06-5438-pr
Shabazz v. Filion


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 6 th day of December, two thousand ten.

PRESENT:            JOSEPH M. McLAUGHLIN,
                    REENA RAGGI,
                    GERARD E. LYNCH,
                              Circuit Judges.

------------------------------------------------------------
RAHEEM SHABAZZ,
                                 Petitioner-Appellant,

                          v.                                         No. 06-5438-pr

GARY H. FILION,
                                 Respondent-Appellee.
------------------------------------------------------------

FOR APPELLANT:                   Stephen Lance Cimino, Esq., Syracuse, New York.

FOR APPELLEE:                    Priscilla Steward, Assistant Attorney General (Barbara D.
                                 Underwood, Solicitor General, Roseann B. MacKechnie, Deputy
                                 Solicitor General for Criminal Matters, on the brief), for Andrew
                                 M. Cuomo, Attorney General of the State of New York, Albany,
                                 New York.
       Appeal from the United States District Court for the Northern District of New York

(Lawrence E. Kahn, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 26, 2006, is AFFIRMED.

       Raheem Shabazz is presently serving a prison term of twenty years to life as a

persistent felony offender as a result of his 1996 New York State conviction after a jury trial

of second degree robbery. See N.Y. Penal Law § 160.10(2)(b). On this appeal, he

challenges the dismissal of his 2002 habeas corpus petition for relief from that conviction,

arguing that the district court erred in holding the petition untimely under 28 U.S.C.

§ 2244(d)(1)(D) because Shabazz failed to exercise due diligence in securing a prosecution

witness’s recantation that was the basis for the petition.1 Alternatively, Shabazz argues that

equitable tolling should excuse his untimely filing.

       We review de novo a district court’s decision to deny a habeas petition. See Mannix

v. Phillips, 619 F.3d 187, 195 (2d Cir. 2010). Where, as here, the district court conducts a

hearing and makes factual findings relevant to an assessment of timeliness under a provision



       1
         The district court had originally concluded that Shabazz’s petition was untimely
under 28 U.S.C. § 2244(d)(1)(A), which requires that a petition be filed within one year of
“the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” On appeal, we remanded for the district
court to determine the timeliness of Shabazz’s claim pursuant to 28 U.S.C. § 2244(d)(1)(D),
which recognizes a petition as timely if filed within one year of “the date on which the
factual predicate of the claim or claims presented could have been discovered through the
exercise of due diligence.” See Shabazz v. Filion, No. 02-2642 (Order of July 21, 2003
issued as mandate on Aug. 20, 2003).

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of § 2244(d), we review those findings for clear error, see id.; Hemstreet v. Greiner, 491 F.3d

84, 89 (2d Cir. 2007), but we ultimately review de novo the legal question of whether those

facts demonstrate timeliness, see Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005). Our

precedent has not clearly identified whether the exercise of due diligence under

§ 2244(d)(1)(D) raises a question of law, fact, or both. See, e.g., Wims v. United States, 225

F.3d 186, 190-91 (2d Cir. 2000) (indicating that “the date on which the limitations clock

began to tick is a fact-specific issue” that is “appropriately answered by the district court,”

but noting that petitioner’s delay in discovering factual predicate was not so “unreasonable

that it plainly appears from the face of [the] petition”). We need not conclusively decide the

issue here because even applying the standard of review most favorable to Shabazz, i.e.,

reviewing the district court’s factual findings for clear error, but deciding de novo whether

those facts manifest due diligence, we would conclude that his petition is untimely. We

review a denial of equitable tolling for abuse of discretion, see Belot v. Burge, 490 F.3d 201,

206-07 (2d Cir. 2007), mindful that such tolling is warranted only in “rare and exceptional

circumstances,” Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (internal quotation

marks omitted). In applying these principles, we presume familiarity with the facts and

procedural history, which we reference only as necessary to explain our decision.

       1.     Shabazz Failed to Demonstrate Due Diligence

       The timeliness of Shabazz’s petition depends on his “exercise of due diligence” in

discovering the factual predicate for his claim. 28 U.S.C. § 2244(d)(1)(D). Shabazz



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concedes that the burden of demonstrating due diligence rests with petitioner. See, e.g.,

Johnson v. United States, 544 U.S. 295, 311 (2005) (indicating that, where factual predicate

for habeas claim was in existence for some time, petitioner had obligation to explain why he

did not take action to discover predicate earlier). The factual predicate for Shabazz’s petition

is two-fold: (1) 18-year old prosecution witness Michael Shackett, the son of petitioner’s

girlfriend Barbara Shackett, purportedly lied when he testified at trial that he found a black

pellet gun in the trunk of Shabazz’s car a few days after petitioner was arrested for the

robbery at issue; and (2) in a January 2, 2001 affidavit, Michael Shackett stated that “there

was no gun” and that he had falsely testified to that effect because of coercion from the

prosecution. The second fact, Michael Shackett’s recantation, provides the requisite basis

for Shabazz’s habeas claim and, therefore, properly controls calculation of the one-year

limitations period under § 2244(d)(1)(D).2 The first fact, however, is important to assessing

whether Shabazz exercised due diligence because petitioner’s knowledge of that fact




       2
         The district court determined that Shabazz was required to show that he could not,
with reasonable diligence, have learned of Michael Shackett’s willingness to recant prior to
October 28, 2000. Thirty-six days elapsed between the date that Shabazz received Michael
Shackett’s affidavit (January 6, 2001) and when he filed a N.Y. Crim. P. Law § 440.10
motion in state court (February 12, 2001). The statute of limitations was tolled until the date
that the Appellate Division denied Shabazz leave to appeal the trial court’s denial of his
§ 440.10 motion (October 23, 2001). The limitations clock ran for an additional 259 days
until Shabazz’s habeas petition was deemed filed (July 10, 2002). Thus, from the date that
Shabazz received Michael Shackett’s affidavit until he filed his habeas petition, a total of 295
days elapsed, leaving seventy days remaining on the one-year limitations period. Counting
back seventy days from January 6, 2001, yields October 28, 2000. Shabazz does not dispute
the district court’s calculations.

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precludes him from claiming that he had no reason to investigate Michael Shackett’s

willingness to recant his trial testimony prior to receiving the affidavit in January 2001.

       At the evidentiary hearing held upon remand, Shabazz’s testimony established that in

the four years between his trial and the filing of his habeas petition, he made absolutely no

effort to contact Michael Shackett, directly or through intermediaries, much less to secure

his recantation. We do not here suggest that defendants must, as a matter of course, regularly

solicit recantations to demonstrate due diligence under § 2244(d)(1)(D). But, in this case,

Shabazz had a longstanding romantic relationship with Barbara Shackett, the recanting

witness’s mother. Although Shabazz apparently discussed Michael Shackett’s testimony

with Barbara Shackett at the time of trial, he failed to do so again in the ensuing four years

despite the fact that she visited him in prison approximately every two weeks. Nor did

Shabazz ask Barbara Shackett to speak with her son about recanting his testimony, or request

that she have her son contact Shabazz.

       Shabazz testified at the hearing that his inaction did not belie due diligence because

Barbara Shackett had only limited contact with her son in the years after the trial. Further,

Shabazz maintains that he did not want to upset the various personal relationships at issue,

or create an appearance of witness coercion.        Thus, he simply waited until Michael

Shackett’s “conscience” produced a recantation. In rejecting this explanation, the district

court found that Shabazz was not a credible witness based on inconsistencies in his testimony

and the court’s observation of Shabazz at the hearing.        This finding was not clearly



                                              5
erroneous. See Doe v. Menefee, 391 F.3d 147, 164 (2d Cir. 2004); see also Anderson v. City

of Bessemer City, 470 U.S. 564, 575 (1985).

       In any event, the adverse finding is reinforced by other record evidence that casts

considerable doubt on the very basis for Shabazz’s habeas claim: that Michael Shackett was

importuned by prosecutors falsely to testify that he found a gun in Shabazz’s car. When

Barbara Shackett testified as a defense witness at petitioner’s trial, she stated that her son told

her about the gun soon after discovering it. She testified that she recounted this fact to

Shabazz’s sister, who urged her to have one of her sons dispose of the weapon. These

events, all occurring prior to Michael Shackett having any contact with the police or

prosecutors, seriously undermine his assertion in the January 2, 2001 affidavit that it was

prosecutors who coerced him to fabricate testimony about discovering a gun. The credibility

of Michael Shackett’s affidavit could not be tested at the evidentiary hearing because he

invoked his Fifth Amendment right not to testify. More significant to assessing due

diligence, however, Shabazz failed to call Barbara Shackett – the only other person who

could have shed light on his due diligence claim – as a hearing witness. Indeed, Shabazz

stated, inexplicably, that he failed even to tell Barbara Shackett about the hearing.

       In these circumstances, we conclude that the district court correctly determined that

Shabazz failed to show that he could not through the exercise of due diligence have

discovered the factual predicate for his claim prior to October 28, 2000, the date relevant to




                                                6
establishing timeliness under § 2244(d)(1)(D). Accordingly, the petition was properly

dismissed as untimely.

       2.     Shabazz Failed to Establish Circumstances Warranting Equitable Tolling

       Shabazz argues that even if his petition is untimely, he is entitled to equitable tolling

because of the rare and exceptional circumstances of his case. We disagree. Not only does

Shabazz fail to point to any “extraordinary circumstance” that prevented timely filing, we

conclude that Shabazz’s failure to demonstrate due diligence precludes him from obtaining

equitable relief. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (“[A] petitioner is

entitled to 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.” (internal quotation marks omitted)); see also Saunders v. Senkowski, 587 F.3d

543, 550 (2d Cir. 2009); Belot v. Burge, 490 F.3d at 207-08.

       We have considered Shabazz’s remaining arguments on appeal and conclude that they

are without merit.    For the foregoing reasons, the September 26, 2006 judgment is

AFFIRMED.


                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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