01-2687-pr
Diaz v. Kelly
01-2736-pr
Tan v. Bennett
02-2037-pr
Taylor v. Hodges




                          UNITED STATES COURT OF APPEALS

                              FOR THE SECOND CIRCUIT

                                 August Term 2007

Heard: December 11, 2007                         Decided: January 25, 2008

                   Docket Nos. 01-2687-pr,01-2736-pr, 02-2037-pr

- - - - - - - - - - - - - - - - -
ANGEL DIAZ,
     Petitioner-Appellant,

                    v.

WALTER KELLY, Superintendent of
Attica Correctional,
     Respondent-Appellee.
- - - - - - - - - - - - - - - - -
YOKE YEW TAN,
     Petitioner-Appellant,

                    v.

FLOYD G. BENNETT, Superintendent,
Elmira Correctional Facility,
     Respondent-Appellee.
- - - - - - - - - - - - - - - - -
WARREN TAYLOR,
     Petitioner-Appellant,

                    v.

GARY F. HODGES,
     Respondent-Appellee.
- - - - - - - - - - - - - - - - -

Before: NEWMAN, CARDAMONE, and CABRANES, Circuit Judges.

    Appeals from judgments of the United States District Courts for

the Western and Southern Districts of New York dismissing habeas

corpus petitions as time-barred.

    Affirmed as to Nos. 01-2687 (Diaz) and No. 01-2736 (Tan);

reversed and remanded as to No. 02-2037.

                        Gail Jacobs, Great Neck, N.Y., for Petitioner-
                          Appellant Diaz.

                        Loretta S. Courtney, Asst. District Atty.,
                          Rochester, N.Y. (Michael C. Green, Monroe
                          County District Atty., Rochester, N.Y., on
                          the brief), for Respondent-Appellee Kelly.

                        Randa D. Maher, Great Neck, N.Y., for
                          Petitioner-Appellant Tan.

                        Nicole Beder, Asst. District Atty., New York,
                          N.Y. (Robert M. Morganthau, N.Y. County
                          District Atty., Morrie I. Kleinbart,
                          Special Asst. District Atty., New York,
                          N.Y., on the brief), for Respondent-
                          Appellee Bennett.

                        Monica R. Jacobson, New York, N.Y., for
                          Petitioner-Appellant Taylor.

                        Tracy Siligmueller, Asst. District Atty.,
                          Bronx, N.Y. (Robert T. Johnson, Bronx
                          County District Atty., Nancy D. Killian, Na
                          Na Park, Asst. District Attys., Bronx,
                          N.Y., on the brief), for Respondent-
                          Appellee Hodges.


                                   -2-
JON O. NEWMAN, Circuit Judge.

     These three appeals from denials of petitions for writs of habeas

corpus all present variations of the issue of what circumstances toll

the one-year statute of limitations prescribed by the Anti-Terrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. §

2244(d). Angel Diaz appeals from the October 2, 2001, judgment of the

District Court for the Western District of New York (Hugh B. Scott,

Magistrate Judge).     Yoke Yew Tan appeals from the July 25, 2001,

judgment of the District Court for the Southern District of New York

(Gerard E. Lynch, District Judge).      Warren Taylor appeals from the

December 4, 2001, judgment of the District Court for the Southern

District of New York (Robert W. Sweet, District Judge).   Diaz and Tan

sought tolling on the ground that lack of proficiency in the English

language prevented them from timely filing their petitions.     Taylor

sought tolling because of the lack of notification of the denial of

his state court collateral attack.

     We conclude that English language deficiency can warrant tolling

of the AEDPA limitations period, but that Diaz and Tan have failed to

allege circumstances    establishing the due diligence required to

warrant tolling.     We also conclude that the state court’s lack of

notification and Taylor’s prompt filing after receiving a response to


                                  -3-
his inquiry to the state court justified tolling. We therefore affirm

in No. 01-2687 (Diaz) and No. 01-2736 (Tan), and reverse and remand

in No. 02-2037 (Taylor).

                                    Background

     Diaz.      Diaz,   who   asserts   that     he   is   “primarily   a   Spanish

speaker,” was convicted in New York Supreme Court of murder in 1992.

Because his conviction became final before the enactment of AEDPA, he

was entitled to file his federal petition for habeas corpus within a

one-year grace period from the Act’s effective date, April 24, 1996,

see Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir. 1998).                  His habeas

filing deadline was thus April 24, 1997, unless some portion of the

one-year     grace   period   was    subject     to   tolling.      Tolling     was

indisputably available for the interval during which Diaz’s state

court collateral challenge to his conviction, filed prior to the

enactment of AEDPA, was pending. See 28 U.S.C. § 2244(d)(2).                  That

interval ended on February 5, 1997.           Thus, the limitations period for

his federal habeas petition, unless further tolled, would have ended

on February 5, 1998, in order to afford Diaz the full one-year grace

period authorized by Ross.      Diaz filed the petition on June 29, 1998,

more than four months late.

     In response to an inquiry from the District Court as to why the


                                        -4-
petition was not time-barred, Diaz replied that he did not speak or

read English, that an inmate had assisted him in filing his state

court collateral challenge, and that “it took me a while to find

someone” to provide assistance with his federal court petition.

     The Magistrate Judge, to whom the matter had been referred,

initially deferred a ruling on timeliness in October 1998, and

ultimately dismissed the petition as untimely in September 2001.

     Tan.   Tan, who is of Malay origin and speaks a Chinese Cantonese

dialect, was convicted in New York Supreme Court of narcotics offenses

in 1995.    His conviction became final on July 8, 1998, after the

effective date of AEDPA.     Accordingly, he had until July 8, 1999 to

file his petition.    Tan filed his petition on May 4, 2000, nearly

eleven months late.    In July 1999, before he had filed his habeas

petition, but after his one year statutory period had already expired,

Tan sought to vacate the judgment of conviction pursuant to New York

Criminal Procedure Law Section 440.10.    He did so with the assistance

of an inmate who spoke Chinese and English.     The motion was denied,

as was leave to appeal.    Because his one year statutory filing period

had already expired, this subsequent state court collateral attack

does not toll the federal limitations period.     See Cf. Fernandez v.

Artuz, 402 F.3d 111, 116 (2d Cir. 2005) (“To toll the AEDPA statute


                                   -5-
of limitations, the state petition must be both ‘properly filed’ and

‘pending’ during the tolling period.”

     In response to two inquiries from the District Court as to why

the petition was not time-barred, Tan alleged lack of “a working

knowledge” of English and “difficult[y]” in finding interpreters in

the Department of Correctional Services. The District Court dismissed

the petition as untimely in July 2001.

     Taylor.   Taylor was convicted in New York Supreme Court of

manslaughter in 1996.   Taylor's conviction became final on April 13,

1998.   Taylor filed a state court coram nobis motion on April 23,

1998, which was denied by the Appellate Division on July 16, 1998.

Taylor filed a NYCPL § 440.10 motion on March 26, 1999, which was

denied on March 3, 2000, with leave to appeal denied on July 6, 2000.

Because state court consideration of these state collateral attacks

during a total of 527 days tolled his one year habeas limitations

period, Taylor had until October 17, 2000, to file his federal

petition, in the absence of any additional tolling.     He filed his

petition on February 1, 2001, about three and a half months late.

     In response to an inquiry from the District Court as to why his

petition was not time-barred, Taylor explained that he had not

received the Appellate Division’s July 6, 2000, order denying leave


                                 -6-
to appeal the denial of his section 440 motion, until January 31,

2001.    On that date he signed for legal mail at Gowanda Correctional

Facility, to which he had been transferred from Auburn Correctional

Facility, and picked up a letter from the Appellate Division, post-

marked January 27, 2001, which contained the Court’s July 6, 2000,

order.    The Court’s January 27, 2001, letter was sent in response to

an inquiry sent by Taylor to the Court on December 15, 2000. Taylor’s

federal petition was filed one day after he finally learned of the

state court’s July 6, 2000, order.

     The Appellate Division has no mail records showing a copy of its

July 6, 2000, order having been previously mailed to Taylor, and the

Auburn Correctional Facility shows no record of Taylor receiving any

legal mail while incarcerated there.

     The district court dismissed Taylor's petition as untimely in

November 2001.

     Certificates of appealability. In April 2006, this Court granted

motions for a certificate of appealability (“COA”) and appointed

counsel for Diaz and Tan to consider whether lack of proficiency in

English warranted tolling of the limitations period and whether they

had acted with due diligence during the periods they seek to toll.

We also granted a COA and appointed counsel for Taylor to consider


                                  -7-
whether unusual delay in receipt of the state appellate court’s

decision     denying   an   application   for   leave   to   appeal   warranted

equitable tolling of the limitations period and whether he had acted

with due diligence during the period he seeks to toll.1

                                  Discussion

     All three appeals present, in different contexts, the issue of

whether equitable tolling of the one-year limitations period of AEDPA

is available in the circumstances presented.             We have previously

recognized that equitable tolling can apply to the AEDPA limitations

period, see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), as have

all of the circuits that have considered the question, see Dunlap v.

United States, 250 F.3d 1001, 1004 n.1 (6th Cir. 2001) (collecting

cases).     To warrant equitable tolling, a petitioner must show “(1)

that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005); see Smith, 208 F.3d at 17 (same).

     Before determining the applicability of equitable tolling in the

three pending appeals, we pause to consider whether the doctrine

remains available to toll the AEDPA limitations period in light of the


     1
         The record does not disclose the reasons for the delays that

occurred in the District Court or this Court.

                                     -8-
Supreme Court’s recent decision in Bowles v. Russell, 127 S. Ct. 2360

(2007).   In Bowles the Court ruled that statutory time periods

limiting the time for filing a notice of appeal, being jurisdictional

in the strict sense, are not subject to equitable exceptions. See id.

at 2366-67.     Although the Court referred to “the jurisdictional

significance of the fact that a time limitation is set forth in a

statute,” id. at 2364, it would be an unwarranted extension of Bowles

to think that the Court was impliedly rendering equitable tolling

inapplicable to limitations periods just because they are set forth

in statutes.    Since a statute of limitations is a defense, see Fed.

R. Civ. P. 8(c), it has not been regarded as jurisdictional, see Day

v. McDonough, 547 U.S. 198, 205 (2006) (AEDPA limitations period), and

has been subject to equitable tolling, see Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 95-96 (1990).   We think it remains so

after Bowles.

     The Supreme Court’s recent decision in John R. Sand & Gravel Co.

v. United States, __ S. Ct. __ 2008 WL 65445 (U.S. Jan. 8, 2008),

confirms our view.     The Court there noted that most limitations

periods are non-jurisdictional affirmative defenses and are subject

to equitable tolling, see id. at __, 2008 WL at *3, and viewed the

limitations period governing suits against the United States in the


                                  -9-
Court of Federal Claims as jurisdictional only because a long line of

prior decisions had so held and were entitled to adherence under

principles of stare decisis, see id. at __, 2008 WL at *6.

      Language deficiency.       This Court has not previously considered

whether language deficiency qualifies as a circumstance warranting

equitable tolling, although the Ninth Circuit has indicated that

equitable tolling may be available upon a showing that a prisoner did

not speak English, his prison law library lacked legal materials in

his   native   language,   and    he   was    unable   to   obtain   translation

assistance before the one-year deadline.           See Mendoza v. Carey, 449

F.3d 1065, 1069-70 (9th Cir. 2006).             The Appellee in No. 01-2687

contends   that   language   deficiency       cannot   be   an   “extraordinary”

circumstance as required by tolling jurisprudence because of the high

proportion of prisoners with little or no ability to read English.

We think the proper inquiry is not how unusual the circumstance

alleged to warrant tolling is among the universe of prisoners, but

rather how severe an obstacle it is for the prisoner endeavoring to

comply with AEDPA’s limitations period.          For the prisoner who cannot

read English, the obstacle is undoubtedly serious, just as it would

be for a prisoner speaking only English incarcerated in a non-English-

speaking country, and can, in some circumstances, justify equitable


                                       -10-
tolling, see id.; cf. Brown v. Parkchester South Condos, 287 F.3d 58,

60-61 (2d Cir. 2002) (mental illness can justify equitable tolling of

Title VII time limit); Canales v. Sullivan, 936 F.2d 755, 758-59 (2d

Cir. 1991) (mental illness can justify equitable tolling of time limit

for SSI disability claim).

     This is not to say, however, that language deficiency must be

remedied by the State in any sense comparable to the obligation,

grounded in the Sixth Amendment, to provide an interpreter at trial.

See United States ex rel. Negron v. New York, 434 F.2d 386, 389-90 (2d

Cir. 1970).   On the contrary, the diligence requirement of equitable

tolling imposes on the prisoner a substantial obligation to make all

reasonable efforts to obtain assistance to mitigate his language

deficiency.

     Neither Diaz nor Tan have alleged efforts that satisfy the

diligence requirement.    Both have claimed nothing more than the

unavailability of personnel within their prisons who could translate

for them during the applicable limitations periods.      There is no

allegation of any efforts to contact anyone outside the prison who

might assist in making them aware, in their language, of legal

requirements for filing a habeas corpus petition, nor what efforts

were made to learn of such requirements within their places of


                                 -11-
confinement.   Equitable tolling was properly rejected in their cases.

     Lack of state court notice.    Taylor contends that he is entitled

to equitable tolling because the Appellate Division did not send him

notice of the June 6, 2000, order denying leave to appeal the denial

of his section 440.10 motion (the action that completed his exhaustion

of State Court remedies) until he inquired about the status of his

case on December 15, 2000, and he did not learn of the denial until

he received the Appellate Division’s response, postmarked January 27,

2001, on January 31, 2001.   The Appellee in No. 02-2037 has presented

no evidence that the Appellate Division notified Taylor soon after

issuance of its July 6, 2000, order, as required by local rule:

     Upon determination of the application the original record
     of proceedings shall be returned to the trial court
     together with a certified copy of the order entered upon
     the application; a certified copy of the order shall also
     be sent to the defendant at his address shown in the
     application.

McKinney's N.Y. Ct. Rules 606.5(c).       There is nothing in the record

to dispute Taylor’s contention that the Appellate Division’s notice,

postmarked January 27, 2001, for which he signed in prison on January

31, 2001, was the first notice from the that court of the June 6, 2000

order.    The Appellee has supplied no copy of an earlier notice, and

has made no claim that the January notice reflects that it is a second

notice.

                                   -12-
     Although we have ruled that the statutorily tolled period in

which     state   court   proceedings   are   “pending,”   see   28   U.S.C.

§ 2244(d)(2), does not include a brief interval between the entry of

a state court order and its receipt a few days later after prompt

mailing, see Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000)

(alternate holding), we have not considered whether a state court’s

failure to send notice within a reasonable time after entry of an

order completing a prisoner’s collateral attack can provide a basis

for equitable tolling.      Other circuits have concluded that prolonged

delay by a state court in sending notice of a ruling that completes

exhaustion of state court remedies can toll the AEDPA limitations

period.     See Jenkins v. Johnson, 330 F.3d 1146, 155 (9th Cir. 2003);

Miller v. Collins, 305 F.3d 491, 495-96 (6th Cir. 2002); Knight v.

Schonfeld, 292 F.3d 709, 711 (11th Cir. 2002); Woodward v. Williams,

263 F.3d 1135, 1142-43 (10th Cir. 2001); Phillips v. Donnelly, 216

F.3d 508, 511 (5th Cir. 2000).     We agree and conclude that the period

from June 6, 2000, until January 31, should be tolled.2


     2
         Unlike Geraci, which ruled that the statutory tolling provision

of the AEDPA limitations period ended upon the entry of a state

court’s order, rather than its subsequent receipt, 211 F.3d at 9,

equitable tolling in this case appropriately extends until Taylor’s

                                    -13-
     The State does contend that Taylor cannot have the benefit of

equitable tolling for lack of due diligence on his part. We disagree.

Taylor made inquiry to the Appellate Division on December 15, 2000,

which was nine months after he had sought leave to appeal the March

3, 2000, denial of his section 440.10 motion.            As the Sixth Circuit

has noted, “From a litigant’s perspective, it is a difficult, if not

impossible endeavor, to estimate how long a reviewing court will take

to decide a particular motion.”        Miller, 305 F.3d at 496.         We see no

point in obliging a pro se litigant to pester a state court with

frequent inquiries as to whether a pending motion has been decided,

at least until a substantial period of time has elapsed.           Taylor made

his inquiry to the Appellate Division slightly more than three months

after the end of the limitations period. See Miller, 305 F.3d at 496

(five and one-half month interval between limitations period and

discovery of state court ruling does not show lack of diligence;

Phillips,   216   F.3d   at   511   (four    month   interval);   cf.    Drew   v.

Department of Corrections, 297 F.3d 1278, 1287-88 (11th Cir. 2002)

(letter of inquiry filed sixteen months after filing of state court

application does not satisfy diligence).


receipt of the court’s order, in response to his reasonably prompt

inquiry.

                                      -14-
     Once Taylor became aware on January 31, 2001, that the Appellate

Division had denied him leave to appeal, he promptly filed his federal

habeas corpus petition the next day.      The Appellee suggests that

Taylor could have filed his petition earlier, within the AEDPA

limitations period, but had he filed it before June 6, 2000, the

petition would have been subject to dismissal for lack of exhaustion.

See Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Jenkins, 330 F.3d at

1155-56 (had petitioner “proceeded to file a federal habeas petition,

he ran the distinct risk that the federal petition would be dismissed

for failure to exhaust his claims in the state courts.”).   Surely due

diligence does not require prisoners to burden state officials with

the need to oppose federal petitions presenting unexhausted claims.

     Taylor is entitled to the benefit of equitable tolling.

                             Conclusion

     We affirm the dismissal of the petitions in Nos. 01-2687 (Diaz)

and No. 01-2736 (Tan) and reverse and remand for consideration of the

merits in No. 02-2037 (Taylor).




                                  -15-
