstance warranting equitable tolling was “arguably a matter of law“). After Holland, which was decided after the district court‘s opinion, this analytically rigid approach employed by the district court is no longer appropriate. As Justice Breyer pointed out, courts considering whether to toll AEDPA‘s limitations period are courts of equity whose hallmarks are “flexibility,” the avoidance of “mechanical rules,” and the recognition that “specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.” Holland, 130 S. Ct. at 2563 (citations omitted). The district court should have, but did not, examine the equities specific to Jenkins‘s application. Instead, it treated him as a stereotypical applicant. Applying the correct governing legal standard, I believe that Jenkins was entitled to equitable tolling. See Belot, 490 F.3d at 206-07.
A petitioner seeking equitable tolling must show (1) that extraordinary circumstances prevented him from filing his petition on time, and (2) that he acted with reasonable diligence in pursuing his rights during the period he seeks to toll. Holland, 130 S. Ct. at 2562; Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008); Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003). Jenkins, in my view, meets both parts of this test.
As to the first part, Jenkins believed, quite reasonably, that in order to bring an ineffective assistance of counsel claim in state court, he was required to provide an affidavit from Oliver Smith, his trial attorney, concerning the advice or strategy being challenged. Jenkins pursued the affidavit but, despite diligent efforts, was unable to reach his lawyer for nearly two years. For example, in a letter to Smith dated July 25, 2003, approximately one week after Jenkins‘s application for leave to appeal his state court conviction was denied, Jеnkins wrote, “Mr. Smith you never told me I was facing 50 years
The New York case law on whether an attorney affidavit is actually required under these circumstances is, charitably stated, confused. Any reasonably cautious lawyer reviewing the New York case law on this issue could easily conclude that such an affidavit was required or that, at a minimum, proceeding without such an affidavit was an imprudent step that courted summary denial of the application. Similarly, a pro se petitioner, attempting to parse this body of case law could easily have concluded that an affidavit or other explanation from the attorney whose assistance is being challenged was required, and that failure to provide one would have been fatal to an ineffective assistance of counsel claim. For example, in 1998, the First Department found a defendant‘s motion to vacate his conviction under
Ironically, the state‘s opposition to Jenkins‘s section 440.10 motion criticized him for not presenting an attorney affidavit. In that opposition, the government emphasized the absence of the affidavit and speculated that the reason for Jenkins‘s failure to attach one was “because defendant knew that if he asked, trial counsel would reply that they had, indeed, discussed maximum and minimum sentences.” J.A. 72-73. However, on appeal, after the affidavit was provided and the speculation
Unsympathetic to Jenkins‘s petition, the majority makes muсh of their view that New York state courts do not “inflexibly” require that defendants claiming ineffective assistance present a supporting affidavit from the challenged attorney. Majority Op. 302-03; See also Jenkins v. Greene, 646 F. Supp. 2d 615, 622 (S.D.N.Y. 2009) (“[S]uch a requirement is neither statutorily required nor always applied by New York courts” (emphasis added)). The majority cites to cases where New York courts require either an attorney affidavit or an explanation for its absence, and suggest that in lieu of the affidavit, Jenkins should have supplied such an explanation in a sworn statement accompanying his affidavit. The fact that New York courts may not “inflexibly” require such an affidavit sidesteps the fact that some courts apparently do and some do not. My reading of the case law is that such an affidavit probably should be submitted. The majority believes that such an affidavit need not be submitted. If court of appeals judges can honestly disagree over this point of law it seems to me wrong for a court of equity to close the court to a pro se litigant who happened to find himself on the wrong side of this debate. This is especially so where the cost of his choice is an additional forty years of incarceration for a man who, as indicated below, may well have received constitutionally ineffective assistance of counsel. Where equity is the point of departure, this constellation of circumstances is, I believe, extraordinary.
As to the second part of the equitable tolling analysis, I have littlе difficulty concluding that Jenkins acted with “reasonable diligence” during the period that he seeks to toll. In order to secure the affidavit, Jenkins wrote Smith at least five letters, four of which included an explicit request for a supporting affidavit, and two of which were sent prior to the expiration of the statutory period for bringing a habeas petition. His efforts were certainly reasonable for a prisoner with relatively limited means of communication. Holland, 130 S. Ct. at 2565 (“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” (internal citations and quotation marks omitted)); Baldayaque, 338 F.3d at 153 (“The standard is not ‘extreme diligence’ or ‘exceptional diligence,’ it is reasonable diligence.... [T]he district court should ask: did the petitioner act as diligently as reasonably could have been expected under the circumstances?” (emphasis in original)).
The significant backdrop to this analysis is that had Jenkins been permitted to file his petition, he, on the basis of the record as it now stands, would have presented a compelling case that he received constitutionally ineffective representation. At trial Jenkins was convicted of two counts of assault and sentenced to two consecutive twenty-five year prison terms for a total sentence of fifty years. In his affidavit submitted to the district court in support of his habeas petition, Jenkins maintained that Smith did not inform him that his total sentencing exposure was fifty years. Jenkins argues that Smith conveyed two sepаrate plea offers of eight and seven years to him prior to trial. However, based on Smith‘s advice that Jenkins would likely have received a ten to twelve year sentence if he lost at trial, and that he had a “50-50” chance of acquittal, Jenkins declined both plea offers. Notably, Jenkins also submitted to the district court an affirmation from Smith confirming that he communicated various plea offers to Jenkins, but that he “did not inform Mr. Jenkins that his exposure was 50 years.” These facts stand uncontradicted on the current record.
With respect to the second prong, “a defendant‘s statements that he would have accepted a plea offer in combination with some objective evidence, such as a significant sentencing disparity, is sufficient to support a prejudice finding.” Brown, 623 F.3d at 112 (citation and quotation marks omitted). Here, Jenkins has averred that he would have accepted the plea offer if he knew the length of the sentence he otherwise would have faced. Thus, as a result of apparently inadequate assistance from his trial counsel at a crucial stage of the proceedings, Jenkins is serving what the majority concedes is an “extrеmely severe” sentence that apparently could have been four or five times shorter had he been appropriately counseled. Majority Op. 304-05.
Holland emphasizes that the role of courts sitting in equity is to “relieve hardships which, from time to time, arise from a hard and fast adherence to more absolute legal rules....” Holland, 130 S. Ct. at 2563 (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248, 64 S. Ct. 997, 88 L. Ed. 1250 (1944)). Holland also emphasizes that “[t]he flexibility inherent in equitable procedure enables courts to meet new situations that demand equitable intervention, and to accord all the relief necessary to correct particular injustices.” Id. (internal quotation marks and alterations omitted). This Court has similarly recognized that “[u]nder common law principles it is well established that equitable discretion may sometimes be exercised to avoid harm to a party that would be the consequence of the unflinching application of legal principles.” Fin. One Pub. Co. Ltd. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 344 (2d Cir. 2005). The majority‘s approach, I respect-fully suggest, neither recognizes nor applies any of these principles which, in my view, tilt sharply in Jenkins‘s favor.
At the end of the day Jenkins‘s petition might well fail. Most do. However, before being required to spend an additional forty years incarcerated as a result of what could well have been constitutionally ineffective assistance of trial counsel, I would permit his petition, at the very least, to be received and examined by the district court.