10-4601-pr
Williams v. Ercole

                           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 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 3rd day of July, two thousand twelve.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

ROBERT WILLIAMS,

                                      Petitioner-Appellant,

                        -v.-                                               10-4601-pr

ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN
CORRECTIONAL FACILITY,

                                      Respondent-Appellee.


Appearing for Appellant:       Brian Sheppard, Law Office of Brian Sheppard, New Hyde Park,
                               N.Y.

Appearing for Appellee:        Rither Alabre, Assistant District Attorney (Robert T. Johnson,
                               District Attorney, Bronx County, Joseph N. Ferdenzi, Assistant
                               District Attorney, on the brief), Bronx, N.Y.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Batts, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Petitioner Robert Williams appeals from a judgment of the United States District Court
for the Southern District of New York dismissing his petition for a writ of habeas corpus under
28 U.S.C. § 2254 as time-barred under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), see 28 U.S.C. § 2244(d). We assume the parties’ familiarity with the underlying
facts and procedural history.

        On appeal, Williams presses four arguments in the alternative: (1) Williams was entitled
to equitable tolling principally with respect to the period he lacked access to the prison law
library; (2) his lack of access to the library constituted an “impediment . . . in violation of the
Constitution,” restarting the limitations period under 28 U.S.C. § 2244(d)(1)(B); (3) Williams’s
receipt of information from his grandmother restarted the limitations period under 28 U.S.C. §
2244(d)(1)(D); and (4) dismissal of the petition as untimely would violate the Suspension
Clause, U.S. Const. Art. I, § 9, cl. 2. We conclude that the district court properly dismissed the
petition, and we therefore affirm.

        First, as to equitable tolling, AEDPA’s limitations period may be equitably tolled only if
a petitioner demonstrates both that extraordinary circumstances prevented timely filing and that
he acted with reasonable diligence during the period he seeks to have tolled. Holland v.
Florida,
---U.S.----, 130 S. Ct. 2549, 2562 (2010); Harper v. Ercole, 648 F.3d 132, 136-38 (2d Cir. 2011).
This Court applies a three-level standard of review depending on the basis of the district court’s
decision: “If the decision not to toll is made as a matter of law, then the standard of review is de
novo. If the decision is based on a factual finding, the standard is clear error. If the court has
understood the law correctly, and has based its decision on findings of fact supported by
evidence, then the standard is abuse of discretion.” Saunders v. Senkowski, 587 F.3d 543,
549-50 (2d Cir. 2009).

        We conclude that Williams was not entitled to equitable tolling because he did not carry
his burden of demonstrating reasonable diligence during the period he lacked access to the
library. Williams averred that he inquired as to the status of his library request on two
occasions, but, as the government notes, he provided no evidence or allegation that he actually
told prison officials of his impending deadline. Moreover, Williams neither alleged nor
presented evidence that the prison did not allow inmates with imminent court deadlines to obtain
priority access to the library. This lack of evidence is fatal to Williams’s equitable tolling claim;
a reasonably diligent petitioner in Williams’s position would have informed officials that he
needed to access the library before the limitations period expired. Williams urges us to overlook
this lack of evidence of diligence because the government did not raise the issue below, but
“[w]e may . . . affirm on any basis for which there is a record sufficient to permit conclusions of
law.” Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks
omitted); see also Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 302 (2d Cir. 1996)
(recognizing that we may consider an issue raised for the first time on appeal if there is no need
for additional fact finding). Here, the record is sufficient to allow us to conclude as a matter of
law that, even construing all the allegations and evidence in Williams’s favor, he failed to raise a
factual issue as to whether he was reasonably diligent. See Iavorski v. U.S. INS, 232 F.3d 124,
134 (2d Cir. 2000) (concluding party failed to exercise due diligence as a matter of law).



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        Williams argues in the alternative that he was entitled to statutory tolling under 28 U.S.C.
§ 2244(d)(1)(B) because the lack of library access deprived him of his constitutional right of
access to the courts under Bounds v. Smith, 430 U.S. 817 (1977). Williams concedes that he
raises this issue for the first time on appeal, but asks that we consider it in light of, inter alia, his
pro se status below. Even if we considered this new argument, we would reject it because
Williams failed to present sufficient allegations or evidence of a constitutional violation. “To
establish a violation [of the right of access to the courts], the inmate must demonstrate that . . .
shortcomings in the library or legal assistance program hindered his efforts to pursue a legal
claim.” Bourdon v. Loughren, 386 F.3d 88, 93 (2d Cir. 2004) (internal quotation marks and
alterations omitted). Williams asserts that “the prison did not provide a mechanism to give
Williams access to the library in light of his impending AEDPA deadline,” but this factual claim
is unsubstantiated by the record below. Williams relies on the magistrate judge’s observation
that there was “no indication that Williams could have requested that his callout be deemed a
priority.” But the lack of evidence as to one factual claim does not constitute evidence that the
opposite is true. The record was opaque as to whether the prison did or did not provide a
mechanism to give priority library access to inmates with deadlines.1 Since Williams has the
burden of demonstrating the constitutional violation, the lack of evidence accrues to Williams’s
detriment, not the government’s; without evidence that the prison did not accommodate
deadlines, Williams could not have satisfied his burden of demonstrating an “impediment” under
Section 2244(d)(1)(B) even if the district court had construed his equitable tolling argument as
raising such a claim. We also reject Williams’s Suspension Clause argument because it relies on
the same unsubstantiated claim as Williams’s Section 2244(d)(1)(B) argument. Cf. Warren v.
Garvin, 219 F.3d 111, 113 n.2 (2d Cir. 2000) (rejecting argument that Suspension Clause
required permitting petitioner to file untimely petition, on ground that petitioner could not show
that his ability to file was “unreasonably burdened”).

        Finally, Williams argues that his petition was timely under 28 U.S.C. § 2244(d)(1)(D),
which resets the AEDPA limitations period to “the date on which the factual predicate of the
claim . . . could have been discovered through the exercise of due diligence.” 28 U.S.C.
§ 2244(d)(1)(D). We agree with Williams that the district court erred to the extent it concluded
that evidence in existence at the time of trial is also, as a matter of law, discoverable by
reasonable diligence at the time of trial. See, e.g., Wims v. United States, 225 F.3d 186, 190 (2d
Cir. 2000); cf. Williams v. Taylor, 529 U.S. 420, 443 (2000). We affirm, however, on the
alternate ground that the allegations in the letter and affidavit did not create a new “factual
predicate” for Williams’s claim because they were not credible. As Williams concedes, the state
court found the letter and affidavit incredible. Under 28 U.S.C. § 2254(e)(1), “a determination
of a factual issue made by a State court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear and convincing evidence.”
Williams provided no such evidence below, and therefore failed to overcome the presumption of
correctness.

         1
            The only evidence in the record as to whether the library access system gave priority to inmates with court
deadlines is not favorable to Williams: the legend “[indiscernable symbol] = court deadline” appears at the bottom of
the list of inmates granted access to the law library on April 7, 2009. Asterisks appear beside the names of some of
the inmates on the list, but not beside Williams’s name. The proceedings below never addressed this notation.
When asked at oral argument if this notation suggested that the library did have a priority system, if the list indicated
whether or not Williams had requested priority status, and if a clearer photocopy was available, neither party was
able to provide any explanation or clarification.

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       We have reviewed the remainder of petitioner’s arguments and found them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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