Deskovic v. Mann

No. 97-2946

210 F.3d 354 (2000) | Cited 48 times | Second Circuit | April 26, 2000

UNPUBLISHED OPINION

Present POOLER and SOTOMAYOR,1 Circuit Judges.

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Jeffrey Deskovic appeals from the November 21, 1997, judgment of the United States District Court for the Southern District of New York (Jones J.) dismissing as untimely his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A trial jury in Westchester County convicted Deskovic in January 1991 of second-degree murder, first-degree rape and fourth-degree criminal possession of a weapon, and the convictions became final in 1994. Deskovic later retained counsel located in Georgia to file his federal habeas petition. Counsel mailed the petition to federal court in New York on April 24, 1997, and the court received and filed it on April 28, 1997. Deskovic claims that his attorney telephoned the court clerk in New York, who said that the petition would be deemed filed as of the date it was mailed rather than the date it was received. Because Deskovic's state conviction was final before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which contains a one-year statute of limitations for filing federal habeas petitions, he had until April 24, 1997, to file his petition. See Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir.1998). Judge Barbara S. Jones dismissed Deskovic's petition as untimely pursuant to the standard in place before Ross v. Artuz, which called for filing within a "reasonable time" after the AEDPA's effective date of April 24, 1996. See Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997). We apply the current Ross v. Artuz rule.

On appeal, Deskovic contends that he is entitled to equitable tolling of the limitations period contained in the AEDPA because his counsel relied on erroneous information from the clerk of the court. Equitable tolling applies to both the statute of limitations in the AEDPA and the one-year grace period announced in Ross v. Artuz. See Smith v. McGinnis, No. 99-2227, 2000 WL 271714, at *3 (2d Cir. Mar. 13, 2000). Tolling applies in the rare and exceptional case where extraordinary circumstances prevent a petitioner from filing his papers in time even though petitioner acted with reasonable diligence throughout the period he seeks to toll. See id. Attorneys' failure to comply with statutes of limitations due to their own neglect is no basis for equitable tolling. See South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir.1994). See also Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir.1999) ( per curiam ). The alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance. Similarly, we are unpersuaded that equitable tolling is appropriate based on Deskovic's contentions that the four-day delay did not prejudice respondent, petitioner himself did not create the delay, his situation is unique, and his petition has substantive merit.

Deskovic also argues that he is entitled to relief under the doctrine of unique circumstances, "which only applies where a party performs an act which would otherwise postpone the deadline for filing his appeal and the district judge gives specific assurances concerning the timeliness of a post-judgment motion." Fruit of the Loom, Inc. v. American Mktg. Enters., Inc., 192 F.3d 73, 76-77 (2d Cir.1999) ( per curiam ) (citations and internal quotation marks omitted). Petitioner's reliance on this doctrine is misplaced. The doctrine of unique circumstances directly relates to the "mandatory and jurisdictional" issue of filing notices of appeal pursuant to Fed.R.App.P. 4(a)(1)(A). See id. at 75 (citation omitted). The doctrine also concerns affirmative court conduct, which is not present here. See Rezzonico v. H & R Block, Inc., 182 F.3d 144, 152 (2d Cir.1999) (holding that the oral communications of a member of the clerk's office are not official judicial assurances qualifying as unique circumstances), cert. denied, 120 S.Ct. 1243 (2000). See also Moore v. South Carolina Labor Bd., 100 F.3d 162, 164 (D.C.Cir.1996) ( per curiam ) (limiting unique circumstances exception to formal court action). The district court correctly dismissed Deskovic's petition as untimely.

We have considered all of petitioner-appellant's remaining arguments and find them to be without merit.

1. Judge Van Graafeiland, who was originally assigned as a member of the panel designated to hear this appeal, became ill shortly before the scheduled oral argument and was unable to participate in its argument or disposition. The remaining two members of the panel, who agree on the disposition, issue this order pursuant to 2d Cir.R. § 0.14(a), (b). See Murray v. National Broadcasting Co., Inc., 35 F.3d 45, 47-48 (2d Cir.1994).

UNPUBLISHED OPINION

Present POOLER and SOTOMAYOR,1 Circuit Judges.

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Jeffrey Deskovic appeals from the November 21, 1997, judgment of the United States District Court for the Southern District of New York (Jones J.) dismissing as untimely his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A trial jury in Westchester County convicted Deskovic in January 1991 of second-degree murder, first-degree rape and fourth-degree criminal possession of a weapon, and the convictions became final in 1994. Deskovic later retained counsel located in Georgia to file his federal habeas petition. Counsel mailed the petition to federal court in New York on April 24, 1997, and the court received and filed it on April 28, 1997. Deskovic claims that his attorney telephoned the court clerk in New York, who said that the petition would be deemed filed as of the date it was mailed rather than the date it was received. Because Deskovic's state conviction was final before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which contains a one-year statute of limitations for filing federal habeas petitions, he had until April 24, 1997, to file his petition. See Ross v. Artuz, 150 F.3d 97, 102-03 (2d Cir.1998). Judge Barbara S. Jones dismissed Deskovic's petition as untimely pursuant to the standard in place before Ross v. Artuz, which called for filing within a "reasonable time" after the AEDPA's effective date of April 24, 1996. See Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997). We apply the current Ross v. Artuz rule.

On appeal, Deskovic contends that he is entitled to equitable tolling of the limitations period contained in the AEDPA because his counsel relied on erroneous information from the clerk of the court. Equitable tolling applies to both the statute of limitations in the AEDPA and the one-year grace period announced in Ross v. Artuz. See Smith v. McGinnis, No. 99-2227, 2000 WL 271714, at *3 (2d Cir. Mar. 13, 2000). Tolling applies in the rare and exceptional case where extraordinary circumstances prevent a petitioner from filing his papers in time even though petitioner acted with reasonable diligence throughout the period he seeks to toll. See id. Attorneys' failure to comply with statutes of limitations due to their own neglect is no basis for equitable tolling. See South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir.1994). See also Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir.1999) ( per curiam ). The alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance. Similarly, we are unpersuaded that equitable tolling is appropriate based on Deskovic's contentions that the four-day delay did not prejudice respondent, petitioner himself did not create the delay, his situation is unique, and his petition has substantive merit.

Deskovic also argues that he is entitled to relief under the doctrine of unique circumstances, "which only applies where a party performs an act which would otherwise postpone the deadline for filing his appeal and the district judge gives specific assurances concerning the timeliness of a post-judgment motion." Fruit of the Loom, Inc. v. American Mktg. Enters., Inc., 192 F.3d 73, 76-77 (2d Cir.1999) ( per curiam ) (citations and internal quotation marks omitted). Petitioner's reliance on this doctrine is misplaced. The doctrine of unique circumstances directly relates to the "mandatory and jurisdictional" issue of filing notices of appeal pursuant to Fed.R.App.P. 4(a)(1)(A). See id. at 75 (citation omitted). The doctrine also concerns affirmative court conduct, which is not present here. See Rezzonico v. H & R Block, Inc., 182 F.3d 144, 152 (2d Cir.1999) (holding that the oral communications of a member of the clerk's office are not official judicial assurances qualifying as unique circumstances), cert. denied, 120 S.Ct. 1243 (2000). See also Moore v. South Carolina Labor Bd., 100 F.3d 162, 164 (D.C.Cir.1996) ( per curiam ) (limiting unique circumstances exception to formal court action). The district court correctly dismissed Deskovic's petition as untimely.

We have considered all of petitioner-appellant's remaining arguments and find them to be without merit.

1. Judge Van Graafeiland, who was originally assigned as a member of the panel designated to hear this appeal, became ill shortly before the scheduled oral argument and was unable to participate in its argument or disposition. The remaining two members of the panel, who agree on the disposition, issue this order pursuant to 2d Cir.R. § 0.14(a), (b). See Murray v. National Broadcasting Co., Inc., 35 F.3d 45, 47-48 (2d Cir.1994).

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