13-1154
Joseph v. Conway


                   UNITED STATES COURT OF APPEALS
                       FOR THE SECOND CIRCUIT

                             SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S
LOCAL RULE 32.1.1.   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").      A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 27th day of May, two thousand fourteen.

PRESENT:   ROSEMARY S. POOLER,
           REENA RAGGI,
           DENNY CHIN,
                     Circuit Judges.

- - - - - - - - - - - - - - - - - - - - - -x

ROY JOSEPH,
                       Petitioner-Appellant,

                       -v-                           13-1154

JAMES CONWAY, Superintendent,
                    Respondent-Appellee.

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FOR PETITIONER-APPELLANT:        GEORGIA J. HINDE, New York, New
                                 York.

FOR RESPONDENT-APPELLEE:         DIANE R. EISNER, Assistant
                                 District Attorney (Leonard
                                 Joblove, Amy M. Applebaum,
                                 Assistant District Attorneys, on
                                 the brief), for Kenneth P.
 


                               Thompson, District Attorney, Kings
                               County, Brooklyn, New York.


           Appeal from the United States District Court for the

Eastern District of New York (Mauskopf, J.).

           UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and

the case is REMANDED.

           Petitioner-appellant Roy Joseph appeals the district

court's judgment dated February 20, 2013, dismissing his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254.   By memorandum decision entered February 20, 2013, the

district court dismissed the petition as time-barred, concluding

that Joseph was not entitled to either statutory or equitable

tolling of the one-year statute of limitations set forth in 28

U.S.C. § 2244(d)(1).

           Joseph seeks relief from a 2002 New York State

conviction, following a jury trial, for murder in the second

degree, attempted murder in the second degree, and criminal

possession of a weapon in the second degree.   He is serving a

sentence of consecutive terms of imprisonment of twenty years to

life on the murder and attempted murder counts and a concurrent

term of ten years' imprisonment on the weapon count.

           This Court granted a certificate of appealability, see

28 U.S.C. § 2253(c), limited solely to whether Joseph's attempt

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to file a coram nobis petition in 2006 sufficed to toll the

limitations period and render his § 2254 petition timely.    We

assume the parties' familiarity with the facts and record of the

prior proceedings.

1.   Applicable Law

          The timeliness of a habeas petition presents a

question of law that we review de novo.     See Pratt v. Greiner,

306 F.3d 1190, 1195 (2d Cir. 2002) (citing Smaldone v.

Senkowski, 273 F.3d 133, 136 (2d Cir. 2001)).    Where the

district court makes factual findings relevant to an assessment

of timeliness under a provision of 28 U.S.C. § 2244(d), we

review those findings for clear error, see Hemstreet v. Greiner,

491 F.3d 84, 89 (2d Cir. 2007), but ultimately review de novo

the legal determination of whether on those facts the petition

was timely filed, see Fernandez v. Artuz, 402 F.3d 111, 112 (2d

Cir. 2005).

          The tolling provision of the Antiterrorism and

Effective Death Penalty Act ("AEDPA") provides:

          The time during which a properly filed application for
          State post-conviction or other collateral review with
          respect to the pertinent judgment or claim is pending
          shall not be counted toward any period of limitation
          under this subsection.

28 U.S.C. § 2244(d)(2).   Under § 2244(d)(2), therefore, a

petition is statutorily tolled from the time it is "properly

filed" and while it is "pending."     Id.

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          The limitations period in § 2244(d) may also be

"subject to equitable tolling in appropriate cases" --

specifically, where the petitioner shows "(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing."

Holland v. Florida, 560 U.S. 631, 645, 649 (2010) (internal

quotation marks omitted); see also Doe v. Menefee, 391 F.3d 147,

159 (2d Cir. 2004) ("To qualify for [equitable tolling], the

petitioner must establish that extraordinary circumstances

prevented him from filing his petition on time, and that he

acted with reasonable diligence throughout the period he seeks

to toll." (internal quotation marks omitted)).

          Under the "prison mailbox rule," a pro se prisoner's

notice of appeal is filed when he delivers it to prison

authorities for forwarding to the district court.   See Houston

v. Lack, 487 U.S. 266, 270-72 (1988).   We have extended the

prison mailbox rule to apply to prisoners' filings of coram

nobis petitions.   See Fernandez, 402 F.3d at 111-13, 116

(deeming coram nobis petition timely where it was placed in

prison mailbox two days before statutory deadline, but not

received until ten days after; delay was caused by the "prison's

mistaken belief that Fernandez's prison account had insufficient

funds to cover postage").



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2.   Application

             In the district court, Joseph filed an affirmation and

an affidavit, accompanied by certain documentary evidence.      He

stated that during the week of August 24, 2006, a "legal

research clerk assigned to assist [him] filed his writ of error

coram nobis with the Appellate Division, Second Department."

(App. 47).    Joseph was incarcerated at Attica Correctional

Facility at the time, and he (or his legal research clerk)

apparently filed his papers by handing them to a prison

official.    In June 2007, Joseph wrote the Clerk of the Court of

the Appellate Division, Second Department, to inquire as to the

"motion of Writ of Error Coram Nobis" he had "submitted" on

August 24, 2006.      (App. 49).   The Second Department responded on

June 19, 2007, advising that the court had not received his

motion.   By letter dated August 10, 2007, Joseph wrote the

Inmate Correspondence Office at Attica asking for information

about "legal papers" he had sent to the "Kings County Supreme

Court" in August 2006.     (App. 51).     Someone in the

Correspondence Office wrote back, confirming that "one free

legal envelope" went out for Joseph during the week of August

21, 2006, but that no record was made of to whom the envelope

was sent.    (Id.).




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             Joseph then sent a new set of coram nobis papers to

the Appellate Division on August 21, 2007.               The Appellate

Division denied the petition on November 27, 2007.

             Joseph acknowledges that his habeas petition would be

time-barred unless the limitations period is statutorily or

equitably tolled.1       On appeal, he argues that pursuant to the

prison mailbox rule, he filed the coram nobis petition with the

state court in August 2006 -- when he contends he submitted the

papers to the prison authorities -- and the petition remained

pending until the Appellate Division denied it on November 27,

2007.    Because the state court never received the petition,

however, the district court declined to apply the prison mailbox

rule, stating it did "not believe based on the record before it

that a coram nobis application was properly filed with the

Appellate Division."        Joseph v. Conway, No. 07-CV-05223 (RM),

2013 WL 632118 at *5 (E.D.N.Y. Feb. 20, 2013).

             We remand to the district court for amplification of

the record.      As noted in the certificate of appealability,

"[w]hat constitutes sufficient evidence of a properly filed

petition in compliance with the applicable law and rules

governing filing" is unsettled in this Circuit.                 (App. 69).

                                                            
               1
                             As Joseph's conviction became final for the purposes of
AEDPA on November 28, 2005, he had until November 28, 2006 to seek
habeas relief, unless he had (1) a pending state application for
collateral review or (2) grounds for equitable tolling. See 28 U.S.C.
§ 2244(d).

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Indeed, the question whether the prison mailbox rule is

available when the state court never receives an alleged filing

is unanswered in this Circuit, and other circuits have reached

different results.    Compare Ray v. Clements, 700 F.3d 993, 1008

(7th Cir. 2012) (setting forth burden-shifting standard, in

which petitioner must make prima facie showing of delivery

before burden shifts to state to disprove delivery), and Allen

v. Culliver, 471 F.3d 1196, 1198 (11th Cir. 2006) (per curiam)

(same), and Caldwell v. Amend, 30 F.3d 1199, 1202-03 (9th Cir.

1994) (same), with Grady v. United States, 269 F.3d 913, 916-17

(8th Cir. 2001) (placing "ultimate burden" on petitioner to show

he should "benefit from the [prison mailbox] rule").    We decline

to answer this question on the record before us, however,

because of the factual uncertainties.   See Grimo v. Blue

Cross/Blue Shield of Vt., 34 F.3d 148, 152-53 (2d Cir. 1994)

(remand is proper where factual record is "unclear").   Moreover,

depending on the answers to the factual questions, it may be

that the statutory tolling question need not be reached.

          First, the record contains conflicting evidence as to

whether Joseph sent his coram nobis petition to the Appellate

Division or to the Supreme Court, Kings County.   The district

court resolved the conflict against Joseph, even though he

submitted some evidence that he did send the papers to the

Appellate Division.   Second, although the Inmate Correspondence

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Office reported using one free legal envelope for Joseph during

the period he purportedly mailed his petition, the record is

unclear as to what was sent and where it was sent.     Indeed, as

the state conceded at oral argument, no effort was undertaken to

locate whatever prison mail logs exist.   Third, Joseph states in

his affidavit that "the legal research clerk assigned to assist

[him] filed his writ of error coram nobis petition."    (App. 47).

It is unclear who this "legal research clerk" was, and we cannot

discern whether he or she qualifies as a "prison authority"

within the meaning of the prison mailbox rule.   See

Knickerbocker v. Artuz, 271 F.3d 35, 37 (2d Cir. 2001)

(suggesting that the prison mailbox rule is unavailable where

the "delay . . . is not attributable to prison officials").

Finally, the record is unclear whether Joseph has a copy of the

coram nobis petition he allegedly filed in 2006.   Counsel argues

that a document apparently dated August 21, 2007 is the document

that Joseph submitted in 2006, with the "6" in 2006 altered to a

"7."   But this is just speculation, and further inquiry should

be made.   The district court essentially concluded that because

Joseph did not submit a copy, he must not have actually

submitted the original in 2006.    Again, the district court drew

an inference against Joseph.

           The State argues that the district court's order to

show cause of January 10, 2008 gave Joseph the opportunity to

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make a case for statutory or equitable tolling, but Joseph

failed to do so.        Joseph clearly attempted to make his case,

however, as he filed an affirmation, an affidavit, and

supporting documentation.           But some of the information he needed

was not in his possession, such as the mail log or other records

from the Inmate Correspondence Office, and some of Joseph's

statements were not as clear as they could have been.                      Because

he is incarcerated, Joseph is not in a position to carry out his

own investigation to substantiate his allegations.                    As Joseph's

pro se status entitled him to "special solicitude" and "liberal"

construction of his submissions, Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation

marks omitted) (per curiam),2 the district court should have

inquired further.        Accord Valentin v. Dinkins, 121 F.3d 72, 75-

76 (2d Cir. 1997) (holding that district courts must assist pro

se incarcerated litigants with their inquiry into the identities

of unknown defendants); Traguth v. Zuck, 710 F.2d 90, 95 (2d

Cir. 1983) (noting the "obligation on the part of the court to

make reasonable allowances to protect pro se litigants from

inadvertent forfeiture of important rights because of their lack

of legal training").


                                                            
               2
                             "It is well established that the submissions of a pro se
litigant must be construed liberally and interpreted 'to raise the
strongest arguments that they suggest.'" Triestman, 470 F.3d at 474
(quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).

                                           9 
 
 


           We remand to the district court for additional fact-

finding and to decide, on the basis of a more complete factual

record, whether Joseph is eligible for statutory or equitable

tolling.   If the facts do not support Joseph's contention that

he attempted to file a coram nobis petition in August 2006, the

question posed by the certificate of appealability may not need

to be reached.   If the facts do demonstrate that Joseph

"properly filed" his petition, then the district court shall

decide whether the statute of limitations was tolled.

           For the foregoing reasons, we VACATE the judgment of

the district court and REMAND for further proceedings.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk

 




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