Smith v. Superintendent

Filing 28

ORDER PROVIDING FOR SUPPLEMENTAL BRIEFING REGARDING EQUITABLE TOLLING BASED ON MENTAL ILLNESS: ORDERED THAT Smith has 30 days, or up to and including April 21, 2014, to file a supplemental brief detailing his equitable tolling claim. Smith must su pport his claim with evidence that his "particular disability constituted an 'extraordinary circumstance' severely impairing [his] ability to comply with the filing deadline, despite [his] diligent efforts to do so." Bolarinw a, 593 F.3d at 232. If Smith does not comply, or if he fails to come forward with sufficient evidence that equitable tolling is warranted, this Court will dismiss his Petition for Writ of Habeas Corpus as untimely. IT IS FURTHER ORDERED THAT Respondent has 30 days from the filing of Smith's supplemental briefing to file its response. (Supplemental Brief due by 4/21/2014) Signed by Judge James K. Singleton on 3/20/2014. (ptm) (Copy served on petitioner by regular mail)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
JEREMIE SMITH,
No. 9:13-cv-00454-JKS
Petitioner,
v.

ORDER PROVIDING FOR SUPPLEMENTAL
BRIEFING REGARDING EQUITABLE
TOLLING BASED ON MENTAL ILLNESS

STEVEN RACETTE, Superintendent,
Great Meadow Correctional Facility,1
Respondent.

Jeremie Smith, a New York state prisoner proceeding pro se, filed a Petition for Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Smith is currently in the custody of
the New York State Department of Corrections and Community Supervision and is incarcerated at
Great Meadow Correctional Facility.
Smith filed his Petition for Writ of Habeas Corpus with this Court on April 14, 2013. On
August 1, 2013, Respondent filed a motion requesting that it be permitted to limit its answer to
the issue of the timeliness of Smith’s Petition. This Court granted Respondent’s request and
required Respondent to also address in its answer whether there was a basis for equitable tolling
or otherwise extending the statute of limitations. Smith subsequently filed six affidavits in
support of his Petition. Respondent answered, arguing that Smith’s Petition was untimely,
equitable tolling did not apply, and Smith failed to make a gateway showing of actual innocence.

1

Steven Racette, Superintendent, Great Meadow Correctional Facility, is
substituted for Superintendent, Five Points Correctional Facility. FED. R. CIV. P. 25(c).
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Smith then filed a Traverse as well as two Supplemental Traverses. Because this Court granted
Respondent’s request to limit its response to timeliness, only timeliness is addressed here.
I. DISCUSSION
Smith’s Petition is untimely. The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d), imposes a one-year statute of limitations which runs from the
latest of four events: 1) the date on which the judgment became final by the conclusion of direct
review or the expiration of time for seeking direct review; 2) the date on which an impediment to
filing an application created by state action in violation of the Constitution or federal law is
removed; 3) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right is newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or 4) the date on which the factual predicate of the claim
or claims presented could have been discovered through due diligence. 28 U.S.C. § 2244(d)(1).
Only the first and fourth scenarios apply here.
A.

28 U.S.C. § 2244(d)(1)(A)
Smith’s judgment of conviction was entered on June 29, 2009, and he did not appeal. His

judgment became final 30 days later, on July 29, 2009, when the time for filing a notice of appeal
expired. See N.Y. CRIM. PROC. LAW (“CPL”) § 460.10. Smith had one year from that date to file
his Petition with this Court. Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (per curiam).
Smith filed his Petition with this Court on April 14, 2013, over 3 years and 8 months after that
deadline.

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B.

28 U.S.C. 2244(d)(1)(D)
Although Smith did not raise the issue in his Traverse or supplemental filings, Smith could

conceptually argue that the statute of limitations should not run from the date of entry of his
judgment of conviction because his attorney did not appeal on his behalf, which he now argues
amounted to ineffective assistance of counsel. The statute of limitations would instead run from
the date Smith knew, or should have known through due diligence, that his attorney did not file a
notice of appeal. According to the record, Smith filed a grievance against his attorney some time
in 2009 alleging, inter alia, that his counsel failed to file a notice of appeal on his behalf. On
November 19, 2009, Smith’s attorney sent a letter to the state grievances committee responding to
Smith’s allegations, in which he explained that he did not file a notice of appeal because he was
not aware that Smith had wanted to appeal, noting that Smith had pled guilty. That letter was
copied to Smith. In response to Smith’s answer to his letter, Smith’s attorney sent a second letter
again stating that he did not recall Smith indicating that he wanted to appeal since Smith pled
guilty, that according to his recollection Smith had waived his right to appeal, and that counsel
would have filed a notice on Smith’s behalf if he had been aware that Smith wanted to appeal.
Smith was again copied on that letter.2
Smith was therefore aware that his attorney did not file a notice of appeal on his behalf on
or before November 19, 2009, and pursuant to 28 U.S.C. § 2244(d)(1)(D), would have had until
November 19, 2010, to file his Petition with this Court. Had Smith acted diligently after
discovering his attorney did not file a notice of appeal, he would still have been able to file a

2

Although the letters are unsigned, Smith has included them and commented on
them in his filings, indicating their authenticity and that he received them.
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timely motion in state court for leave to file a late notice of appeal. CPL § 460.30(1). For the
purposes of discussing equitable tolling, infra, this Court assumes that the statute of limitations
began running on November 19, 2009, and that Smith therefore had until November 19, 2010, to
file his Petition with this Court.
C.

28 U.S.C. § 2254(d)(2): Statutory tolling
Even assuming that a motion to extend the time to file an appeal could statutorily toll the

limitations period, see Bethea, 293 F.3d at 579, Smith did not move pro se to file a late notice of
appeal until April 7, 2011. Smith also did not file his pro se motion to vacate the judgment until
February 9, 2012. Because both motions were filed after the expiration of the November 19,
2010, deadline, neither statutorily tolls the one-year filing deadline. Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000) (statutory tolling “excludes time during which properly filed state relief
applications are pending but does not reset the date from which the one-year statute of limitations
begins to run”); see De Los Santos v. Ercole, No. 07-cv-7569, 2013 WL 1189474, at *2 (S.D.N.Y.
Mar. 22, 2013) (motion to vacate the judgment neither restarts nor tolls statute of limitations
where it was filed after the one-year statute of limitations expired); Bowman v. Walsh, No. 07-cv3586, 2007 WL 2815711, at *1 (E.D.N.Y. Sept. 25, 2007) (statutory tolling applies only if a
petitioner’s post-conviction motion was pending within the one-year limitations period). Thus,
Smith is not entitled to statutory tolling, and his Petition can only survive if equitable tolling
applies.
D.

Equitable tolling
In Holland v. Florida, the Supreme Court held that 28 U.S.C. § 2254(d) is subject to

equitable tolling “in appropriate cases.” 560 U.S. 631, 645 (2010). A petitioner is entitled to
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equitable tolling only if he shows: 1) “that he has been pursuing his rights diligently,” and 2) “that
some extraordinary circumstance stood in his way” and prevented timely filing. Id. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Diaz v. Kelly, 515 F.3d 149, 153 (2d
Cir. 2008). The determination is made on a case-by-case basis. Holland, 560 U.S. at 649-50.
“The term ‘extraordinary’ refers not to the uniqueness of a party’s circumstances, but rather to the
severity of the obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648
F.3d 132, 137 (2d Cir. 2011) (citations omitted). A period of 886 days passed between November
19, 2010, the date on which Smith knew that counsel failed to file a notice of appeal on his behalf,
and April 14, 2013, the date on which he filed his Petition with this Court. Smith’s allegations
must support the conclusion that he was entitled to equitable tolling for all but 365 days of that
period, which would bring his Petition within the one-year filing deadline. Id. at 142 (timeliness
of petition subject to equitable tolling depends on its being filed within one year of the total
untolled time after the challenged conviction became final).
As an initial matter, Smith’s assertions that he is proceeding pro se, is ignorant of the law
and legal procedure, and was at times without access to writing materials or a law library, do not
warrant equitable tolling either individually or when viewed cumulatively. See Smith, 208 F.3d at
18 (pro se status does not merit equitable tolling); Green v. Sheehan, No. 1:12-cv-0665, 2014 WL
338832, at *5-6 (W.D.N.Y. Jan. 30, 2014) (below-average intelligence and lack of knowledge
about governing law or AEDPA are not “extraordinary circumstances”); Madison v. Hulihan, No.
09-cv-337, 2012 WL 1004780, at *4 (E.D.N.Y. Mar. 23, 2012) (ignorance of AEDPA’s statute of
limitations in light of petitioner’s pro se status does not warrant equitable tolling); Lizaide v.
Kirkpatrick, 09-cv-5038, 2009 WL 4110296, at *2 (E.D.N.Y. Nov. 24, 2009) (“Ignorance of the
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law and lack of education are not sufficient grounds to warrant equitable tolling.”); Bowman, 2007
WL 2815711, at *2 (illiteracy, pro se status, and ignorance of law and rules of court have been
“consistently” rejected as “extraordinary circumstances” warranting tolling “since they apply to
most inmates”); Francis v. Miller, 198 F. Supp. 2d 232, 235 (E.D.N.Y. 2002) (petitioner’s
assertions that he has limited education, is ignorant of the law and legal procedure, lacked funds to
hire another attorney, had limited access to legal assistance that was available to prisoners, and
was allowed limited use of the prison law library were not extraordinary circumstances that
warrant equitable tolling).
Similarly, Smith’s assertion that counsel failed to file a notice of appeal on his behalf is
not an “extraordinary circumstance” warranting tolling. See Sanford v. Lee, No. 11 Civ. 5714,
2012 WL 3062692, at *1 (S.D.N.Y. July 25, 2012) (petitioner’s argument that counsel was
ineffective for failing to submit a timely post-conviction motion does not rise to the level of
ineffective assistance of counsel warranting equitable tolling); Bowman, 2007 WL 2815711, at *2
(failure of counsel to file a notice of appeal was not an extraordinary circumstance; “Not every
petitioner appeals his conviction, especially where, as here, the petitioner pled guilty. Nor is an
appeal a necessary prerequisite to filing a timely habeas petition. Moreover, a diligent person in
petitioner’s circumstances would have discovered that no appeal had been filed.”); Baldayaque v.
United States, 338 F.3d 145, 150-153 (2d Cir. 2003) (attorney error alone does not constitute
extraordinary circumstances for purposes of equitable tolling); Francis, 198 F. Supp. 2d at 235
(“The mere fact that counsel declined to continue to represent petitioner does not justify
petitioner’s inaction for almost three years.”). Only where counsel’s conduct is “outrageous or . . .
incompetent” will it be considered extraordinary. Baldayaque, 338 F.3d at 152 (while “attorney
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error normally will not constitute the extraordinary circumstances required to toll the AEDPA
limitations period . . . at some point, an attorney’s behavior may be so outrageous or so
incompetent as to render it extraordinary”). Smith’s counsel’s conduct does not reach that high
bar. Cf. Nickels v. Conway, 480 F. App’x 54, 56-57 (2d Cir. 2012) (finding an extraordinary
circumstance based on counsel’s failure to file a habeas petition despite repeated direction to do
so, providing erroneous information about the importance of the statute of limitations, providing
false assurances about petition’s progress, and failing to communicate with the petitioner); Dillon
v. Conway, 642 F.3d 358, 363-64 (2d. Cir. 2011) (finding an extraordinary circumstance based on
attorney “affirmatively and knowingly misleading [petitioner] by promising him that he would file
the petition before” the deadline); Baldayaque, 338 F.3d at 152 (attorney behavior was
extraordinary due to his failure to file a habeas petition after being specifically instructed to do so,
failing to complete any research on the case, failing to provide petitioner with a reasonable level
of information, and failing to explain the matter to the extent necessary to make an informed
decision).
The Second Circuit has, however, held that AEDPA’s one-year limitations period can be
tolled on the basis of a petitioner’s mental condition, depending on “how severe an obstacle [the
illness] is for the prisoner endeavoring to comply with AEDPA’s limitations period.” Bolarinwa
v. Williams, 593 F.3d 226, 231-32 (2d Cir. 2010). As the Ninth Circuit has recognized, the
Bolarinwa court “did not give content to its severity standard,” leaving its development to the
district court’s “‘highly case-specific inquiry’” on remand. Bills v. Clark, 628 F.3d 1092, 1098
(9th Cir. 2010) (quoting Bolarinwa, 593 F.3d at 232); see also Victorial v. Burge, 477 F. Supp. 2d
652, 654-55 (S.D.N.Y. 2007) (the Second Circuit “adheres to a case-specific approach” and has
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not developed a “bright line rule in determining when equitable tolling should apply in cases of
mental illness”). It is the petitioner’s burden to establish the appropriateness of tolling by offering
a “particularized description of how [his] condition adversely affected [his] capacity to function
generally or in relationship to the pursuit of [his] rights.” Bolarinwa, 593 F.3d at 232 (quoting
Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). The Second Circuit has suggested that in
order to warrant an equitable toll on the basis of mental illness, a petitioner must show that “he
was so incapable of rational thought that he could not appreciate his situation, or [that he] lacked
the wherewithal to ascertain that he must take legal steps.” Rios v. Mazzuca, 78 F. App’x 742,
744 (2d. Cir. 2003); Bowman, 2007 WL 2815711, at *3. Smith must show that his “particular
disability constituted an ‘extraordinary circumstance’ severely impairing [his] ability to comply
with the filing deadline, despite [his] diligent efforts to do so.” Bolarinwa, 593 F.3d at 232.
In support of his argument that he is entitled to equitable tolling, Smith argues that he has
been diagnosed with a “serious mental illness,”3 that he has been prescribed various mental health
medications, and that he is “a mentally ill pro se litigant with a very limited knowledge of the law,
[and he] didn’t fully understand the time limit surrounding a habeas corpus petition.” Smith
further alleges that during 2010 and 2011 he was incarcerated at various psychiatric facilities and
that he was also “subjected to long term mental health strip cell confinement.” Smith states that at
least one of the psychiatric facilities did not have a law library and that he was not allowed access

3

The New York State Office of Mental Health (“OMH”) provides services in
correctional facilities to mentally ill inmates who require psychiatric treatment. See Justice v.
Fischer, 903 N.Y.S.2d 791, 792 (N.Y. App. Div. 2010) (citing N.Y. CORRECT. LAW § 401). The
treatment needs of a particular inmate are determined following an assessment performed by
OMH personnel. Id. A “service level one” recipient suffers from a “major/serious mental
illness” with active symptoms requiring treatment. Id.
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to pen, paper, or legal materials during some of his strip cell confinement. Smith appears to argue
that he was incarcerated at a mental health unit and/or strip cell confinement for 712 of the 886
days from the time the statute of limitations began running until the time he filed his Petition with
this Court.4 In support of his claim, Smith has submitted a host of documents, including copies of
prescriptions, outpatient psychiatric progress notes, letters from legal advocates about his mental
health, grievances about his treatment, and nursing and psychiatric center monitoring charts.
Although Smith’s submissions suggest that he has indeed struggled with mental health
issues, the submissions are largely unexplained. They offer little detail as to the severity of
Smith’s mental illness, the time line of his condition, and how, if at all, his condition affected his
ability to function in general or in relation to the pursuit of his legal rights. See Bolarinwa, 593
F.3d at 232. Most of the submissions deal with Smith’s psychological fear of choking and his
progress on soft or liquid diets, a condition which in and of itself would not amount to an
extraordinary circumstance.
In addition, Smith’s assertion that he took mental health medication is insufficient on its
own to warrant tolling. See Smith v. Lee, No. 11 Civ. 8376, 2013 WL 2467988, at *10 (S.D.N.Y.
June 7, 2013); Jean-Louis v. Greiner, No. 02 Civ. 6326, 2003 WL 1807144, at *3 (S.D.N.Y. Apr.
4, 2003) (“The statement that petitioner takes psychotic medication does not satisfy his burden to
4

January 6, 2010, to April 22, 2010 (106 days); July 14, 2010, to September 22,
2010 (70 days); September 22, 2010, to November 2, 2010 (41 days); November 7, 2010, to
November 8, 2010 (1 day); December 10, 2010, to December 23, 2010 (13 days); December 27,
2010, to January 3, 2011 (7 days); January 7, 2011, to January 13, 2011 (6 days); January 13,
2011, to February 9, 2011 (27 days); April 13, 2011, to May 2, 2011 (19 days); July 14, 2011, to
April 22, 2013 (648 days). The total is 938 days. However, only the days between November
19, 2010, the date he knew his attorney failed to file a notice of appeal on his behalf, and April
14, 2013, the date on which he filed his Petition with this Court, are relevant. That amounts to
712 days.
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show that this medication left him incapacitated or otherwise unable to pursue his rights.”);
Madison, 2012 WL 1004780, at *3 (petitioner failed to provide any evidence, other than his own
assertions, that psychotropic medications incapacitated him and prevented him from timely filing
his petition). Smith must detail how being on those medications prevented him from timely filing
his Petition.
Confinement in a psychiatric facility within the New York state prison system, on its own,
is also insufficient to justify tolling. See Jean-Louis, 2003 WL 1807144, at *3. Rather, Smith
must show that his confinement prevented him from pursuing his legal rights. Id.; see also
Corrigan v. Barbery, 371 F. Supp. 2d 325, 330 (W.D.N.Y. 2005) (“In general, the difficulties
attendant on prison life, such as transfers between facilities, solitary confinement, lockdowns,
restricted access to the law library, and an inability to secure court documents, do not by
themselves qualify as extraordinary circumstances.”); Saldana v. Artuz, No. 99 Civ. 5089, 2000
WL 1346855, at *2 (S.D.N.Y. Sept. 19, 2000) (spending six months in “lock down” is not an
extraordinary circumstance warranting tolling).
Moreover, Smith’s conduct indicates that he was, to some extent, capable of pursuing his
legal rights despite his alleged mental illness and psychiatric confinement. Notably, Smith filed
his pro se motion to vacate the judgment in state court on February 9, 2012, his pro se application
seeking leave to appeal that denial on November 27, 2012, and his Petition for Writ of Habeas
Corpus with this Court on April 14, 2013, while he was allegedly in psychiatric confinement.
Smith also filed his pro se motion for leave to file a late notice of appeal on April 7, 2011, in
between periods of his alleged psychiatric confinement. He also filed a 42 U.S.C. § 1983 civil
action against 40 DOCCS staff members of the Five Points Correctional Facility Mental Health
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Unit for alleged abuse he suffered while incarcerated there between July 14, 2011, and April 22,
2013. Smith has not addressed how he was able to file these various claims both during and
between psychiatric confinement and yet was unable to comply with the AEDPA filing deadline.
Smith’s conduct cuts against any argument that “he was so incapable of rational thought that he
could not appreciate his situation, or [that he] lacked the wherewithal to ascertain that he must
take legal steps.” Rios, 78 F. App’x at 744.
Smith, therefore, has not yet provided sufficient detail about his mental illness to justify
equitable tolling. See Boos, 201 F. 3d at 185 (“The burden of demonstrating the appropriateness
of equitable tolling . . . lies with the plaintiff.”). However, he has alleged sufficient
facts—including the provision of records substantiating mental health issues—to indicate that
equitable tolling may plausibly be justified in this case. Bolarinwa, 593 F.3d at 232 (remanding
to district court to allow the petitioner to present evidence in support of her claim for equitable
tolling based on mental illness); Artis v. Hulihan, No. 09 Civ. 9893, 2010 WL 4668926, at *6
(S.D.N.Y. Nov. 12, 2010) (granting petitioner 30 days to file a supplemental affirmation where he
alleged sufficient facts to indicate that equitable tolling may be justified, but failed to provide
sufficient detail to meet his burden); Bowman, 2007 WL 2815711, at *3 (granting petitioner 30
days to file a supplemental affirmation where the court was unable to ascertain if the petitioner’s
alleged mental illness prevented him from timely filing his petition). This Court hereby grants
Smith 30 days to file a supplemental brief addressing the applicability of equitable tolling to his
case. To prevail on his equitable tolling claim, Smith must show that his mental illness amounted
to an extraordinary circumstance which prevented him from timely filing his Petition, and that he
acted with reasonable diligence throughout the time period he seeks to toll. He may not rely on
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personal conclusions or assumptions, but must support his allegations with evidence. Bowman,
2007 WL 2815711, at *4. He must show that he was unable to pursue his legal rights during the
entire period he seeks to toll. Respondent has 30 days after the filing of Smith’s supplemental
brief to respond.
II. CONCLUSION
IT IS THEREFORE ORDERED THAT Smith has 30 days, or up to and including April
21, 2014, to file a supplemental brief detailing his equitable tolling claim. Smith must support his
claim with evidence that his “particular disability constituted an ‘extraordinary circumstance’
severely impairing [his] ability to comply with the filing deadline, despite [his] diligent efforts to
do so.” Bolarinwa, 593 F.3d at 232. If Smith does not comply, or if he fails to come forward
with sufficient evidence that equitable tolling is warranted, this Court will dismiss his Petition for
Writ of Habeas Corpus as untimely.
IT IS FURTHER ORDERED THAT Respondent has 30 days from the filing of Smith’s
supplemental briefing to file its response.
Dated: March 20, 2014.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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