05-6875- pr

Belot v. Burge

1 UNITED STATE S COURT OF APPEA LS 1 FOR THE SEC OND CIRC UIT 2
August Term, 2006 3 (Argued: April 11, 2007 Decided: June 20, 2007) 4 5
Docket No. 05-6875-pr 6

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- - - -X 7 JEAN M. BELOT, JR., 8 Petitioner-Appellant , 9

-v.- 10 JOHN W. BURGE, 11 Respondent-Appellee

. 12 13

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- - - X 14 15 16 17 Before: WINTER, LEVAL , and CABRANES, Circuit Judges

. 18 Petitioner appeals from the denial of his petition for a wr it of habeas corpus under

28 U.S.C. 19 § 2254, seeking to overturn his New York State conviction for CriminalPossession of a Weap on in 20 the Third Degree. The United States District Court for the Southern District of

Ne w Y or k ( Pa ul ey, 21 J.) denied the petition as untimely. Petitioner argues that the district court should have excused the 22 lateness by equitable tolling. We affirm the judgment of the district court. 23
B RIAN SHEPPARD, New Hyde Park, NY , for 24 Petitione r-Appell ant. 252 BRIDGET

RAHIL LY STELLER, Chief Assistant 1 Di st rict Attorney of Dutc

hess County (William V. 2 Gr ad y, D i strict Attorney, on the brief ), Poughkeepsie, 3 NY, for Respondent-Appellee

. 4

LEVAL , Circuit Judge : 5 Petitioner Jean M. Belot appeals from the denial by the United States District Court for 6 the Southern District of New York (Pauley, J.), of his petition for writ of habeas corpus, seeking 7 to set aside his New York State conviction for Criminal Possession of a Weapon in the Third 8 Degree. The district court, following the recommendation of Magistrate Judge Michae l H. 9 Dolinger, found that the petition was two days late and thus dismissed it as time-barred. See 10 Belot v. Burge , No. 03-civ-1478 (S.D.N.Y. Sept. 19, 2005). Belot does not deny that his petition 11 was late, but argues that the district court should have given him the benefit of equitable tolling. 12 We affir

m the judg

ment of the

district c ourt. 13 BACKGROUND 14 Belot was indicted in the Supreme Court of New York for se cond-degree murder a nd 15 criminal possession of a weapon in the second and third deg rees. The jury

found him guilty of 16 criminal possession of a weapon in the third degree , and not guilty on the other counts. The 17 court sentenced Belot, as a persistent violent felony offender, to an indeterminate prison term of 18 twenty y

ears to life. 19 After Belot was unsuccessful in his direct appe al, he filed a motion under New York 20 Criminal Procedure Law § 440.10 to vac ate his judgment on March 30, 2001. That same day he 21 executed his first petition under 28 U.S.C. § 2254. On July 30, 2001, Belot moved to withdraw 221 Judge Fox’s order s tated the fo llow ing:

11/1/99 New Yor

k Court of A

ppeals de nies lea ve to appe al. 1/30/00 90 days to seek c ertiorari from U.S. Supreme Court lapses; oneyear limitation commence s. Acosta v. Artuz , 221 F.3d 117, 120 (2d Cir. 2000). 8/23/00 Petitioner

files coram nob is applica tion in Appe llate Division to ra is e c la im of

in ef fe ct iv e a ss is ta nc e o f a pp el la te co un se l; 20 6 d ays have elapsed; tolling begins. Clark v. Stinson , 214 F.3d 315, 319 (2d Cir. 2000). 1/29/01 Appellat

e Division

denies coram nob is applica tion; tolling

ends. 3/30/01 Petitioner notarizes § 440.10 application to the state trial court; 60

day s have el apsed; to lling be gins. 4/10/01 Petitioner’s habeas petition is received in this court . . . . Conclusion: Total elapsed time is 266 days, which mea ns that petitioner has 99 da ys i n which to

file his ne

w petition

following

the exhaustion of sta

te remedie s. Petitioner is hereby ale

rted to what should be obvious. To eliminate a challenge to the new petition’s timeliness, Petitioner should commence the new suit in this Court by insuring that the papers ar rive at this Court prior to the expiration of the 99-day time per iod. Belot v. Walker, No. 01-civ-3433, at *3-4 (S.D.N.Y. Mar. 8, 2002) (footnote omitted). 3 the petition in order to exhaust remedies in the State courts. Magistrate Judge Mark D. F ox 1 issued an order dismissing the petition without prejudice. See Belot v. Walke r , No. 01-civ-3433 2 (S.D.N.Y. Mar. 8, 2002). In that orde r, Judge Fox provided a chronology of relevant dates and 3 events to help Belot calculate how many days rema

ined before expiration of his one-y ear 4 limitation period under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 5 Pub. L. No. 104-132, 110 Stat. 1214. 1 See 28 U.S.C. § 2244(d)(1) (“A 1-y ear period of limitation 6 shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the 7 judgmen

t of a State

court.” ). The or

der advi sed Bel ot that “[t]ot al elaps ed time is 2 66 days, 84

which means that petitioner has 99 days in which to file his new petition following the 1 exhaustion of state remedies.” Belot , No. 01-civ-3433, at *3. Belot replied by letter: “Petitioner 2 takes notice of the total elapsed time of 266 day s, which the Court considerately totaled for the 3 petitione

r. Petitioner is informed tha t he has 99day s in which t o file the petition on

ce state 4 remedies are exhausted.” 5 After Magistrate Judge Fox issued his order, Be lot’s § 440.10 application remained 6
pen di ng i n st ate cou rt, fur th er t ol li ng t he l im it ati on p eri od f or t he f il in g of th e fe der al p eti ti on. In 7 a decision and order dated June 23, 2002, the County Court of Dutchess County denied the § 8 440.10 motion. The New York State Supreme Court, Appellate Division, Second Judicial 9 Department denied Belot’s application for lea ve to appeal the denial on September 18, 2002. At 10 that point, his limitation period began again to run. According to Magistrate Judge Fox’s 11 calculation, Belot had until December 27, 2002, to file his petition. He filed his petition on 12 January 2, 2003. When he filed his new pe tition, it was assigned to Magistrate Judge Michael H. 13 Dolinger. Magistrate Judge Doling er disagreed with Magistra te Judge Fox’s calculation. Under 14 Magistrate Judge Dolinger’s ca lculation, Belot had until December 31, 2002, to file his petition. 15 Thus under either calculation, Belot’s petition was untimely

. 16 Belot does not dispute that his petition was untimely. He ar gues instead that he should be 17 excused under the doctrine of equitable tolling because the Auburn Correc tional Facility, wher

e 18 he was incarce

rated a t the time o f his filin

g, was u nder a lo ckdown f

rom Dece mber 17, 2 002, to 19 December 23, 2002, and as a result, he was denied access to the law library . He claims he was 20 therefore unable to complete the final version of his pe tition. Because he believed his petition 212 This was c onfirmed by a letter w ritten by a La w Libr ary Office r: A check of our records show[s] that I nmate Belot was granted Special Access to the L aw L ibrary

during t he month of

Decemb er, 2002 , but that Access was dela ye d due to a s ecurity

shut-dow n of the e ntire fa cility operati ons. As per F acility

Policy and Proc edure, a

n inmate is

grante d Special

Access for per iods of five (5) da

ys u pon each request. That Ac cess did n ot begin until Decemb er 27, 20 02, when f acility operati ons retur

ned to nor

mal. After the facility

was reopened, I

nmate Belot was then scheduled for Special Access from December 28, 2002 throug h January 4, 2003.

5 was due by De cember 27, 2002, Belot had requested and be en granted Special Access to the 1 prison law library f or several days in December, permitting him to use the library for longer 2 hours than otherwise would have been the case. A s a result of the lockdown, however, Belot 3 alleges that his access to the library was very substantially diminished until December 28, 2002. 2 4 Believing that he would not be able to meet his Dece mber 27, 2002 deadline, Belot wrote a letter 5 to the Pro SeClerk of the district court on December 26, 2002, say ing that his petition would be 6 delayed due

to the lockdown and asking for an extension. The court never acted on this request. 7 As noted, he filed his petition on January 2, 2003. 8 Magistrate Judge Fox rejected Be lot’s claim of entitlement to equitable tolling. See Belot 9 v. Burge , No. 03-civ-1478 (S.D.N.Y. Jul. 14, 2005). The magistrate judge gave two grounds. 10 First, lockdowns were sufficiently routine that they did not qualify as an “extraordinary 11 circumstance” necessary to justify equitable tolling; and second, notwithstanding the lockdown, 12 Belot could have filed “an unpolished – but timely – petition,” id . at *19, and, in any event, 136

knowing that he ha

d approxima

tely 99 days from the

conclusi on of his c ollatera l appeal to file his 1 petition, Belot should not have waited so long to work on his petition. Accordingly , the 2 magistrate judge recommende d the dismissal of the petition as time-barred, and the district court 3 ruled accordingly

. 4 DISCUSSION 5 We have held that “in rare and exceptional circumstance s a petitioner may invoke the 6 courts’ power to equitably toll the limitations period.” Doe v. Menefee , 391 F.3d 147, 159 (2d 7 Cir. 2004)

(quotation marks om

itted). “ To qualif

y f or such tr eatment,the petiti oner must 8 establish that extraordinary cir cumstances prevented him from filing his petition on time, and 9 that he acted with reasonable diligence throughout the period he seeks to toll.” Id . (quotation 10 marks omitted). 11 A thre shol d ques tion is wha t stan dard o f revi ew we sh ould apply whe n revi ewing a 12 district court’s denial of equitable tolling as to a petition under the Antiterrorism and Ef fective 13 Death Penalty Ac t of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. I n Baldayaque v. 14 United States , 338 F.3d 145 (2d Cir. 2003), we reviewed the district court’s finding of fact for 15 clear error and applied de novo review to the district court’s analysis of a controlling legal 16 question. Id . at 151. That case, however, did not involve our circumstance s, where the district 17

cour

t denied e quita

ble to lling

not a s a ma

tter of la w, bu t as a n exer cise of its discr etion . We 18 decide t

his as a ma

tter of f irst impre ssion in our

Circuit. 19 Other circuits are divided on the applicable standar d of review for equitable tolling 20 determinations und er AEDPA

of questi ons other

than find ings of f act. Some

circuits have he ld 213 In Brinson , the c ourt e xpl ained its r eason for fi ndin g de novo review to be the

appropriate standard: First, a District Court does not have any comparative advantage in dec iding whether particular circumstances are e xtraordinary enoug

h to warrant the application of the doctrine. Second, reversal of a District Court's r uling on this issue will not lead to a retrial or any other

comparably bur

densome proceedings. Third, de novo revie w leads to greater uniformity in the application of the doctr ine and better serves the goal of e nsuring that the doctrine is indeed used “sparingly ” and is not employed to upset the strong concern for finality embodied in 28 U.S.C. § 2254. Brinson , 398 F.3d at 231. 7 that when the facts are undisputed, the district court’s decision on equitable tolling is reviewed de 1

novo . See Brinson v. Vaughn , 398 F.3d 225, 231 (3d Cir. 2005) (Alito, J.) (noting but not 2 holding that “we are inclined to believe that wher e, as here, the relevant facts are not disputed, a 3 District Court’s decision on the question whether a case is sufficiently ‘extraordinary’ to justify 4 equitable tolling should be reviewed de novo .”); 3 Wade v. Battle , 379 F.3d

1254, 1264

n.11 (11th 5 Cir. 2004) (“We review de novo a district court’s decision on equita ble tolling .”); Dunlap v. 6 United States , 250 F.3d 1001, 1007 n.2 (6th Cir. 2001) (“In this Circuit, we hold that wher e the 7 facts are undisputed or the distri ct court rules as a matter of law tha

t equitab le tolling

is 8 unavailable, we apply the de novo standard of review to a district court’s refusa l to apply the 9 doctrine of equitable tolling; in all other cases, we apply the abuse of discretion standard.” 10 (emphas is added) ); Miles v. P runty , 187 F.3d 1104, 1105 (9th Cir. 1999) (“[W]here, as here, the 11 facts are undisputed as to the question of equitable tolling, we re view de novo . . . .”). 12 Other circuits have held that the district court’s decision on equitable tolling is re viewed 13 for an abuse of discretion. See Cordle v. Guarino , 428 F.3d 46, 47 (1st Cir. 2005) (“We review 148

the district court’s decision regarding equitable tolling in this habeas case for abuse of 1 discreti on.”); Burger v . Scott, 317 F.3d 1133, 1138 (10th Cir. 2003) (“[W]e review the district 2 court’s decision on equitable tolling of the limitation period for an abuse of discr etion.”). 3 Several Circuits, however, take a third approac h and provide for de novo review when the district 4 court denies equitable tolling as a matter of law, and a buse of discretion in other circumstances 5 where the court’s decision is based on exercise of discr etion. See Rouse v. Lee , 339 F.3d 238, 6 248 (4th Cir. 2003) (“[W]here the relevant facts are undisputed and the district court denied 7 equitable tolling as a matter of law, we revie w the district court’s decision de novo . In all other 8 circumst

ances, we revie

w the den ial of eq uitable to lling for an abus e of discretion.” (emphas is 9 added)) ; United Sta tes v. Sar o , 252 F.3d 449, 455 n.9 (D.C. Cir. 2001) (“We have examined 10 whether the court was ‘correc t,’ rather than whether it ‘abused its discretion,’ bec ause we employ 11 de novo r

eview when a distr

ict cour t holds - a s the cour

t appears to have d

one here - that the facts 12 cannot ju stify

equitabl e tolling

as a matte

r of law. ”); Molo v. Johnson , 207 F.3d 773, 775 ( 5th 13 Cir. 2000) (reviewing a district court’s denial of e quitable tolling for abuse of discretion but 14 noting that de novo review applies where district court denies equitable tolling as a matter of 15 law); cf. Jihad

v. Hvass , 267 F.3d 803, 806 n.3 (8th Cir. 2001) (ruling that in a case wher e the 16 dist rict c ourt d enied equit able t olli ng as a m atter of law , “we ha ve revi ewed i ts rul ing de novo .”). 17 We believe that the appropriate standard of revie w depends on the aspect of the decision 18 which is under review. A rule of law that gives the court discretion to grant an equitable 19 exception in extraordinary circumstances seems almost inherently to invite the court’s discretion 20 in apply

ing thes e standa

rds. The balanci ng of fa ctors involved in de

termining what res ult is 219

equitabl e and the

apprais al of whe

ther the circumst ances a re suff iciently extraord inary seem to 1 contemplate that in the same set of facts, different re sults could be acceptable. I n such 2 circumstances, courts often say that appellate review is for “abuse of discr etion.” See, e.g. , 3 Ashcroft v. American Civil Liberties Union , 542 U.S. 656, 664 (2004) (“This Court, like other 4 appellate courts, has always applied the abuse of discretion standard on review of a preliminary 5 injunction .”) (inte rnal cita tions omitte d); Columbia Pictures Industries, Inc. v. American 6 Broadcas ting Cos. , 501 F.2d 894, 897 (2d Cir. 1974) (“[W]hile another judge might have arrive d 7 at a different result, we cannot say that this result constitutes an abuse of the wide discretion 8 normally acc orded a district court on the issue of preliminary relief.”). But that label in a way 9 obscures more than it reveals. The operative r eview standard in the end will depend on what 10 aspect of the lower court’s decision is challenged. If a district court denie s equitable tolling on 11 the belief that the decision was compelled by law, that the governing leg al standards would not 12 permit equitable tolling in the circumstances – that aspect of the de cision should be reviewed de 13

novo . If the decision to deny tolling was premised on an incorrect or inacc urate view of what the 14 law requires, the decision should not stand. Courts generally in such circumstances state that 15 application of an incorrect standard of law is an “ abuse of discretion.” See, e.g. , Koon v. United 16 States , 518 U.S. 8 1, 100 (19 96) (“A district c ourt by

definition abuses i

ts discre tion when it 17 makes an error of law.”). Considering a second aspect, if the decision to deny tolling was 18 premised

on a factual findi

ng, the factua l finding should be r

eviewe d for cle ar err

or. Fina lly,if 19 the court has understood the governing la w correctly , and has based its decision on findings of 20 fact which were supported by the evidence, but the challenge is addr essed to whether the court’s 214 The Supreme Court in Koon also said “[t]hat a departure decision, in an occasional case,

may call for a lega l determi nation doe s not mean , as a con sequenc e, that pa rts of the review m ust be labeled de novo while other parts are labeled an abuse of discretion.” Koon , 518 U.S. at 100. Since the Court also held that “[a] district court by definition abuses its discretion whe n it makes an error of law,” id ., we do not believe that the Court meant that issues of law are addre ssed other than de novo , just that in recognizing the different aspects of a decision, the overall standard of review is for “abuse of discretion.” 10 decision is one of those within the range of possible permissible decisions, then appellate review 1 will be, not only

in name, b

ut also in o

peration, for ab

use of dis cretion . The re

viewing court wil l 2 recognize that in theory the lower court has numerous options open to it and its decision must be 3 sustained unless the particular facts and circumstance s are such as to make the particular dec ision 4 an abuse of discretion. See Zervos v. Verizon N.Y. Inc. , 252 F.3d 163, 169 (2d Cir. 200 1). Thes e 5 three distinct potential aspects of a decision and the concomitant ty pes of review are collected 6 under the label “abuse of discretion.” See, e.g. , Koon , 518 U.S. at 100 (“The abuse-of-discretion 7 standard includes review to determine that the discretion was not g uided by err

oneous legal 8 conclusions.”). 4 9 Our holding today is consistent with our precedent in Baldayaque . In that case, the 10 district court ruled as a matter of law that Second Circuit prece dent precluded it from apply ing 11 equitable tolling where the “extraordinary circumstances” claimed were a result of malfeasance 12 by the petitioner’s attorne y. Baldayaque , 338 F.3d at 151. We ruled that, where the district court 13 denies equitable tolling as a matter of law, the denial should be r eviewed de novo

. Id

. 14 In this case, the magistrate judge’s recommendation, which the district court a dopted, was 15 based on two grounds – one of which was discre tionary, the other a

rguably a matter of law. The 16 discretionary g

round was that the petitioner ought reasonably to have begun his preparation 1711

earlier and filed “an unpolished – but timely – petition” rather than “wait[] to file his [more 1 polished] petition until the week that the deadline expired.” Belot v. Burge , No. 03-civ-1478, at 2 *19 (S.D.N.Y. Jul. 14, 2005). The court’s other reason was that temporary lockdowns are 3 sufficiently routine that they do not, as a matter of law, justify a finding of an “extraordinary 4 circumstance,” which is a necessar y predica te for equitable tolling. Id . at * 17. 5 We review the discretionary ground for abuse of discretion and find that this decision was 6 within the district court’s reasonable discretionary parameters. We recognize that in Valverde v. 7 Stinson , 224 F.3d 129 (2d Cir. 2000), our court said in dictum that the petitioner was not 8 ineligib le for e quitable tolling “ simply

because he waite d until late

in the limita

tions per iod to 9 file his habeas petition.” Id . at 136. We went on to say that “[a] petitioner should not be faulted . 10 . . for failing to file early or to take other extraordinary precautions early

in the limitations period 11 against what are, by definition, rare and exceptional circumstances that occur later in that 12 period.” Id . We understand this to mean that the petitioner was not ineligible, as a matter of 13 law , for equ

itable tol ling bec ause the

petitione r waited until late in the limita

tions per iod. I t did 14 not mean that a district court may never take such timing into consideration. I t was not error for 15 the distri ct court

to make a

discreti onary

assessme nt that Be lot ought

to have st

arted hi s 16
prepar

ation ea rlier an d filed a n unpolishe d petition w

ithin the a

llotted time , rather

than wait to 17 file until after the deadline had expired. 18 Because we believe this first g round was within the court's reasonable discre tion, we do 19 not reach the district court's alternative g round that a prison lockdown could not qualify as an 20
extr aordi nary circu mstan ce warra ntin g equit able t olli ng. 2112 CONCLUSION 1 The judgment of the district court is hereby affirmed. 2