21-279-pr
Clemente v. Lee
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2022
4 (Argued: September 14, 2022 Decided: July 5, 2023)
5 Docket No. 21-279-pr
6
7
8 VICTOR CLEMENTE,
9 Petitioner-Appellant,
10 v.
11 WILLIAM LEE, WARDEN, EASTERN CORRECTIONAL FACILITY,
12 Respondent-Appellee.
13
14
15 Before: POOLER, SACK, AND PARK, Circuit Judges.
16 On April 10, 2008, petitioner-appellant Victor Clemente was convicted of
17 murder in the second degree and criminal possession of a weapon in the second
18 degree by a New York state-court jury. The court sentenced him to concurrent
19 indeterminate prison terms of twenty years to life for the murder count and five
20 to fifteen years for the weapon-possession count.
21 Following unsuccessful direct appeals and collateral challenges to his
22 conviction in the state courts, Clemente filed a petition for a writ of habeas
23 corpus in the United States District Court for the Eastern District of New York.
24 Respondent-appellee William Lee, the Warden of the facility in which Clemente
25 is imprisoned, moved to dismiss a subset of the claims in the petition on the
26 ground that they were time-barred under 28 U.S.C. § 2244(d)(1). The district
27 court (Donnelly, J.) agreed and entered an order supported by a memorandum
28 decision granting the motion.
29 Clemente filed a notice of appeal and sought a certificate of appealability.
30 On July 14, 2021, we granted a certificate of appealability on an issue of first
31 impression for this Court: “[W]hether the district court properly dismissed some
32 of Appellant’s claims as time-barred when it applied
28 U.S.C. § 2244(d)(1) to his
33 individual claims, rather than to his entire petition.” Docket No. 25.
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1 Clemente contends that under § 2244(d)(1), all the claims raised in his
2 petition were timely because at least one claim asserted therein was timely filed
3 within the applicable one-year limitations period. He argues that the district
4 court erred by analyzing the timeliness of the claims in his petition on a claim-
5 by-claim basis and that it should have applied a single statute of limitations to all
6 his claims.
7 We disagree and conclude that § 2244(d)(1)’s statute of limitations requires
8 a claim-by-claim approach, joining our sister circuits that have addressed the
9 issue. Because we further conclude that the district court correctly determined
10 that the claims at issue in this appeal were therefore time-barred, we
11 AFFIRM the order of the district court.
12 JODI MORALES, The Law Offices of Jodi
13 Morales, Bronx, NY, for Petitioner-Appellant;
14
15 WILLIAM H. BRANIGAN (John M. Castellano,
16 on the brief), Assistant District Attorneys, for
17 Melinda Katz, District Attorney for Queens
18 County, Queens, NY, for Respondent-
19 Appellee.
20
21 SACK, Circuit Judge:
22 On April 10, 2008, petitioner-appellant Victor Clemente was convicted of
23 murder in the second degree and criminal possession of a weapon in the second
24 degree by a New York state-court jury. The court sentenced him to concurrent
25 indeterminate prison terms of twenty years to life for the murder count and five
26 to fifteen years for the weapon-possession count.
27 Following unsuccessful direct appeals and collateral challenges to his
28 conviction in the state courts, Clemente filed a petition for a writ of habeas
2
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1 corpus in the United States District Court for the Eastern District of New York.
2 Respondent-appellee William Lee, the Warden of the facility in which Clemente
3 is imprisoned, moved to dismiss a subset of the claims asserted in Clemente’s
4 petition on the ground that they were time-barred under 28 U.S.C. § 2244(d)(1).
5 The district court (Donnelly, J.) agreed and entered an order supported by a
6 memorandum decision granting the motion.
7 Clemente filed a notice of appeal and sought a certificate of appealability.
8 On July 14, 2021, we granted a certificate of appealability on an issue of first
9 impression for this Court: “[W]hether the district court properly dismissed some
10 of Appellant’s claims as time-barred when it applied
28 U.S.C. § 2244(d)(1) to his
11 individual claims, rather than to his entire petition.” Docket No. 25.
12 Clemente contends that under § 2244(d)(1), all the claims raised in his
13 petition were timely because at least one claim asserted therein was timely filed
14 within the applicable one-year limitations period. He argues that the district
15 court erred by analyzing the timeliness of the claims in his petition on a claim-
16 by-claim basis and that it should have applied a single statute of limitations to all
17 his claims.
3
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Clemente v. Lee
1 We disagree and conclude that § 2244(d)(1)’s statute of limitations requires
2 a claim-by-claim approach, joining our sister circuits that have addressed the
3 issue. Because we further conclude that the district court correctly determined
4 that the claims at issue in this appeal were therefore time-barred, we affirm the
5 order of the district court.
6 BACKGROUND
7 I. Pre-Trial Proceedings and Conviction
8 On November 20, 1986, Clemente fatally shot one Wilfredo Drapete.
9 Clemente was charged with murder in the second degree under New York Penal
10 Law § 125.25 and criminal possession of a weapon in the second and third
11 degrees under New York Penal Law §§ 265.02 and 265.03. In January 1988, he
12 moved to dismiss the indictment, arguing that the State failed to provide him
13 with a speedy trial. The state trial court granted the motion and dismissed the
14 indictment on March 22, 1988.
15 The State appealed the order dismissing the indictment to the New York
16 State Supreme Court, Appellate Division, Second Department. Clemente was
17 not represented by counsel during that appeal and did not file an opposing brief.
18 On May 22, 1989, the Appellate Division reversed the trial court’s ruling,
4
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1 reinstated the indictment, and remitted the case to the trial court for further
2 proceedings. People v. Clemente, 541 N.Y.S.2d 583, 584 (2d Dep’t 1989).
3 Clemente was scheduled to appear in court on June 13, 1989. He failed to
4 appear and a warrant was issued for his arrest. Seventeen years later, in
5 December 2006, law enforcement found Clemente in California, arrested him,
6 and returned him to New York to face the charges in Supreme Court, Queens
7 County. On April 10, 2008, a jury convicted Clemente of murder in the second
8 degree and criminal possession of a weapon in the second degree. On April 30,
9 2008, the trial court sentenced him to concurrent indeterminate prison terms of
10 twenty years to life on the murder charge and five to fifteen years on the
11 weapon-possession charge.
12 II. Direct Appeal
13 Clemente appealed his conviction to the Appellate Division, Second
14 Department, challenging, among other things, several of the trial court’s
15 evidentiary rulings. The Appellate Division affirmed Clemente’s conviction on
16 May 3, 2011. People v. Clemente,
922 N.Y.S.2d 193, 194 (2d Dep’t 2011). He sought
17 leave to appeal to the New York Court of Appeals, which denied his application
18 on June 23, 2011. People v. Clemente,
17 N.Y.3d 793 (2011). He then petitioned the
5
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1 United States Supreme Court for a writ of certiorari. It was denied on June 4,
2 2012. Clemente v. New York, 566 U.S. 1035 (2012).
3 III. Motion to Vacate the Conviction
4 On December 27, 2012, Clemente, proceeding pro se, moved in the state
5 trial court to vacate his conviction as provided by New York Criminal Procedure
6 Law § 440.10, arguing that he was improperly denied the right to appellate
7 counsel in 1989 when the Appellate Division reversed the dismissal of the
8 indictment. The trial court denied Clemente’s motion on April 18, 2013,
9 concluding that the Appellate Division, not the trial court, was the proper forum
10 for him to seek the requested relief.
11 IV. First Writ of Error Coram Nobis
12 On September 11, 2013, Clemente, proceeding pro se, sought coram nobis
13 relief 1 before the Appellate Division, again arguing that his right to appellate
1Although “the scope of coram nobis has been somewhat expanded beyond its original office, it
still remains an emergency measure employed for the purpose for which it was initially
designed, of calling up facts unknown at the time of the judgment.” People v. Caminito, 3 N.Y.2d
596, 601 (1958) (citations omitted).
In New York, the writ became “a proper remedy whereby a court of competent jurisdiction
could reopen its judgment of conviction under proper circumstances. The essence of coram
nobis is that it is a motion addressed to the very court which rendered the judgment and is not
in the nature of a separate proceeding, although often utilized long after the entry of judgment.”
Peter H. Bickford, Coram Nobis as Proper Remedy for Testimony Not Perjured and Not Knowingly
Used, 13 BUFF. L. REV. 190, 191 (1963) (footnotes omitted).
6
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1 counsel had been violated in 1989. On February 11, 2015, the Appellate Division
2 granted the coram nobis application in part and concluded that Clemente’s right
3 to appellate counsel had indeed been violated. People v. Clemente, 4 N.Y.S.3d 84,
4 84 (2d Dep’t 2015). The Appellate Division appointed counsel for Clemente and
5 ordered the State to re-file its 1989 appeal.
Id. at 84-85.
6 The appeal was fully briefed and the Appellate Division again concluded
7 that the trial court had erred by dismissing the indictment in 1988. People v.
8 Clemente,
30 N.Y.S.3d 880, 881 (2d Dep’t 2016). Accordingly, the court denied
9 Clemente’s coram nobis application.
Id. On August 11, 2016, the New York Court
10 of Appeals denied Clemente’s motion for leave to appeal the Appellate
11 Division’s decision. People v. Clemente,
28 N.Y.3d 928 (2016).
12 V. Second Writ of Error Coram Nobis
13 On April 5, 2017, Clemente, proceeding pro se, filed a second application
14 for coram nobis relief before the Appellate Division, arguing that he did not
15 receive effective assistance of counsel during the direct appeal from his
16 conviction and during the 2015 rehearing of the State’s appeal from the
17 speedy-trial dismissal. On December 13, 2017, the Appellate Division denied the
18 application. People v. Clemente,
64 N.Y.S.3d 921, 922 (2d Dep’t 2017). On March
7
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1 16, 2018, the New York Court of Appeals denied Clemente’s motion for leave to
2 appeal. People v. Clemente, 31 N.Y.3d 982 (2018).
3 VI. Current Federal Habeas Proceedings
4 On March 28, 2018, Clemente filed a petition for a writ of habeas corpus in
5 the United States District Court for the Eastern District of New York. The district
6 court construed Clemente’s petition as raising the same claims that he had
7 advanced in the direct appeal from his conviction, the first and second writs of
8 error coram nobis, and the counseled brief in the re-filed 1989 appeal. Clemente v.
9 Lee, No. 18-cv-1978 (AMD),
2019 WL 181304, at *1-3 (E.D.N.Y. Jan. 9, 2019). The
10 respondent moved to dismiss a subset of the claims raised in the petition as
11 untimely. The respondent argued that the claims challenging Clemente’s
12 conviction on the grounds that he raised in his direct appeal were time-barred
13 under
28 U.S.C. § 2244(d)(1)(A) and that Clemente’s claim of ineffective
14 assistance of counsel by the attorney who handled his direct appeal was time-
15 barred under § 2244(d)(1)(D). The district court agreed that these claims were
16 untimely and granted the respondent’s motion to dismiss. Id. at *4-5.
17 Clemente then filed a notice of appeal and sought a certificate of
18 appealability. We granted a certificate of appealability on an issue of first
8
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1 impression for this Court: “[W]hether the district court properly dismissed some
2 of Appellant’s claims as time-barred when it applied 28 U.S.C. § 2244(d)(1) to his
3 individual claims, rather than to his entire petition.” Docket No. 25. 2
4 Every federal appellate court to consider this question has concluded that
5 the timeliness of claims raised in a petition for habeas corpus must be analyzed
6 on a claim-by-claim basis. Zack v. Tucker,
704 F.3d 917, 918 (11th Cir.) (en banc),
7 cert. denied sub nom. Zack v. Crews,
571 U.S. 863 (2013) (“We conclude, based on
8 the text and structure of the statute, Supreme Court precedent, decisions of our
9 sister circuits, and Congressional intent, that [§ 2244(d)(1)] requires a claim-by-
10 claim approach to determine timeliness.”); Davis v. United States,
817 F.3d 319,
11 327-28 (7th Cir. 2016); DeCoteau v. Schweitzer,
774 F.3d 1190, 1192 (8th Cir. 2014);
12 Prendergast v. Clements,
699 F.3d 1182, 1186-88 (10th Cir. 2012); Mardesich v.
13 Cate,
668 F.3d 1164, 1169-71 (9th Cir. 2012); Bachman v. Bagley,
487 F.3d 979,
14 982-84 (6th Cir. 2007), abrogated on other grounds, Magwood v. Patterson,
561 U.S.
15 320 (2010); Fielder v. Varner,
379 F.3d 113, 117-22 (3d Cir. 2004); see also Capozzi v.
2On January 4, 2021, while this appeal was pending, the district court issued a decision and
order addressing the merits of the timely claims raised in Clemente’s habeas petition. The
district court found that Clemente was not entitled to habeas relief on any of his timely claims
and entered a judgment dismissing the petition. See Clemente v. Lee, No. 18-cv-1978, 2021 WL
25337 (AMD), at *8 (E.D.N.Y. Jan. 4, 2021).
9
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1 United States, 768 F.3d 32, 33 (1st Cir. 2014) (per curiam), cert. denied,
574 U.S. 1184
2 (2015) (concluding that the parallel limitations period for federal prisoners, 28
3 U.S.C. § 2255(f), applies on a claim-by-claim basis). For the following reasons,
4 we adopt the claim-by-claim approach. Because the district court utilized the
5 claim-by-claim approach and correctly determined that the claims at issue in this
6 appeal are time-barred, we affirm the district court’s order.
7 DISCUSSION
8 I. The Timeliness of Claims Raised in a Petition for Habeas Corpus
9 Must Be Analyzed on a Claim-by-Claim Basis
10 Petitions for habeas corpus by individuals “in custody pursuant to the
11 judgment of a State court” are subject to a one-year statute of limitations under
12 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
13 § 2244(d)(1). “This statute of limitations ‘quite plainly serves the well-recognized
14 interest in the finality of state court judgments.’” Zack,
704 F.3d at 919 (quoting
15 Duncan v. Walker,
533 U.S. 167, 179 (2001)); see also Mayle v. Felix,
545 U.S. 644, 662
16 (2005) (“Congress enacted AEDPA to advance the finality of criminal
17 convictions. To that end, it adopted a tight time line, a one-year limitation
18 period . . . .” (internal citation omitted)).
19 AEDPA’s one-year statute of limitations applies to “an application” for a
10
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1 writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period runs:
2 from the latest of—
3 (A) the date on which the judgment became final by the
4 conclusion of direct review or the expiration of the time for
5 seeking such review;
6 (B) the date on which the impediment to filing an application
7 created by State action in violation of the Constitution or laws
8 of the United States is removed, if the applicant was prevented
9 by filing from such State action;
10 (C) the date on which the constitutional right asserted was
11 initially recognized by the Supreme Court, if the right has been
12 newly recognized by the Supreme Court and made
13 retroactively applicable to cases on collateral review; or
14 (D) the date on which the factual predicate of the claim or
15 claims presented could have been discovered through the
16 exercise of due diligence.
17
Id. § 2244(d)(1)(A)-(D).
18 Clemente contends that this statute, properly interpreted, provides that all
19 claims raised in a habeas petition are timely so long as at least one claim asserted
20 therein is timely under the one-year statute of limitations. 3 In other words, he
3The respondent contends that Clemente “failed to raise” “the issue of whether the separate
claims should be assessed for time bar purposes.” Appellee’s Br. at 13. Even assuming
Clemente forfeited this argument, we exercise our discretion to consider it on appeal. See United
States v. Graham, 51 F.4th 67, 80 (2d Cir. 2022) (“Forfeiture, a mere failure to make the timely
assertion of a right when procedurally appropriate, allows a court either to disregard an
argument at its discretion (in civil cases) or otherwise subject it to plain-error review (in
criminal cases).” (citations and internal quotation marks omitted)).
11
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1 argues that courts must determine whether habeas petitions as a whole are
2 timely and are not permitted to conclude that certain claims asserted in a petition
3 should be dismissed as time-barred while others may proceed as timely.
4 Therefore, according to Clemente, the district court erred by dismissing his
5 time-barred claims because he raised them in a petition that also asserted claims
6 that are undisputedly timely. However, we reject Clemente’s construction of
7 § 2244(d)(1).
8 A.
9 Our analysis begins, as it must, with § 2244(d)(1)’s text and structure. “In
10 statutory interpretation, a court’s proper starting point lies in a careful
11 examination of the ordinary meaning and structure of the law itself.” Seife v. U.S.
12 Food & Drug Admin.,
43 F.4th 231, 239 (2d Cir. 2022) (citation and internal
13 quotation marks omitted). “If, however, the statute is ambiguous, we focus upon
14 the broader context and primary purpose of the statute.” Gordon v. Softech Int’l,
15 Inc.,
726 F.3d 42, 48 (2d Cir. 2013) (citation and internal quotation marks omitted).
16 We agree with our sister circuits that it is not immediately apparent from
17 § 2244(d)(1)’s text whether a claim-by-claim approach or Clemente’s proposed
18 approach is appropriate. See Mardesich,
668 F.3d at 1170 (considering the “statute
12
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1 as a whole” because “the ambiguous language in § 2244(d)(1) [does] not provide
2 sufficient guidance”); DeCoteau, 774 F.3d at 1192 (“The language in § 2244(d)(1) is
3 susceptible to more than one interpretation.”). It is clear, however, that
4 Clemente’s proposed interpretation of § 2244(d)(1) is incompatible with the
5 structure of AEDPA’s statute of limitations framework.
6 Clemente’s proposed interpretation of § 2244(d)(1) “reads the statute in
7 such a way that under certain circumstances it will be impossible for courts to
8 identify the applicable statute of limitations.” Zack,
704 F.3d at 922. This
9 problem was illustrated by the habeas petition that the Third Circuit considered
10 in Fielder. There, the petitioner raised two claims in his petition—one alleging
11 prosecutorial misconduct and one seeking a new trial based on newly discovered
12 evidence. Fielder,
379 F.3d at 114. Under § 2244(d)(1)(D), the one-year statute of
13 limitations for these claims ran from “the date on which the factual predicate of
14 the claim or claims presented could have been discovered through the exercise of
15 due diligence.” Id. at 117 (quoting
28 U.S.C. § 2244(d)(1)(D)). Then-Circuit Judge
16 Alito, writing for the court, explained that while the “factual predicate of the
17 prosecutorial misconduct claim was presumably known to [the petitioner] at the
18 time of trial, . . . the factual predicate of the after-discovered evidence claim was
13
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1 not reasonably discoverable until years later.” Id. at 118. If AEDPA’s statute of
2 limitations provision applied on a claim-by-claim basis, then “there [would be]
3 no problem” as each claim’s timeliness could readily be calculated based on
4 when the factual predicates underlying each claim could reasonably have been
5 discovered.
Id. If a single statute of limitations period were applied to the entire
6 petition, however, it would be impossible for courts to determine which of the
7 two dates controls. “[T]here is nothing in § 2244(d) that suggests that a court
8 should . . . select the latest date on which the factual predicate of any claim
9 presented in a multi-claim application could have been reasonably discovered. It
10 would be just as consistent with the statutory language to pick the earliest date.”
11 Id. 4
12 The problems with Clemente’s approach are not confined to multi-claim
13 petitions analyzed under § 2244(d)(1)(D). Consider, as the Eleventh Circuit did,
14 a “circumstance where an applicant presents a petition for relief that seeks
15 review under two separate constitutional rights newly recognized by two
4 As then-Circuit Judge Alito explained for the Third Circuit, § 2244(d)(1)'s reference to “the
latest” date “does not tell a court how to identify the date specified in [§ 2244(d)(1)(D)] in a case
in which the application contains multiple claims.” Fielder, 379 F.3d at 118. That language only
“tells a court how to choose from among the four dates specified in subsections (A) through (D)
once those dates are identified.” Id.
14
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1 separate Supreme Court decisions.” Zack, 704 F.3d at 922. In such a case, under
2 § 2244(d)(1)(C), the statute of limitations runs from “the date on which the
3 constitutional right asserted was initially recognized by the Supreme Court.” Id.
4 (quoting
28 U.S.C. § 2244(d)(1)(C)). Under the claim-by-claim approach, the
5 applicable statute of limitations for each claim can be ascertained and runs “from
6 the date of each relevant Supreme Court decision.”
Id. But if a court were to
7 attempt to apply a single statute of limitations to the entire petition, then the
8 statute would be silent as to whether the one-year statute of limitations runs
9 from the date of the earlier Supreme Court decision or the later one. “Nothing in
10 the text of [§ 2244(d)(1)(C)] resolves that question.” Id.
11 Clemente argues that irrespective of the difficulties caused by his
12 proposed interpretation of § 2244(d), the statute forecloses the claim-by-claim
13 approach because it refers to the period within which an “application,” rather
14 than a “claim,” must be filed. We disagree for the same reasons that the Third
15 Circuit rejected an identical argument:
16 [T]here is nothing unusual about the [use of the word “application”
17 in] § 2244(d)(1). It is common for statute of limitations provisions to
18 be framed using the model of a single-claim case. For example, the
19 general statute of limitations for federal claims,
28 U.S.C. § 1658,
20 prescribes the date by which “a civil action” must be commenced.
15
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1 State statutes often use similar wording. . . .
2
3 Although these provisions are framed on the model of the one-claim
4 complaint, it is understood that they must be applied separately to
5 each claim when more than one is asserted. . . . [N]o one, we assume,
6 would argue that, in a civil case with multiple federal claims, the
7 statute of limitations must begin on the same date for every claim.
8 Rather, each claim must be analyzed separately.
9 Fielder, 379 F.3d at 119 (citations omitted). We conclude that § 2244(d)(1) should
10 be applied in a similar fashion.
11 Clemente’s reliance on the statute’s use of the word “application” is
12 further undermined by the Supreme Court’s decision in Pace v. DiGuglielmo, 544
13 U.S. 408 (2005). There, the Court “cited several provisions in AEDPA where a
14 reference to an ‘application’ nevertheless requires a claim-by-claim analysis.”
15 Zack,
704 F.3d at 923 (citing Pace, 544 U.S. at 415-16). Recognizing that AEDPA’s
16 statute of limitation period applies to an “application” for a writ of habeas
17 corpus, the Supreme Court explained that § 2244(d)(1) “then provides one means
18 of calculating the limitation with regard to the ‘application’ as a whole,
19 § 2244(d)(1)(A) (date of final judgment), but three others that require claim-by-claim
20 consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new
21 right made retroactive); § 2244(d)(1)(D) (new factual predicate).” Pace, 544 U.S. at
22 416 n.6 (emphasis added). Although this language was not necessary to the
16
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1 Supreme Court’s holding in Pace, and is therefore not binding upon us, “we have
2 an obligation to accord great deference to Supreme Court dicta.” Newdow v.
3 Peterson, 753 F.3d 105, 108 n.3 (2d Cir. 2014) (per curiam) (citation and internal
4 quotation marks omitted). That obligation is particularly compelling here
5 because the Court addressed one of the provisions directly at issue in this case—
6 § 2244(d)(1)(D)—and expressly found that it “require[s] claim-by-claim
7 consideration.” Pace, 544 U.S. at 416 n.6. 5
8 B.
9 In addition to being incompatible with § 2244(d)’s structure, Clemente’s
10 interpretation of the statute undermines Congress’s purpose and intent in
5Clemente contends that in Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court
effectively ruled that the claim-by-claim approach is inconsistent with § 2244(d). We disagree.
Magwood concerned the proper interpretation of 28 U.S.C. § 2244(b)(1) and (2), which provide
that a “claim presented in a second or successive habeas corpus application” should be
dismissed unless certain other conditions are satisfied. Id. at 330 (quoting
28 U.S.C. § 2244(b)).
The Supreme Court concluded that a habeas petition challenging a “death sentence, imposed as
part of resentencing in response to a conditional writ from the District Court,” id., was not a
“second or successive” application because there was a “new judgment intervening between the
two habeas petitions,” id. at 341 (quoting Burton v. Stewart,
549 U.S. 147, 156 (2010) (per
curiam)). In so holding, the Supreme Court rejected the respondent’s argument that the phrase
“second or successive” in § 2244(b) should be read to modify “claims,” not “application,” and
explained that such an interpretation of the statutory text would “elid[e] the difference between
an ‘application’ and a ‘claim.’” Id. at 334 (alteration in original) (citation and internal quotation
marks omitted). But the Supreme Court also recognized that “many of the rules under § 2244(b)
focus on claims.” Id. at 334-35. Because the Magwood Court interpreted the text of two
provisions not at issue in this case and explicitly confined its holding to those subsections,
Magwood is inapposite.
17
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1 enacting AEDPA. “[W]e will not interpret a statute in a way ‘that apparently
2 frustrates the statute’s goals, in the absence of a specific intention otherwise.’”
3 Gordon, 726 F.3d at 51 (alteration in original) (quoting United States v. Livecchi, 711
4 F.3d 345, 351 (2d Cir. 2013)).
5 Congress enacted AEDPA’s statute of limitations to reduce “the potential
6 for delay on the road to finality by restricting the time that a prospective federal
7 habeas petitioner has in which to seek federal habeas review.” Duncan,
533 U.S.
8 at 179; see also Zack,
704 F.3d at 925 (“The Supreme Court has also observed that
9 the purpose of the habeas statute of limitations is to end delays in criminal
10 cases.” (citing Woodford v. Garceau,
538 U.S. 202, 206 (2003))). To “advance the
11 finality of criminal convictions,” Congress “adopted a tight time line” within
12 which state prisoners may file habeas petitions. Mayle,
545 U.S. at 662.
13 As the Ninth Circuit observed with respect to the petition then before it,
14 “stretched to its logical extreme,” Clemente’s proposed interpretation of
15 § 2244(d)(1) “would hold that AEDPA’s statute of limitations never completely
16 runs on any claim so long as there is a possibility of a timely challenge for one
17 claim. There is no evidence that Congress intended such a result when
18 it . . . enact[ed] a one-year statute of limitations.” Mardesich,
668 F.3d at 1171; see
18
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1 also Fielder, 379 F.3d at 120 (noting that rejection of the claim-by-claim approach
2 would have “the strange effect of permitting a late-accruing federal habeas claim
3 to open the door for the assertion of other claims that had become time-barred
4 years earlier. . . . We cannot think of any reason why Congress would have
5 wanted to produce such a result.”); Zack,
704 F.3d at 925 (observing that adoption
6 of an application-based approach “allows for the resuscitation of otherwise
7 dormant claims and effectively rewards petitioners for waiting years after their
8 convictions become final to file federal habeas petitions that mix new and timely
9 claims with stale and untimely claims. Such a result contradicts the well-
10 recognized interest in the finality of state court judgments that Congress sought
11 to achieve in enacting the habeas statute of limitations.”).
12 We are “‘confident Congress did not want to produce’ a result in which a
13 timely claim ‘miraculously revive[s]’ untimely claims.” Zack,
704 F.3d at 926
14 (alteration in original) (quoting Fielder,
379 F.3d at 120)); accord DeCoteau,
774 F.3d
15 at 1192.
16 II. Clemente’s Claims Are Time-Barred Under
28 U.S.C. §
17 2244(d)(1)(A)
18 As noted, Clemente brought claims in his habeas petition that were
19 predicated on arguments that he advanced in the direct appeal from his
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1 conviction. The district court concluded that these claims were untimely under
2 28 U.S.C. § 2244(d)(1)(A). Clemente contends that even if the district court did
3 not err by utilizing the claim-by-claim approach, it should not have concluded
4 that these claims were time-barred. He argues that the district court erred in
5 calculating the statutory tolling period for these claims and by finding that
6 Clemente was not entitled to equitable tolling. 6 For the following reasons, we
7 agree with the district court that Clemente’s claims are time-barred.
8 A.
9 Clemente contends that the district court erred in calculating the statutory
10 tolling period for the claims arising from the direct appeal of his conviction and
11 that these errors caused the district court to mistakenly rule that Clemente was
12 not entitled to equitable tolling. We agree with Clemente that certain parts of the
13 district court’s statutory tolling calculations were erroneous. Nonetheless, his
6The respondent argues that we should not address these arguments because they are outside
the scope of the certificate of appealability. As noted, the certificate of appealability was
granted on the issue of “whether the district court properly dismissed some of Appellant’s
claims as time-barred when it applied 28 U.S.C. § 2244(d)(1) to his individual claims, rather than
to his entire petition.” Docket No. 25. Because these arguments go to whether the “district
court properly dismissed some of Appellant’s claims as time-barred,” we construe the certificate
of appealability to encompass these issues. In any event, even if we were to accept the
respondent’s narrow reading of the certificate of appealability, we have the discretion to
“expand a petitioner’s [certificate of appealability] when appropriate,” Green v. Mazzucca, 377
F.3d 182, 183 (2d Cir. 2004) (per curiam), and would choose to do so here.
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1 claims remain time-barred under the proper application of AEDPA’s statutory
2 tolling provisions and the equitable tolling doctrine.
3 As relevant here, AEDPA’s one-year limitations period runs from the date
4 on which a petitioner’s conviction became final. 28 U.S.C. § 2244(d)(1)(A); Smith
5 v. McGinnis,
208 F.3d 13, 15 (2d Cir. 2000) (per curiam). A petitioner’s conviction
6 becomes “final” under AEDPA “after the denial of certiorari or the expiration of
7 time for seeking certiorari.” Williams v. Artuz,
237 F.3d 147, 151 (2d Cir. 2001).
8 Clemente’s conviction became “final,” then, when the Supreme Court
9 denied his petition for a writ of certiorari on June 4, 2012. Clemente,
566 U.S. at
10 1035.
11 B.
12 AEDPA’s statutory tolling provision provides that the “time during which
13 a properly filed application for State post-conviction or other collateral review
14 with respect to the pertinent judgment or claim is pending shall not be counted
15 toward any period of limitation under this subsection.”
28 U.S.C. § 2244(d)(2).
16 “[A] state-court petition is ‘pending’ from the time it is first filed until finally
17 disposed of and further appellate review is unavailable under the particular
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1 state’s procedures.” Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff’d, 531
2 U.S. 4 (2000).
3 To repeat, the one-year statute of limitations applicable to Clemente’s
4 claims predicated on the arguments that he raised in his direct appeal started to
5 run on June 4, 2012. On December 27, 2012—206 days later—Clemente filed a
6 § 440.10 motion to vacate his conviction in state court. Therefore, on December
7 27, 2012, AEDPA’s statute of limitations paused with 159 days remaining on the
8 clock.
9 The state trial court denied Clemente’s motion to vacate on April 18, 2013.
10 The district court concluded the “AEDPA limitations started running again” on
11 that date. Clemente,
2019 WL 181304, at *4. We disagree. Because state court
12 applications are “pending” for the purposes of AEDPA’s tolling provisions “until
13 finally disposed of and further appellate review is unavailable under the
14 particular state’s procedures,” Bennett,
199 F.3d at 120 (emphasis added), the
15 limitations period did not begin to run again until May 18, 2013—the date on
16 which Clemente’s time to seek a discretionary appeal in the Appellate Division
17 expired, see
N.Y. Crim. Proc. Law §§ 450.15(1), 460.10(1).
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1 On September 11, 2013—116 days after May 18, 2013—Clemente filed his
2 first coram nobis petition in the Appellate Division. AEDPA’s statute of
3 limitations clock was paused again on that date, at which point 322 days of
4 Clemente’s one-year limitations period had expired.
5 The Appellate Division denied Clemente’s first coram nobis petition on May
6 4, 2016. The district court concluded that the “limitations began to run again” on
7 that date. Clemente, 2019 WL 181304, at *4. In so holding, the district court relied
8 on caselaw that predated relevant amendments to New York Criminal Procedure
9 Law § 450.90. Id. at *4 n.4 (“AEDPA’s statute of limitations is not tolled during
10 the interval when a petitioner seeks leave to appeal an Appellate Division’s
11 denial of a coram nobis motion because the coram nobis motion ceases to be
12 ‘pending’ when it is denied by the Appellate Division.” (quoting Clark v. Barkley,
13
51 F. App’x 332, 334 (2d Cir. 2002) (summary order))). After November 1, 2002,
14 New York Criminal Procedure Law § 450.90, as amended (see 2002 N.Y. Sess.
15 Laws ch. 498 (amending § 450.90)), affords petitioners the opportunity to seek
16 leave to appeal from the Appellate Division’s denial of a petition for writ of error
17 coram nobis alleging wrongful deprivation of appellate counsel to the Court of
18 Appeals. See
N.Y. Crim. Proc. Law § 450.90; People v. Jones,
100 N.Y.2d 606, 607
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1 (2003). Accordingly, the AEDPA clock did not restart until August 11, 2016—the
2 date on which the Court of Appeals denied Clemente leave to appeal the
3 Appellate Division’s ruling. 7
4 On August 11, 2016, Clemente had 43 days remaining to timely file his
5 federal habeas corpus petition. Those 43 days passed on September 23, 2016, and
6 Clemente’s time to comply with the statute of limitations thus expired as to those
7 claims. He did not file a federal habeas corpus petition until March 28, 2018.
8 Accordingly, under AEDPA’s statute of limitations and statutory-tolling
9 provisions, any habeas claim predicated on the arguments that Clemente raised
10 in his direct appeal then became, and now remains, untimely.
11 C.
12 Clemente asks that we nonetheless vacate the district court’s decision
13 dismissing his claims and remand for the court to reconsider its conclusion that
14 he is not entitled to equitable tolling.
7Although Clemente had 90 days after the Court of Appeals’s order to seek certiorari from the
Supreme Court, he did not file a petition for any such writ. AEDPA’s statute of limitations
therefore restarted immediately after the Court of Appeals’s order. Smaldone v. Senkowski, 273
F.3d 133, 138 (2d Cir. 2001) (explaining that we “exclude from tolling under
28 U.S.C.
§ 2244(d)(2) the ninety-day period during which a petitioner could have but did not file a
certiorari petition to the United States Supreme Court from the denial of a state post-conviction
petition.”).
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1 On August 25, 2016, the attorney who represented Clemente during the
2 first coram nobis proceeding before the Appellate Division wrote a letter to
3 Clemente informing him that the Court of Appeals had denied his request for
4 leave to appeal to that court. Dist. Ct. Docket No. 9, at 14. She informed him that
5 “[i]f you wish to file a petition for a writ of habeas corpus on a federal claim in
6 federal court, you must do so within 1 year and 90 days of [August 11, 2016].”
7 Id. Before the district court, Clemente explained that he understood his then-
8 lawyer’s advice to mean that he could timely “raise[] all his issues from [the]
9 direct appeal, de novo appeal, and post-conviction appeals” in a federal habeas
10 petition filed within a year and 90 days after August 11, 2016.
Id. at 7. He claims
11 that his then-lawyer’s advice was incorrect and that his reliance on that advice
12 caused him to file his federal habeas petition after the limitations period had run
13 on his claims relating to his direct appeal. The district court concluded that even
14 if his former lawyer’s advice was mistaken, “that mistake would not meet the
15 high bar needed to warrant equitable tolling.” Clemente,
2019 WL 181304, at *5.
16 We agree.
17 “Equitable tolling allows courts to extend the statute of limitations beyond
18 the time of expiration as necessary to avoid inequitable circumstances,” but
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1 should be applied only in “rare and exceptional circumstances.” Valverde v.
2 Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (alteration adopted) (citations omitted).
3 A federal habeas petitioner is entitled to equitable tolling “only if he shows
4 (1) that he has been pursuing his rights diligently, and (2) that some
5 extraordinary circumstance stood in his way and prevented timely filing.”
6 Holland v. Florida,
560 U.S. 631, 649 (2010) (citation and internal quotation marks
7 omitted).
8 Attorney error is, usually at least, “inadequate to create the ‘extraordinary’
9 circumstances equitable tolling requires.” Smaldone,
273 F.3d at 138; see also id.
10 (“[A]ttorney error, miscalculation, inadequate research, or other mistakes have
11 not been found to rise to the ‘extraordinary’ circumstances required for equitable
12 tolling.” (quoting Fahy v. Horn,
240 F.3d 239, 244 (3d Cir. 2001)). In the
13 § 2244(d)(1) context, the Supreme Court has expressly rejected the argument that
14 a petitioner’s counsel’s “mistake in miscalculating the limitations period entitles
15 [the petitioner] to equitable tolling.” Lawrence v. Florida,
549 U.S. 327, 336 (2007).
16 “Attorney miscalculation is simply not sufficient to warrant equitable tolling,
17 particularly in the postconviction context where prisoners have no constitutional
18 right to counsel.”
Id. at 336-37; see also Holland,
560 U.S. at 651-52 (“[A] garden
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1 variety claim of excusable neglect, such as a simple ‘miscalculation’ that leads a
2 lawyer to miss a filing deadline, does not warrant equitable tolling.” (citations
3 and internal quotation marks omitted)).
4 Clemente’s sole argument in support of his entitlement to equitable tolling
5 is that his lawyer told him the wrong deadline for filing a habeas petition that
6 included the arguments that he advanced in his direct appeal. But this
7 argument, as noted, has been squarely foreclosed by the Supreme Court.
8 Accordingly, the district court correctly determined that Clemente was not
9 entitled to equitable tolling and properly dismissed his claims as time barred.
10 CONCLUSION
11 We have considered Clemente’s remaining arguments on appeal and
12 conclude that they are without merit. For the reasons explained above, we
13 AFFIRM the order of the district court.
27
