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 PetitionerAppellant.

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.
2

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.
3

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 firstdegree 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
1 The parties dispute whether the habeas petition was filed on May 23, 2008 or

September 30, 2008. We need not and do not resolve this issue here.

4

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. 
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

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. 
6

DISCUSSION

The legal question on appeal is straightforward. Under the AntiTerrorism 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 postconviction 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).
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).

7

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
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

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.
5The 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.

9

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
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.

10

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
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)).

11

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
12

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
13

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
14

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.