Opposition Brief — Herbert v. Cain

3

application was denied without published opinion on June

20, 2000. People v. Cain, 735 N.E.2d 419 (N.Y. 2000). Cain

did not seek a writ of certiorari from this Court.

State Collateral Challenges

On August 24, 2000, Cain filed a pro se motion,

pursuant to section 440.10 of the New York Criminal

Procedure Law, seeking to vacate his judgment of convic-

tion, arguing that the evidence that led to his conviction

consisted of the fruits of the confession illegally obtained

from Rosario. C.A. 24-26. On October 30, 2000, the Su-

preme Court of New York, Queens County, denied the

motion. Id. at 52. On November 28, 2000, Cain sought

permission to appeal the denial. Jd. The Second Depart-

ment denied Cain’s request on February 5, 2001. Id. at 53.

On Friday, December 7, 2001, Cain completed an

application to the Second Department for a writ of error

coram nobis, alleging ineffective assistance of counsel on

his direct appeal. See C.A. 25, 96. Cain argued that his

appellate counsel, among other omissions, failed to argue

that Rosario’s statement to the police implicating Cain

was coerced. Jd. at 53. Cain submitted the coram nobis

application to prison officia!s for mailing on Monday,

December 10, 2001.

The Second Department, however, did not stamp

Cain’s coram nobis application as “received” until Decem-

ber 17, 2001, seven days after it was submitted to prison

authorities. See C.A. 98. The record contains no explana-

tion for this delay. On April 29, 2002, the Second Depart-

ment denied Cain’s coram nobis application. People v.

Cain, 708 N.Y.S.2d 413 (N.Y. App. Div. 2002).

4

The Federal Petition for a Writ of Habeas Corpus

Less than two months later, on June 26, 2002, Cain

submitted to prison authorities for mailing his federal

habeas petition, alleging violations of the Fourth, Sixth, and

Fourteenth Amendments to the U.S. Constitution. C.A. 6-31,

46. Specifically, the petition alleged that the lineup was

unduly suggestive, that Cain’s appellate counsel was uncon-

stitutionally ineffective, and that his conviction was the

result of an unlawfully obtained confession. Jd. at 6-31. The

petition was not marked as received by the clerk of the

Eastern District of New York until July 3, 2002. Id. at 6. °

The Superintendent of Attica Correctional Facility,

who is the petitioner before this Court, argued to the

district court that Cain’s habeas petition should be dis-

missed as time-barre under the one-year statute of

limitations of the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”). The Superintendent argued that

the “prison mailbox rule,” under which the papers of pro se

prisoners are considered filed at the moment of their

delivery to prison officials for mailing, should not be

applied to Cain’s postconviction filings. The district court

agreed, ruling that Cain’s coram nobis application had

been “filed” in the Second Department on the date it was

marked as received by the court, December 17, 2001; that

Cain’s federal habeas petition was “filed” on July 3, 2002,

the date it was marked as received by the federal court;

and therefore that Cain’s federal habeas was untimely.

Pet. at 2a-4a.” (The district court did not specify how many

days past AEDPA’s one-year deadline the petition had

* Citations to “Pet.” refer to the Petition for a Writ of Certiorari

filed by Superintendent Herbert and its accompanying appendix.

5

been filed, but the court’s rulings suggest that the petition

would have been untimely by fourteen days.) Had the district

court applied the prison mailbox rule both to Cain’s state

coram nobis application and to his federal habeas petition,

however, Cain’s federal habeas would have been timely by

one day.

The district court explained its decision not to apply

the mailbox rule to Cain’s state coram nobis application by

asserting that “[s]tate law controls the question of when a

postconviction motion is considered properly filed” and

that “[iJn New York, the date of filing is the date that the

motion is received by the clerk of the court; it is not the

date that the prisoner gives the document to corrections

authorities for filing.” Pet. at 2a-3a. The district court did

not explain its decision not to apply the mailbox rule to the

filing of Cain’s federal habeas petition itself — a decision that

was directly contrary to the established law in the Second

Circuit. See Noble v. Kelly, 246 F.3d 98, 97-98 (2d Cir.), cert.

denied, 534 U.S. 886 (2001) (extending the prison mailbox

rule to the filing of federal habeas petitions).

On May 6, 2003, Cain petitioned the district court for

a Certificate of Appealability (“COA”), which the court

denied. Cain then moved for a COA in the Second Circuit,

which was granted on November 13, 2003. The Second

Circuit’s order states in relevant part: “Upon due considera-

tion, it is ORDERED that the motion is granted on the issue

of whether the prison mailbox rule applies to state filings

that toll the AEDPA’s statute of limitations.” Pet. at 6a.

On appeal, the Second Circuit decided this case in an

unpublished summary order.’ The order reiterated the

* See 2d Cir. R. 0.23 (“Since [summary orders] do not constitute

formal opinions of the court and are unreported or not uniformly

(Continued on following page)

6

court’s holding in Noble that the prison mailbox rule

applies to the filing of federal habeas petitions and stated

that Cain’s federal habeas should therefore be deemed as

having been filed on June 26, 2002. Pet. at 8a. The Second

Circuit further ruled that, for the limited purpose of

calculating AEDPA tolling time, the prison mailbox rule

should also be applied to Cain’s coram nobis application.

Id. For this aspect of its ruling, the court referred to its

published decision in Fernandez v. Artuz, 402 F.3d 111 (2d

Cir. 2005), cert. pending, Sup. Ct. Index No. 04-1540,‘ a case

that was heard in tandem with Cain’s and which also ad-

dressed whether a federal court in calculating AEDPA tolling

time should apply the prison mailbox rule to state postcon-

viction motions.

In Fernandez, the Second Circuit reasoned that

application of the mailbox rule to state filings for the

purpose of calculating AEDPA tolling time “is consonant

with AEDPA’s goals of ‘furthering the principles of comity,

finality, and federalism.’” 402 F.3d at 115 n.3, quoting

Williams v. Taylor, 529 U.S. 420, 436 (2000). Applying the

mailbox rule, the court stated, “grants the full statute of

limitations for pro se prisoners attempting to reach the

courts” and “evinces no disrespect for the competence of

state courts, their procedures, or the stability of state

verdicts.” 402 F.3d at 115-n.3. The Second Circuit also

noted that its result was consistent with this Court’s

ruling in Artuz v. Bennett, 531 U.S. 4 (2000), because the

petitioner’s coram nobis application was “properly filed”

available to all parties, they shall not be cited or otherwise used in

unrelated cases before this or any other court”).

* Counsel for Respondeat Cain is also representing Respondent

Fernandez in opposing the Superintendent of Green Haven Correc-

tional Facility’s petition for a writ of certiorari.

7

under state law and procedure. Fernandez, 402 F.3d at

114, 116. Because New York has no deadline for the filing

of coram nobis applications, the issue of timeliness does

not arise during the state’s consideration of such an

application. Jd. at 116. Thus, noted the Second Circuit,

there “is no and can be no real conflict between state law

and federal law” in applying the mailbox rule to a New

York coram nobis application when a federal court calcu-

lates AEDPA tolling time. Jd. |

,%

v

REASONS FOR DENYING THE WRIT

I. The Second Circuit Properly Exercised Juris-

diction Over Respondent’s Habeas Appeal,

Consistent With This Court’s Decisions In

Slack v. McDaniel And Miller-Eil v. Cockrell, As

Well As With The Holdings And Practices Of

Other Circuits.

A wrrtificate of appealability (“COA”) may issue under

28 U.S.C. § 2253(c)(2) only “if the applicant has made a

substantial showing of the denial of a constitutional right.”

The statutory language places the onus on the applicant to

make this showing, but an appellate court, when deciding

whether to grant a COA, may make only a “threshold

inquiry” into whether the necessary showing has been

made. Slack v. McDaniel, 529 U.S. 473, 482, 485 (2000).

The inquiry “requires an overview of the claims in the

habeas petition and a general assessment of their merits,”

but “does not require full consideration of the factual or

legal bases adduced in support of the claims. In fact, the

statute forbids it.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). When a district court denies a habeas petition

on procedural grounds without reaching the petition’s

8

underlying constitutional claims, as happened in this case,

a COA applicant must show that reasonable jurists would

find it debatable both “whether the district court was

correct in its procedural ruling” and “whether the petition

states a valid claim of the denial of a constitutional right.”

Slack, 529 U.S. at 484.

The Superintendent does not argue that Respondent

Cain failed to meet the procedural component of this test,

see Pet. at 12-17, as the district court’s decision not to

apply the mailbox rule to Cain’s state coaram nobis applica-

tion when calculating the deadline for filing his federal

petition was at the very least “debatable.” The jurisdic-

tional issue raised by the Superintendent is thus whether

it was also debatable that Cain stated a valid claim of the

denial of a constitutional right. To have done so, Cain

must have shown that reasonable jurists “could conclude

the [constitutional] issues presented are adequate to

deserve encouragement to proceed further,” by proving

“something more than the absence of frivolity or the

existence of mere good faith” on his part. Miller-El, 537

U.S. at 327, 328 (internal quotation marks omitted).

Importantly, “a COA does not require a showing that the

appeal will succeed. Accordingly, a court of appeals should

not decline the application for a COA merely because it

believes the applicant will not demonstrate an entitlement

to relief.” Id. at 337.

Cain easily satisfied this threshold inquiry. In his

federal habeas petition and in his application for a COA,

both of which were filed pro se, Cain alleged that his

Fourth Amendment rights were violated in part because

the direct fruits of an unlawful, coerced confession led to

his conviction. See C.A. 26, 114-15, citing Wong Sun v.

United States, 371 U.S. 471, 485 (1963) (holding evidence

9

from such confessions to be excludable). As described

above, Cain’s arrest occurred only after he was identified

in the confession of a codefendant, Amaury Rosario, who

was acquitted of all charges after testifying about how

police used force to cuerce his confession. Before Rosario’s

“confession,” the state’s pivotal witness, Eric Caraballo,

was unable to identify Cain as the gunman, and in front of

the grand jury Caraballo testified only that the perpetra-

tor was “black” and “tall” — adding “that’s the only thing I

could see.” But at Cain’s trial, which took place after

Rosario’s “confession,” Caraballo testified that he did in

fact see the gunman’s face, which he would “never forget.”

Cain also alleged that his due process rights were

violated by the use of an unduly suggestive lineup. See

C.A. 10-13. As noted above, during the initial police

investigation, the gunman was described as being between

18 and 21 years old, heax ;-set and between 5'10" and 6’

tall. But Cain, at 25 years old, 250 pounds, and 6'2" tall,

was the only lineup part’:ipant even close to matching

that description; the other five were all at least 30 years

“old and, as the arresting officer acknowledged, none of

them matched Cain’s weight or height. In addition, the

police department photograph of the lineup rendered any

judicial review of the lineup difficult, because it clearly

depicted only Cain and two other participants. (The other

three were “indescribable or unobservable.”) Jd. at 10-11.

There can be no doubt that these claims of constitutional

violations — as well as Cain’s additional allegation of ineffec-

tive assistance of appellate counsel, in that the appointed

counsel on his appeal did not raise the issue of the coerced

confession — present non-frivolous issues that reasonable

jurists could conclude are “adequate to deserve encourage-

ment to proceed further.” The Second Circuit therefore acted

10

properly in granting Cain a COA, which it did “[u]pon due

consideration” following the district court’s denial of Cain’s

habeas petition on timeliness grounds. See Pet. at 6a.

The Superintendent, however, distorts this Court’s

holding in Slack to argue that a COA cannot issue unless

the district court or court of appeals makes a “finding”

about the “merits” of a petitioner’s»constitutional claim.

Pet. at 9, 11, 13, 16. But a COA determination is not a

“merits determination.” Cf. Pet. at 16. Rather, it is “a

separate proceeding, one distinct from the underlying

merits.” Miller-El, 537 U.S. at 342. In fact, this Court has

explicitly cautioned that an appellate court may not “first

decid[e] the merits of an appeal, and then justify[] its

denial of a COA based on its adjudication of the actual

_ merits,” because doing so would be “in essence deciding an

appeal without jurisdiction.” Miller-El, 537 U.S. at 336-37.

Contrary to the argument of the Superintendent, there-

fore, the Second Circuit was in no way required to make a

special finding about the merits of Cain’s constitutional

claims; it was enough that Cain had made a clear showing

in his habeas petition and in his COA that reasonable

jurists could debate whether his constitutional rights were

violated. To accept the Superintendent’s argument would

be to turn Slack and Miller-El upside down.’

The Superintendent is also plainly wrong to suggest

that the Second Circuit “routinely” exercises jurisdiction

over cases in which no substantial showing of the denial of

a constitutional right has been made. Cf. Pet. at 16. On

: * If the Second Circuit is to be faulted in any way, it is that the

court did not indicate in its November 10, 2003 order on which issues

Cain had made a substantial showing, see Pet. at 6a, but such a minor

omission surely does not merit Supreme Court review.

11

the contrary, in case after case, the Second Circuit has

exercised great care to ensure that it does not grant COAs

to applicants who fail Slack’s two-prong test. See, e.g.,

Morales v. Greiner, 381 F.3d 47, 48 (2d Cir. 2004) (denying

pro se COA motion for failure to make substantial show-

ing); United States v. Doe, 365 F.3d 150, 154 (2d Cir.), cert.

denied, 125 S.Ct. 449 (2004) (conditioning potential COA

upon applicant making “substantial showing of the denial

of {his} constitutional right [to counsel]”); Jones v. Keane,

329 F.3d 290, 297 (2d Cir.), cert. denied, 540 U.S. 1046

(2003) (liberally construing prisoner’s appellate brief as

COA motion, but denying COA for failure to make sub-

stantial showing); Rudenko v. Costello, 322 F.3d 168, 170

(2d Cir. 2003) (vacating consolidated COA granted to 16

unrelated petitioners because “each application will

require particularized consideration” of “whether the

applicant has sufficiently made ‘a substantial showing of

the denial of a constitutional right’”); Eltayib v. United

States, 294 F.3d 397, 400 (2d Cir. 2002) (denying pro se COA

motion for failure to show reasonable jurists would debate

constitutional claims); United States v. Outen, 286 F.3d 622,

634, 641 (2d Cir. 2002) (liberally construing letter to court

as COA request, but denying motion due to failure of merits

brief to make substantial showing); Kellogg v. Strack, 269

F.3d 100, 104 (2d Cir. 2001) (denying pro se COA motion for

failure to satisfy Slack’s procedural component).

Given this considerable body of case law, it is telling that

the Superintendent cites only two published cases for the

sweeping proposition that it is “common practice” for courts

in the Second Circuit to violate the Slack requirements.” Cf.

* The Superintendent also cites two unpublished cases in which

district courts in the Second Circuit issued COAs on timeliness issues

(Continued on following page)

12

Pet. at 13-14, citing Baldayaque v. United States, 338 F.3d

145 (2d Cir. 2003) and Harrison v. Artuz, 105 F. Supp. 2d

101 (E.D.N.Y. 2000), aff’d sub nom. Clark v. Barkley, No.

00-2695, 51 Fed. Appx. 332 (2d Cir. Oct. 22, 2002) (unre-

ported). Yet neither of these cases actually supports the

Superintendent’s conclusion. In Baldayaque, the district

court granted a COA on a timeliness issue only after

stating that the petitioner had “a constitutional claim of

arguable merit” — thereby satisfying the Slack require-

ments. See United States v. Baldaya;ue, Nos. 3:95CR81,

3:99CV2272, 2002 WL 31094962 at *6 (D.Conn. Sept. 6,

2002) (unreported). And on appeal, the government explic-

itly asserted that the Second Circuit did indeed have

appellate jurisdiction pursuant to the district court’s

issuance of a COA. See Brief for the United States of

America at viii, Baldayaqgue (No. 02-2611), available at

without also specifying on what constitutional issues the petitioners

had made the requisite threshold showings. See Pet. 13-14, citing

Brigian v. Artuz, No. 01-2389, 37 Fed. Appx. 559 (2d Cir. Jun. 18, 2002);

Bond v. Walsh, No. 01-CV-0776, 2002 WL 460046 (E.D.N.Y. Feb. 12,

2002). But because Bond and Brigian were resolved by unreported

summary orders, it is possible that the petitioners in both cases did in

fact make the requisite constitutional showing even though the courts’

orders mentioned only the procedural issues in need of legal clarifica-

tion. In Bond, for example, the district court was careful to mention all

seven of the petitioner’s underlying constitutional claims, suggesting

the petitioner may have met Slack’s threshold inquiry. See Bond, 2002

WL 460046 at *1.

Such an inference in both cases is supported by the fact that in

neither case did the state government respondent challenge the Second

Circuit’s appellate jurisdiction. See Brief for Respondent-Appellee,

Bond, 53 Fed. Appx. 162 (2d Cir. Sept. 27, 2002) (No. 02-2157), avail-

able at 2002 WL 323919865; Brief for Respondent-Appellee, Brigian (No.

01-2389) (on file with Respondent). Noteably, the state superintendent

in this case does make such a challenge, despite being represented by

the District Attorney for Queens County, New York, who also repre-

sented the state officials in both Bond and Brigian.

13

2003 WL 23336105. Likewise, in Harrison, even though

the district court had issued COAs to both petitioners on a

timeliness issue without specifying whether they had met

Slack’s constitutional requjrement, the government did

not contest the Second Circuit’s jurisdiction on appeal. See

Appellee’s Brief and Appendix, Harrison v. Artuz, 12 Fed.

Appx. 56 (2d Cir. June 15, 2001) (No. 00-2445), available

at 2000 WL 33981691; Appellee’s Brief and Appendix,

Clark v. Barkley, 51 Fed. Appx. 332 (2d Cir. Oct. 22, 2002)

(No. 00-2695), available on Westlaw (no WL number).

Notably, the Superintendent does not cite a single case

other than Cain’s — either published or unpublished — in

which the Second Circuit supposedly granted a COA to an

applicant who failed to make the requisite constitutional

showing. In the one case that Respondent Cain could find

in which this occurred, Catlett v. Greiner, No. 02-2121, 76

Fed. Appx. 345, 347 (2d Cir. Jul. 2, 2003) (unreported), the

Second Circuit realized its error and immediately vacated

its own COA, ruling that even though the case presented

an important procedural issue, the petitioner had failed to

make a substantial showing of the denial of a constitu-

tional right. A fair look at the case law, therefore, reveals

that the Second Circuit carefully follows the dictates of

Slack, Miller-El, and 28 U.S.C. § 2253(c)(2), just as the

court did in this case.

Moreover, the other courts of appeals also carefully

adhere to these requirements, despite the Superinten-

dent’s attempt to manufacture a circuit split where none

exists. Cf, Pet. at 14-15. To support his claim that several

circuits outside the Second “appear to exercise jurisdiction

frequently in the absence of the requisite showing,” the

Superintendent selectively cites five cases from around the

country, three of which are unpublished dispositions and

14

none of which sustains his conclusion. See Day v. Crosby,

391 F.3d 1192 (11th Cir. 2004); Walker v. Crosby, 341 F.3d

1240 (11th Cir. 2003); Walker v. Warden, No. 04-30607, 125

Fed. Appx. 568 (5th Cir. Apr. 5, 2005) (per curiam) (unre-

ported); Franklin v. Dretke, No. 04-40444, 106 Fed. Appx.

926 (5th Cir. Aug. 25, 2004) (per curiam) (unreported);

Wampler v. Mills, No. 02-5447, 60 Fed. Appx. 594 (6th Cir.

Apr. 2, 2003) (unreported). In both Day v. Crosby and

Walker v. Crosby, the two published Eleventh Circuit

decisions cited by the Superintendent, both the federal

and state government respondents explicitly asserted that

the court had jurisdiction to hear the appeals. See Answer

Brief of Appellee at 1, Day v. Crosby (No. 04-10778) (as-

serting the court’s jurisdiction over the issue “as framed in

the certificate of appealability”) (on file with Respondent);

Answer Brief of Appellee at 1, Walker v. Crosby (No. 01-

12491) (“This court has jurisdiction pursuant to 28 U.S.C.

section 2253”) (on file with Respondent).

In Franklin v. Dretke, Walker v. Warden, and Wampler

v. Mills, the cursory nature of the unpublished dispositions

makes it difficult to determine precisely what conclusions

the courts drew or what kind of showing the petitioners

made,’ but all three cases suggest that the courts at-

tempted to adhere to Slack’s mandates. In Walker v.

Warden, the Fifth Circuit held that it could not rule out

that reasonable jurists might debate “whether the claims

raised .. . are valid claims of a constitutional deprivation.”

125 Fed. Appx. at 568. In Franklin, the court granted a

COA, vacated the district court’s decision for procedural

” See 5th Cir. R. 47.5.4 (“Unpublished opinions . .. are not prece-

dent”); 6th Cir. R. 28g) (“Citation of unpublished decisions in briefs . . .

is disfavored”).

15

error, and then remanded the case “for consideration of the

constitutional claims set forth in [the prisoner’s] habeas

petition.” 106 Fed. Appx. at 926. In Wampler, the Sixth

Circuit issued a COA to an applicant whose habeas petition

raised four significant underlying constitutional claims, all of

which may have satisfied the requisite substantial showing;

the district court had not analyzed those claims only because

the state immediately sought summary judgment on claim

preclusion grounds. 60 Fed. Appx. at 595.

This handful of cases simply does not support the

Superintendent’s proposition that “the Second Circuit and

other circuit courts routinely exercise jurisdiction” over

habeas appeals while ignoring the requirements of 28 U.S.C.

§ 2253(cX2). See Pet. at 16. Rather, a vast body of published

case law — conveniently left out of the Superintendent’s

analysis — in each of the allegedly delinquent circuits demon-

strates the universal recognition that Slack and Miller-El

are the law of the land. See, e.g., Centobie v. Campbell, 407

F.3d 1149, 1151 (11th Cir. 2005) (per curiam) (denying COA

for applicant’s failure to make substantial showing); Frank-

lin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000) (hold-

ing court could not “grant a COA on a procedural issue” if

reasonable jurists “would not find it debatable both whether

‘the petition states a valid claim of the denial of a constitu-

tional right’ and whether ‘the district court was correct in its

procedural ruling’”); Hughes v. Dretke, 412 F.3d 582, 590 (5th

Cir. 2005) (denying COA because applicant did not show

“reasonable jurists could disagree with the district court’s

denial of any of his claims, nor could jurists conclude that

any of [his] claims deserve encouragement to proceed fur-

ther”); Cardenas v. Dretke, 405 F.3d 244, 254 (5th Cir. 2005)

(denying COA for applicant’s failure to show “reasonable

jurists could disagree with the district court’s denial” of any

16

of his claims); Houser v. Dretke, 395 F.3d 560, 561 (5th Cir.

2004) (holding that applicant did not prove “reasonable

jurists could find it debatable that the petition states a valid

claim of the denial of a constitutional right”); Cyars v. Hof-

bauer, 383 F.3d 485, 492 (6th Cir. 2004) (denying COA

because “reasonable jurists could not find the district court’s

assessment of [applicant’s due process] claim debatable or

wrong”); Frazier v. Huffman 343 F.3d 780, 788-89 (6th Cir.

2003) (holding that district court erred in issuing blanket

COA without analysis because COA may issue “only if the

applicant has made a substantial showing of the denial of a

constitutional right” as “[t]he language of § 2253(c) is manda-

tory” (internal quotation marks omitted)).°

* In fact, all the circuits strictly adhere to Slack’s mandates. See, e.g.,

United States v. Lambros, 404 F.3d 1034, 1037 (8th Cir.), cert. denied, 125

S.Ct. 2953 (2005) (denying COA for failure to make “a substantial showing

of any error, much less constitutional error”); Dalton v. Battaglia, 402 F.3d

729, 738 (7th Cir. 2005) (declining to expand district court’s COA to include

additional claims because applicant failed to show “reasonable jurists could

debate whether .. . the issues presented were adequate to deserve encour-

agement to proceed further”); United States v. Vargas, 393 F.3d 172, 174

(D.C. Cir. 2004), reh’g denied, 415 F.3d 23 (D.C. Cir. 2005) (denying COA

because applicant could not make substantial showing since claim raised

no constitutional question); Allen v. Lee, 366 F.3d 319, 324 (4th Cir. 2004)

(en banc) (denying COA for claim’s failure to raise “substantial constitu-

tional question upon which reasonable jurists could disagree”); United

States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003), cert. denied, 540 U.S.

1208 (2004) (denying multiple COAs because prisoner did not show that

reasonable jurists “would find it debatable whether the petition states a

valid claim of the denial of a constitutional right ... [or] whether the

district court was correct in its procedural ruling”); United States v.

Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003) (denying COA because

applicant did not show reasonable jurists “would find it debatable whether

... {his motion] states a valid claim of the denial of a constitutional right”);

DeCato v. United States, No. 00-2118, 51 Fed. Appx. 888, 889 (1st Cir. Nov.

27, 2002) (per curiam) (unreported) (denying COA for failure to show

“reasonable jurists could debate whether ... the issues presented were

(Continued on following page)

17

Thus, there are no “conflicting practices” among the

circuits for this Court to resolve. Cf. Pet. at 15. The re-

quirements for the granting of a COA expressed in 28

U.S.C. § 2253(c)(2), and elucidated by this Court in Slack

and Miller-El, are clear and well-established. These

requirements were followed by the Second Circuit in this

case, and by the Second Circuit and every other circuit in

scores of other cases.

II. The Second Circuit’s Unpublished Order Apply-

ing The Prison Mailbox Rule To Cain’s Coram

Nobis Application Does Not Merit Supreme

Court Review Because The Order Is Consistent

With This Court’s AEDPA Jurisprudence And Has

No Effect On New York Law Or Procedure. The

Fact That Only A Few Circuits Have Addressed

This Prison Mailbox Issue, Under A Variety Of

Factual Circumstances And Dependent Upon Idio-

syncrasies In State Procedural Rules, Further

Counsels Against Review Until A Clear Pattern Of

Decisions Emerges.

A. Because Cain’s coram nobis application was

properly filed under New York law, and the

Second Circuit’s ruling applies only to the fed-

eral proceedings, the decision will have no ef-

fect on New York state law or procedure.

It is undisputed that Respondent Cain’s state coram

nobis application was “properly filed” under the terms of

adequate to deserve encouragement to proceed further”); Szuchon v.

Lehman, 273 F.3d 299, 312, 316 (3d Cir. 2001) (denying COA on due

process claims for failure to make “a substantial showing of the denial

of a constitutional right”).

18

28 U.S.C. § 2244(d)(2) and in accordance with this Court’s

holding in Artuz v. Bennett, 531 U.S. 4 (2000), because “its

delivery and acceptance [were] in compliance with the

applicable laws and rules governing filings” in the state of

New York, id. at 8, and therefore appropriately tolled

AEDPA’s statute of limitations. Not only did the New York

appellate division treat Respondent Cain’s application as

having been properly filed, but the issue of timing never

arose during his state proceedings because New York has

no deadline for the filing of coram nobis applications. See

People v. Langfelt, 249 N.Y.S.2d 949 (N.Y. App. Div. 1964)

(requiring lower court to consider coram nobis application

even though it was filed two years after petitioner had

been released from prison).

Importantly, the Second Circuit’s opinion in Fernan-

dez v. Artuz, 402 F.3d 111 (2d Cir. 2005), did not hold that

the mailbox rule can be used to overcome a state court’s

prior determination of untimeliness or improper filing.

Rather, the opinion was carefully crafted to apply only to

cases such as Cain’s in which it is clear that a prisoner’s

postconviction application was properly filed under state

law. See id. at 114 (“The timeliness of Fernandez’s habeas

petition depends upon when his state coram nobis petition

was ‘properly filed’ pursuant to AEDPA’s tolling provi-

sion”). Because untimely petitions are not “properly filed,”

Fernandez does not permit federal courts to treat untimely

state petitions as timely. The Superintendent’s assertion

that the Second Circuit in Fernandez advocated “wholesale

19

adoption of the mailbox rule,” see Pet. at 24-25, is there-

fore simply wrong.”

Because the filing date of Cain’s coram nobis applica-

tion is irrelevant to New York law and procedure, New

York state courts will never be faced with the question of

whether the prison mailbox rule, as announced by this

Court in Houston v. Lack, 487 U.S. 266 (1988) (holding

that pro se prisoners’ notices of appeal are “filed” upon

their delivery to prison officials for forwarding to the

court), should apply to state coram nobis applications. As a

result, there can be no conflict between New York law and

the Second Circuit’s decision to follow Houston and apply

the prison mailbox rule to Cain’s properly filed coram

nobis application solely for the purpose of calculating

federal tolling time under AEDPA.

Moreover, because the Second Circuit’s ruling guides

only a federal court’s application of federal law, New York

courts are free to decide on their own whether to apply the

prison mailbox rule for state purposes. The Second Circuit’s

decision to apply the prison mailbox rule in the present case

“solely for the purpose of calculating a federal statute of

limitations” does not and cannot have any impact upon

New York procedure or the state’s ability to establish its

own filing requirements, because a federal court can apply

* The Superintendent also incorrectly suggests that the Second

Circuit (presumably in Fernandez, as he provides no citation) “contra-

dicted itself when it suggested that [New York] has no rule determining

the time of filing.” Pet. at 25. He appears to conflate rules that define

how filing is to be construed with rules that prescribe a deadline after

which filing, however construed, may not be accepted. The Second

Circuit’s statement about New York law’s lack of a deadline for coram

nobis applications, see Fernandez, 402 F.3d at 115, pertains to the latter

type of rule.

20

the mailbox rule to a federal habeas petition only after state

proceedings have been completed. See Fernandez, 402 F.3d

at 115 n.3. Thus, the only real consequence of the Second

Circuit’s ruling in Fernandez is that prisoners who have

properly filed a postconviction motion in New York will

receive the benefit of the full year of AEDPA’s statute of

limitations, rather than be forced to file early to compensate

for mailing delays or clerical error. See id.

B. All but one of the Circuits that have addressed

this issue agree that state law should not con-

trol how federal courts calculate time tolled

under AEDPA’s statute of limitations.

In addition to the Second Circuit in Fernandez and

Cain, only the Fifth, Ninth, and Tenth Circuits have

addressed whether a federal court can apply the prison

_mailbox rule to a properly filed state application when

calculating the amount of time tolled under AEDPA. See

Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000), cert.

denied, 533 U.S. 941 (2001); Adams v. LeMaster, 223 F.3d

1177 (10th Cir. 2000), cert. denied, 531 U.S. 1195 (2001);

Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999) (per

curiam), cert. denied, 527 U.S. 1057 (2000). The decisions

*” The Superintendent’s citation of Vroman v. Brigano, 346 F.3d 598

(6th Cir. 2003), is inapposite because, unlike the state petitions in Anthony,

Coleman, Fernandez, and LeMaster, the state petition in Vroman was

governed by a filing deadline. 346 F.3d at 602. The Vroman petitioner had

missed this deadline and so his petition had never been properly filed and

was therefore never under consideration by any state court. Jd. at 603-604.

Vroman therefore stands for the uncontroversial position, not inconsistent

with the Second Circuit’s ruling in Fernandez, that the prison mailbox rule

cannot be used to overcome a state court's prior determination that a

postconviction motion had been untimely filed. See Vroman, 346 F.3d at 604

(“this court will not reconsider the Ohio state courts’ determination that

Vroman’s postconviction petition was untimely’).

21

in Anthony, Coleman, Fernandez, and LeMaster defy easy

compariso: because each one is based on distinct factual

circumstanc. s and procedural ambiguities in varying state

filing rules.” Nonetheless, the circuits are in far greater

agreement than the Superintendent portrays them to be.

Cf. Pet. at 19-20. In fact, far from the Second Circuit being

“squarely in conflict with the other circuit courts,” id., the

Second, Fifth, and Ninth Circuits all agree that state law

should not control how a federal court calculates the

amount of time tolled under AEDPA; only the Tenth

Circuit has held otherwise.

Like the Second Circuit in Fernandez, the Ninth

Circuit in Anthony held that once it is clear that a state

application has been “properly filed,” federal courts are to

apply the federal mailbox rule for the purpose of calculat-

ing AEDPA tolling time. 236 F.3d at 575. The petitioner in

Anthony had properly filed a state postconviction motion,

but the Supreme Court of California had marked the

petition as filed upon receipt, not mailing. Jd. at 571, 575.

The state petition’s filing date, just as in Respondent

Cain’s case, made no difference to the outcome of the state

case, but was determinative of whether the federal habeas

petition was time-barred — and the federal court deter-

mined that the federal rule should apply. Jd. at 574-75.

“ The Fifth, Ninth, and Tenth Circuits reiterated their holdings in,

respectively, Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001) (citing

Coleman as construing request that mailbox rule be applied to pro se

habeas filing as “request for equitable relief”); Saffold v. Newland, 224

F.3d 1087, 1091 (9th Cir.), amended by 250 F.3d 1262, 1268 (9th Cir.

2000), overruled on other grounds, Carey v. Saffold, 536 U.S. 214 (2002);

and Moore v. Gibson, 250 F.3d 1295, 1296, 1298 (10th Cir.), cert. denied,

534 U.S. 1000 (2001).

22

In Coleman, the Fifth Circuit was faced with a-pro se

petitioner who presented evidence that his Texas state

postconviction motion had been mailed six weeks before

the court stamped it as “filed.” 184 F.3d. at 400. The result

of the delay, apparently due to a state clerk’s filing error,

was that the petitioner’s federal habeas petition would be

time-barred if the federal court did not apply the mailbox

rule to its consideration of the length of time tolled by the

state motion. See id. at 402. But because Texas habeas

petitions, like New York coram nobis applications, have no

filing deadline, no Texas court was required to decide

whether Texas would apply the mailbox rule to Coleman’s

petition, and at the time, no Texas case law revealed

whether the mailbox rule would apply in such circum-

stances.” Moreover, Texas procedural rules were ambigu-

ous on the subject. The petitioner pointed to Tex. R. Civ. P.

5, which provides that filing commences upon mailing,

while the respondent argued that postconviction proceed-

ings were controlled by Tex. R. Crim. P. art 11.07, which

makes no mention of the timing of filing. See Coleman, 184

F.3d at 400, 402 n.1; Tex. R. Civ. P. 5 (“A legible postmark

affixed by the United States Postal Service shall be prima

facie evidence of the date of mailing”); Tex. R. Crim. P. art

11.07 (requiring only that an application for a writ of

habeas corpus be filed “after final conviction in a felony

case”). Faced with such conflicts and ambiguities, the Fifth

Circuit ruled that it would not attempt to “interpret state

* The Texas Supreme Court subsequently announced a prison

mailbox rule based on Houston’s principles of fairness in Warner v.

Glass, 135 S.W.3d 681, 684 (Tex. 2004) (“we decline to penalize a pro se

litigant for failing to obtain a postmark or a file-stamp when the

litigant has timely placed the document in the prison mail system, the

only delivery system to which he or she has access”).

23

rules of filing [or] to address the filing systems of state

courts.” 184 F.3d. at 402. Like the Second and Ninth Circuits,

the Fifth Circuit decided that a federal rule should control.

But rather than apply the federal prison mailbox rule, which

had become the presumptive rule for the vast majority of pro

se filings in federal courts, see Part II.C, infra, the Fifth

Circuit decided instead to examine for itself the facts of the

prisoner’s case to see if it merited application of the federal

equitable tolling doctrine. See 184 F.3d. at 402.

The Tenth Circuit, on the other hand, held in LeMas-

ter that principles of comity required federal courts to

defer to state law on the question of whether to apply the

federal mailbox rule when calculating federal tolling time

under AEDPA. 223 F.3d at 1181. The court reached that

conclusion even though New Mexico, too, had no filing

deadline for the state habeas petition at issue, and as a

result, no state law or cases addressed whether New

Mexico courts would apply the mailbox rule to such peti-

tions. See id. at 1181 n.3, 1182. The court therefore was

forced to engage in a tortuous attempt to “predict” whether

the New Mexico Supreme Court would apply the mailbox

rule to state habeas petitions — even though New Mexico

courts would never face that question given the absence of

a filing deadline. See id. at 1182-83. The Tenth Circuit

concluded that the New Mexico Supreme Court “at the

very least” would require receipt by the clerk before a

petition would be treated as having been filed, but left

open the question of whether actual filing by the clerk was

necessary.” See id.

“In a later case dealing with Oklahoma filing law, the Tenth

Circuit chose not to discern on its own what the state’s law would be in

regard to the mailbox rule, and instead, because Oklahoma had a

(Continued on following page)

24

The Superintendent, therefore, has greatly exagger-

ated the extent to which the mailbox issue presented in

this case has “openly divided the circuit courts of appeals.”

Cf. Pet. at 17. Three out of the four circuits to have dealt

with the question declined to permit ambiguous state

filing rules to control how federal courts interpret the

federal AEDPA filing deadline. Thus there is no urgent

need for Supreme Court intervention at this time.

C. Applying the federal mailbox rule to state postcon-

viction proceedings for the purpose of calculating

federal tolling time under AEDPA follows Hous-

ton’s mandate to treat pro se petitioners fairly and

furthers the principles of comity and federalism.

The Superintendent asks this Court to use the unre-

ported order of the Second Circuit in this case to overturn

a well-established — and almost entirely uniform — body of

case law applying this Court’s holding in Houston to other

circumstances in which pro se prisoners have no control

over the time of filing of their court papers. See Pet. at 20.

But a summary order is the wrong vehicle with which to

reexamine Houston and its progeny. Moreover, this case

also presents no compelling legal or policy justification to

circumscribe application of the prison mailbox rule.

To begin with, the same fairness considerations that led

this Court to announce the rule in Houston also apply in this

case. Most fundamentally, because he was “unskilled in law,

procedure for responding to certified questions, certified to the Okla-

homa Court of Criminal Appeals the question of whether the prison

mailbox rule applied in Oklahoma postconviction proceedings. See

Moore, 250 F.3d at 1296, 1298.

25

unaided by counsel and unable to leave the prison,”

Houston, 487 U.S. at 271, Cain had no way to monitor the

filing of his coram nobis application or to know when the

Second Department considered it to have been filed. See

id. (noting how pro se petitioners are unable to “personally

travel to the courthouse to see that the notice is stamped

‘filed’ or to establish the date on which the court received

the notice”). As a result, contrary to the Superintendent’s

suggestion that routine delays in the filing of state post-

conviction applications “can easily be anticipated,” Pet. at

21, petitioners like Cain cannot anticipate with any

certainty when their one-year filing deadline will have

passed. Moreover, like the pro se prisoner in Houston, Cain

faced a tight filing deadline — and the consequences of the

mailbox rule not being applied were potentially devastat-

ing.“ Had the Second Circuit not reversed the district court’s

refusal to apply to mailbox rule, Cain’s constitutional claims

would have never been heard, regardless of their potential

merits. See Lonchar v. Thomas, 517 U.S. 314, 324 (1996)

(noting that a procedural dismissal “of a first federal habeas

petition is a particularly serious matter, for that dismissal

denies the petitioner the protections of the Great Writ

entirely, risking injury to an important interest in human

liberty”).

Second, application of the mailbox rule to calculations

of time tolled under AEDPA brings uniformity, clarity, and

“ The Superintendent’s argument that the lack of a state filing

deadline means that Houston’s fairness concerns do not apply, see Pet.

at 25, conflates the state filing process with the dictates of the federal

AEDPA deadline. Because AEDPA requires petitioners to first seek

relief in state courts, AEDPA’s one-year statute of limitations necessar-

ily incorporates all of the state filings that toll the statute, making the

timing of state filings, regardless of whether they have deadlines of

their own, critical to the federal AEDPA deadline.

26

efficiency to the procedures by which state inmates assert

their federal rights and by which federal courts enforce

those rights. A uniform policy under which federal courts

apply the mailbox rule to all properly filed postconviction

motions when calculating AEDPA tolling time “standard-

ize[s) the procedures that govern how inmates assert their

federal rights, regardless of whether they are in federal or

state prison, and regardless of their state of incarceration.”

Fernandez v. Artuz, 175 F. Supp. 2d 682, 686 (S.D.N-Y.

2001). Such a policy is the only way prisoners can monitor

the timing of their filings with a degree of predictability,

allowing them to know exactly how much time remains

under AEDPA’s statute of limitations as they attempt to

exhaust their state remedies.

In addition, federal courts, which already uniformly

apply the mailbox rule to the time of filing of federal

habeas petitions, see, e.g., Nichols v. Bowersox, 172 F.3d

1068, 1077 (8th Cir. 1999); In re Sims, 111 F.3d 45, 47 (6th

Cir. 1997), also benefit from application of the rule to state

filings under AEDPA. Without the mailbox rule, enforce-

ment of AEDPA’s filing deadline can require, as the Tenth

Circuit learned in LeMaster, divining the intentions of

state courts which may never be faced with the question of

whether the mailbox rule should apply. Applying the

mailbox rule, on the other hand, requires only an inquiry

into the date on which the prisoner handed his pleadings

to prison officials for mailing.

Moreover, this task is not as “factually complex” or

susceptible to misrepresentation as the Superintendent

asserts. Cf. Pet. at 21. As the cases cited by the Superin-

tendent demonstrate, courts generally require substantive

evidence of the date of mailing before giving prisoners the

benefit of the mailbox rule. See id. at 21-22, citing Edgar

27

Velez v. Walker, No. 02-CV-1732 (E.D.N.Y. Feb. 5, 2003),

adopted (E.D.N.Y. Mar. 27, 2003) (finding that record of

prisoner’s legal mail allotments showed correct date

petitioner mailed his habeas petition despite his claim of

earlier date); Darryl Gadson v. M. McGinnis, No. 99-CV-

3624 (E.D.N.Y. Apr. 22, 2002) (declining to accept peti-

tioner’s representation that he had filed habeas petition

earlier but it had been returned).

In fact, the Superintendent’s entire discussion of the

“considerable costs” of the prison mailbox rule, see Pet. at

21-24, is belied by the fact that federal courts have been

applying the rule to nearly all filings of pro se prisoners,

both state and federal, for years without any apparent

difficulty. Federal courts today apply the rule to the filing

of Section 1983 complaints, see, e.g., Cooper v. Brookshire,

70 F.3d 377, 381 (5th Cir. 1995); FTCA claims, see, e.g.,

Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993);

administrative complaints, see, e.g., Longenette v. Krusing,

322 F.3d 758, 765 (3d Cir. 2003); service of discovery

responses, see, e.g., Faile v. Upjohn Co., 988 F.2d 985, 988-

89 (9th Cir. 1993); Rule 59(e) motions to amend judgment,

see, e.g., Edwards v. United States, 266 F.3d 756, 758 (7th

Cir. 2001) (per curiam); and federal habeas petitions, see,

e.g., Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir.

2000). See generally, Sulik v. Taney County, Mo., 316 F.3d

813, 815 (8th Cir. 2003) (noting that all federal circuits to

consider the issue have extended the prison mailbox rule

to civil complaints). If applying the mailbox rule were as

difficult as the Superintendent suggests, one would imag-

ine scores of instances of prisoner misrepresentations

deceiving courts into allowing filings or granting forms of

relief they should not have. But the Superintendent does

not cite a single such example.

28

Third, application of the mailbox rule for the purpose

of calculating AEDPA tolling time furthers the interests of

comity and federalism by allowing state proceedings to

take their course without interference by federal courts.

See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“in a

federal system, the States should have the first opportu-

nity to address and correct alleged violations of [a] state

prisoner’s federal rights”); Duncan v. Walker, 533 U.S. 167,

179 (2001) (“The tolling provision of § 2244(d)(2) balances

the interests served by the exhaustion requirement and

the limitation period”). Applying the mailbox rule ensures

that prisoners are not penalized for attempting to exhaust

their claims in state court before filing in federal court. If

the mailbox rule were not applied, pro se prisoners would

be forced to file their federal habeas petitions while their

state applications are still pending because although the

mailbox rule gives prisoners control over the filing dates of

their federal petitions, prisoners would lack such control

over when state courts choose to consider their state

applications as having been filed.

The Superintendent’s claim that applying the mailbox

rule is unfair to the state, see Pet. at 26 (“[w]hen a federal

court undoes an otherwise final state conviction, respect

for state processes is necessarily undermined”), is essen-

tially an argument against federal habeas itself, regard-

less of whether or not the mailbox rule is applied. The

truth is that because the mailbox rule “already applies to a

broad variety of state prisoner filings in federal actions,” it

cannot “implicate new burdens on the state prison sys-

tem.” Fernandez, 402 F.3d at 115 n.3. In New York, for

example, state prisons have had several years of experience

dealing with the application of the mailbox rule to the filing

of federal habeas petitions, see Noble, 246 F.3d at 97-98;

29

Section 1983 complaints, see Dory v. Ryan, 999 F.2d 679,

682 (2d Cir. 1993), modified on reh’g, 25 F.3d 81 (2d Cir.

1994); and administrative claims, see Tapia-Ortiz v. Doe,

171 F.3d 150, 152 (2d Cir. 1999).

The Superintendent’s final substantive argument is

that Congress could not have intended “for the same word,

‘filing,’ to have two such different meanings simultane-

ously: a federal one in the first context and a state one in

the second.” Pet. at 26. But it is not unusual for a federal

court to apply state law when determining whether an

application has been properly filed, while using federal

law to calculate the length of the pendency of the applica-

tion. For example, in Section 1983 cases filed by pro se

prisoners, federal courts regularly look to state law to

determine the length of the applicable statute of limita-

tions, but then use the federal prison mailbox rule to

determine the actual date of filing. See, e.g., Casanova v.

Dubois, 304 F.3d 75, 78 n.4, 79 (ist Cir. 2002) (borrowing

Massachusetts’ three-year statute of limitations for per-

sonal injury actions in determining length of limitations

period for prisoners’ Section 1983 claims, but applying

federal prison mailbox rule to determine date of filing);

Lewis v. Richmond City Police Dept., 947 F.2d 733, 736

(4th Cir. 1991) (borrowing Virginia’s two-year statute of

limitations for personal injury actions, but applying

federal prison mailbox rule to determine date of filing); see

also Richard v. Ray, 290 F.3d 810, 813 (6th Cir. 2002)

(applying, in a diversity case, Kentucky's one-year statute

of limitations for medical malpractice claims but applying

the federal prison mailbox rule to determine date of filing).

This Court’s decision in Houston also demonstrated

that the meaning of the term “filed” depends upon context.

The Houston Court was careful to note that the mailbox

30

rule can only be applied in cases in which the prisoner’s

filings actually reach the court, no matter when they were

given to prison officials. See Houston, 487 U.S. at 273

(distinguishing between “timing” and “destination”). Thus,

in order to apply the mailbox rule, courts must always

make a two-step inquiry: first, into whether the papers

were ever properly filed; and second, into when the papers

should be considered as having been filed. In Cain’s case,

following this Court’s jurisprudence, the first question —

proper filing — is determined by reference to New York

state law, while the second question requires application of

Houston’s federal mailbox rule.

Therefore, the Second Circuit’s application of the

federal prison mailbox rule to Respondent Cain’s case

solely to calculate time tolled under the federal AEDPA

furthers the principles of comity, federalism, and fairness

and thus provides no justification for Supreme Court

review.

>

CONCLUSION

For the reasons given above, this Court should deny

the Petition for a Writ of Certiorari.

Respectfully submitted,

J.L. POTTENGER, JR.

Counsel of Record

BRETT DIGNAM

THE JEROME N. FRANK LEGAL

SERVICES ORGANIZATION

P.O. Box 209090

New Haven, CT 06520-9090

(203) 432-4800

' Suprenic Court, U.S.

penn ei FILED

a}

; SEP 13 2005

OFFICE OF THE CLERK

No. 04-1726

IN THE

Supreme Court of tye United States

em <> quran =

VINCENT T. HERBERT,

Petitioner,

v.

ALMEIN CAIN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

-UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

REPLY TO OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

RICHARD A. BROWN

District Attorney

Queens County

JouN M. CASTELLANO*

Gary S. FIDEL

Assistant District Attorneys

125-01 Queens Boulevard

Kew Gardens, NY 11415

(718) 286-5801

* Counsel of Record Attorneys for Petitioner

TABLE OF CONTENTS

WADARS IE BUSIROREE SD Po ee ha A i seco e eres

REPLY TO OPPOSITION TO WRIT OF CERTIORARI .

I. Respondent Has Failed to Demonstrate that

the Second Circuit Satisfied the Prerequisite to

Its Exercise of Jurisdiction in this Case, and His

Attempis to Deny the Conflict Among the

Lower Courts on This Issue Are Unpersuasive . .

Il. Despite Respondent’s Characterization of

the Law, the Circuit Courts are Divided Over

the Application of the Federal Mailbox Rule of

Houston v. Lack, 487 U.S. 266 (1988) to State

Court Filings, and this Conflict Merits the

PAIN OT ONG GOON 8 oo 5 a 5 0 RRR i Sues

]

TABLE OF AUTHORITI

Cases >

Bond v. Walsh, 2002 U.S. Dist. Lexis 4826 (E.D.N.Y.

February 12, 2002) ....... sce raya Py Ore 6n.5

Brigian v. Artuz, 37 Fed. Appx. 559 (2002) ......... 6n.5

Cardenas-v. Dretke, 405 F.3d 244 (5" Cir. 2005) ..... 4n.2

Catlett v. Greiner, 76 Fed. Appx. 345 (2d Cir. 2003) 6n.5, 7

Centobie V. Campbell, 407 F.2d 1149 (11" Cir. 2005) . 4n.2

Cyars v. Hoffbauer, 383 F.3d 485 (6" Cir. 2004) ..... 4n.2

Day v. Crosby, 391 F.3d 1192 (11" Cir. 2004) ....... 5n.4

Eltayib v. United States, 294 F.3d 397 (2d Cir. 2002) .. 4n.3

Franklin v. Dretke, 106 Fed. Appx. 926 (5" Cir. 2004) ... 5

Franklin v. Hightower, 215 F.3d 1196 (11 Cir. 2000). 4n.3

Harrison v. Artuz, 105 F.Supp.2d 101 (E.D.N.Y. 2000)

aff'd sub nom. Clark v. Barkley, 51 Fed. Appx. 332

ORG UME, Tee) ooo 6 eh ne a ee 5n.4, 6n.5

Houser v. Dretke, 395 F.3d 560 (5™ Cir. 2004) ....... 4n.3

_ Houston v. Lack, 487 U.S. 266 (1988) ................. 7

Hughes v. Dretke, 405 F.3d 244 (5" Cir. 2005) ....... 4n.2

Jones v. Keane, 329 F.3d 290 (2d Cir. 2003)......... 4n.3

Morales v. Greiner, 381 F.3d 47 (2d Cir. 2004) ...... 4n.2

Pace v. Diguglielmo, 125 S.Ct. 1807 (2005) ............ 9

Slack v. McDaniel, $29: US. 473: GOO) soe. ‘3

United States v. Outen, 286 F.3d 622 (2d Cir. 2002)... 4n.2

Walker v. Crosby, 341 F.3d 1240 (11" Cir. 2003) ..... 5n.4

Statutes and Rules

Pe Bee ee eee ee ee Se 3

Other Authorities

Moore’s Federal Practice, Criminal Procedure §671.02 ... 8

_ REPLY TO OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

I. Respondent Has Failed to Demonstrate that the Second

Circuit Satisfied the Prerequisite to Its Exercise of

Jurisdiction in this Case, and His Attempts to Deny the

Conflict Among the Lower Courts on This Issue Are

Unpersuasive.

In his Brief in Opposition to the Petition for Certiorari,

respondent Cain does not dispute that he was required, under

this Court’s decision in Slack v. McDaniel, 529 U.S. 473

(2000), to make a substantial showing of the denial of a

constitutional right in order for the Second Circuit to exercise

jurisdiction over the appeal. Similarly, respondent does not

dispute that neither the district court nor the Second Circuit ever

made such a finding in any of its orders or opinions, and indeed

never addressed the issue in any manner whatsoever.

Nevertheless, respondent asserts that the Second Circuit

lawfully exercised jurisdiction, arguing that because such a

requirement exists, the Second Circuit must have found that'a

substantial showing had been made. Respondent aiso attempts

to establish, in his Brief in Opposition, the existence of

constitutional issues satisfying the substantial showing

requirement. Finally, respondent flatly asserts that no conflict

exists among the lower courts on this issue. None of these

arguments are persuasive.

Respondent’s first contention fails because it simply

assumes that the Second Circuit must have exercised

jurisdiction properly. Under respondent’s argument, the mere

existence of the requirement establishes that it must have been

found to have been satisfied. But, in the absence of any

suggestion in the record of this case that the issue was ever

addressed or the requirement cownsidered below, the

2

assumption is based on nothing more than conjecture.

Moreover, respondent's assumption cannot be justified

by looking at this matter as an aberrational case — one in which

the court merely forgot to mention its conclusion on this issue

— as respondent suggests. The failure to require or address the

necessary showing is common both inside and outside the

Second Circuit. Notwithstanding respondent’s preference for

published decisions, numerous opinions establish that it is

routine to grant certificates of appealability without considering

whether the requisite showing has been made. Cert. Pet. at 13-

14. Because the issue is both jurisdictional and affects many

cases, it deserves this Court's attention.

Nor is respondent’s attempt to make the requisite

showing at this juncture appropriate. The fact that the lower

courts in this case failed to consider the issue is sufficient to

establish the wrongfulness of the Second Circuit's assumption

of jurisdiction. At the very least, this unlawful exercise of

jurisdiction justifies a directive from this Court, even if only in

a summary order, to consider the necessary prerequisite.

Moreover, the purported “substantial showing”

respondent now offers is anything but that. Respondent

maintains that he has an obviously-worthy constitutional claim

in that his arrest was the product of the allegedly coerced

confession of his co-defendant. Bf. Opp. at 8-9. But the state

court, after hearing evidence from six police witnesses, an

assistant district attorney, and the co-defendant, specifically

rejected the factual contentions that the co-defendant had beer

beaten by the police and that his confession had been coerced.

See People v. Amaury Rosario, Sean Estrella, and Almein Cain,

Ind. No. 5644/95, at 2-7 (Sup.Ct. Queens Co. March 31, 1997)

3

(RA 2-7).' This factual finding is presumed correct on federal

habeas review, 28 U.S.C. § 2254(e)({1), and respondent has

offered nothing to undermine this conclusion since the time of

the state court hearing. Because this factual finding easily

disposes of this claim, respondent’s contention does not satisfy

the statutory standard, much less establish that the Second

Circuit “must have” adopted it.

In addition, respondent now claims to have made a

substantial showing of the denial of a constitutional right based

on a purportedly suggestive lineup. Bf. Opp. at 9. But he made

no such claim in his application for a certificate of

appealability, and there is no reason to believe that the panel

considered the claim sua sponte. Moreover, respondent did not

raise the issue in his brief on appeal in response to the

“jurisdictional objection by the state,-even though respondent

was then represented by the same firm that represents him now.

Thus, this claim cannot justify the conclusion that the Second

Circuit “must have” adopted it, without it being raised or

mentioned, and “must have” based its exercise of jurisdiction

upon it.

Respondent also appears to complain that the state is

demanding a finding on the “merits,” not authorized or

appropriate because “a COA determination is not a ‘merits

determination.” Br. Opp. at 10 (emphasis in original). But the

State has never maintained that the Second Circuit should have

made an ultimate merits determination on any of Cain’s issues,

only that some preliminary showing — the denial of a

constitutional right was required under Slack before jurisdiction

could be exercised. Respondent’s objection then is entirely

‘Numbers in parentheses preceded by RA refer to the

Respondent’s Appendix in the Second Circuit.

inapposite.

Respondent also attempts to deny that any conflict exists

among the circuits on this issue, pointing to many cases in

which courts have required a showing of a denial of a

constitutional right. Br. Opp. at 10-11, 15-16. But most of the

cited cases do not implicate any procedural issue whatsoever or

discuss Slack’s two-pronged test.2 They shed no light,

therefore, on the current question. The remainder of the cases _

establish no more than that courts apply the Slack rule where

the district court has held, as in Slack itself, that particular

claims were barred based on an independent and adequate state

ground or a lack of exhaustion.’ These cases are also of limited

relevance. There is no doubt that the lower courts follow Slack

in the precise context of that case, as indeed they must. The

issue that has engendered such confusion is the application of

Slack to statute of limitations dismissals. Indeed, many lower

courts have failed to observe the Slack requirement in these

circumstances, as explained at length in the Petition for

Certiorari. Cert. Pet. at 13-14. Thus, citations to the distinct,

and non-controversial, issues identified by respondent do not

address, and cannot eliminate, the conflict over the separate

question of Slack’s application to timeliness dismissals.

Moreover, it is precisely because the cases cited by petitioner do

*These cases include Centobie v. Campbell, 407 F.3d 1149 (11"

Cir. 2005); Hughes v. Dretke, 405 F.3d 582 (5" Cir. 2005); Cardenas

v. Dretke, 405 F.3d 244 (5" Cir. 2005); Morales v. Greiner, 381 F.3d

47 (2d Cir. 2004); United States v. Outen, 286 F.3d 622 (2d Cir.

2002); Cyars v. Hoffbauer, 383 F.3d 485 (6" Cir. 2004).

These cases include Houser v. Dretke, 395 F.3d 560 (5" Cir. ~

2004); Jones v. Keane, 329 F.3d 290 (2dCir. 2003), cert. denied, 540

U.S. 1046 (2003); Eltayib v. United States, 294 F.3d 397 (2d Cir.

2002); and Franklin v. Hightower, 215 F.3d 1196 (11" Cir. 2000).

5

not treat the disputed issue here that they were “conveniently

left out” of the petition for certiorari. Br. Opp. at 15.

Nor are respondent's attacks on the state’s citation of

relevant caselaw — treating the application of S!ack to statute of

limitations dismissals — adequate to dispel the conflict. For

example, as to Franklin v. Dretke, 106 Fed. Appx. 926 (S" Cir.

2004), respondent concedes that the circuit court granted a

COA on the timeliness issue without ever addressing whether

the petitioner had made a substantial showing of the denial of

a constitutional right, and that the court reversed the lower

court’s ruling, thus clearly exercising jurisdiction over the

matter. He points out, however, that the circuit court remanded

the case for consideration of the constitutional claims set forth

in the petition. But this hardly establishes that the circuit court

considered the necessary substantial) showing requirement

before it granted a certificate of appealability and reversed;

indeed, the circuit court does nothing more than direct the lower

court to consider the merits once the court overturned the

statute of limitations dismissal.

As to several other cases,‘ respondent asserts that the

state did not object to jurisdiction in their briefs on appeal. Br.

Opp. at 13-14. But the state’s failure to object did not obviate

the statutory jurisdictional requirement, which those courts

were bound to address in any event. And the state’s failure to

object in those cases certainly did not bind the state here, which

did assert the jurisdictional defect, and, as a result, the Second

Circuit could not properly ignore the issue, as it in fact did.

*Day v. Crosby, 391 F.3d 1192 (11" Cir. 2004); Walker v. Crosby,

341 F.3d 1240 (11" Cir. 2003); and Harrison v. Artuz, 105 F.Supp.

2d 101 (E.D.N.Y. 2000), aff'd sub nom. Clark v. Barkley, 51 Fed.

Appx. 332 (2d Cir. 2002).

6

And as to still other cases,> respondent offers little

argument, other than to say that these are unpublished

decisions. But, whether published or unpublished, these

decisions attest to the fact that it is common within the Second

Circuit, and some other circuits, to grant COAs with regard to

timeliness dismissals without consideration of the statutory

prerequisite. Whether formally adopted or not, the practice

exists and is widespread, and for this reason, and because it is

the basis for jurisdiction on appeal, should be addressed by this

Court.

Finally, respondent’s citation to Catlett v. Greiner, 76

Fed. Appx. 345 (2d Cir. 2003), is inapposite. In that case, the

Second Circuit held that it would not review the denial of the

State’s motion to dismiss in the distnict court upon an appeal by

the habeas petitioner, and held that, in any event, the petition

was properly denied by the distnct court on the merits. In

arriving at this result, the Second Circuit did not, in fact, even

cite Slack, but clearly disposes of the timeliness in this manner

because, in this posture, “the [timeliness] issue presents us with

no case or controversy on which petitioner could be granted

habeas relief.” Jd. at 347. The case does not therefore establish

that the Second Circuit adheres to Slack in this context.

In sum, because respondent is unable to erase the

conflicting practices of different courts or to resolve what must

at the very least be considered immense confusion over the

requirements for exercising jurisdiction on appeals from

timeliness dismissals, this Court should grant the certioran.

*Bond v. Walsh, 2002 U.S. Dist. Lexis 4826 (E.D.N.Y. February

12, 2002), dismissal vacated, 53 Fed. Appx. 162 (2d Cir. 2002);

Harrison v. Artuz, 105 F.Supp. 2d 101 (EDNY 2000), aff'd sub nom.

Clark v. Barkley , 51 Fed. App. 332 (2d Cir. 2002); Brigian v. Artuz,

37 Fed. Appx. 559 (2002).

7

II. Despite Respondent’s Characterization of the Law, the

Circuit Courts are Divided Over the Application of the

Federal Mailbox Rule of Houston v. Lack, 487 U.S. 266

(1988) to State Court Filings, and this Conflict Merits the

Attention of this Court.

- In his Brief in Opposition, respondent attempts to deny

the existence of any conflict between the circuits on the

application of Houston v. Lack , 487 U.S. 266 (1988), to state

post-conviction petitions under the tolling provision of the

habeas corpus statute of limitations. He also argues that this

extension of Houston would pose little or no problem to the

states, which must deai with the rule as applied in federal court

in any event. Finally, he points out that New York does not

impose a deadline on coram nobis petitions, such as the one he

filed in state court in this case, concluding from this both that

his petition was “properly filed” and that the state has no

interest contrary to the application of the mailbox rule here.

These arguments are unavailing.

First, respondent’s attempts to deny the conflict are

belied by the decisions of the Second Circuit itself, which has

expressly acknowledged it. For example, in Catlett v. Greiner,

76 Fed. Appx. 345 (2d Cir. 2003), cited by respondent, the

Second Circuit recognized that “(t]he applicability of the prison

mailbox rule to state filings that toll a federal statute of

limitations is an issue that has divided federal circuit courts.”

Id. at 346. The court noted, as did the state here in the Petition

for Certiorari, that “[t}he Fifth, Tenth, and Eleventh Circuits

have declined to apply the rule to state court filings,” and that

the Ninth Circuit had ostensibly come to a different conclusion,

Id. at 346-47. Similarly, in Fernandez, the Second Circuit

acknowledged that while the Ninth Circuit appeared to apply

the mailbox rule, “[o]ther circuits . . . defer to the state court's

application of state filing laws.” See also 28-671 Moore’s

8

Federal Practice, Criminal Procedure §671.02 (‘the courts are

split as to whether the tolling period begins on the date that a

pro se petitioner mailed a state post-conviction petition to the

state court or on the date when it was received and filed”).

Thus, there can be no question that the conflict is real and not

“manufactured,” as respondent suggests.

Second, respondent’s contention that the rule imposes

no burdens on the state, as the state must deal with the rule as

applied to federal court filings in any event, is simply wrong.

To the contrary, the state must shoulder a vastly increased

burden of the costs associated with the mailbox rule if it is used

to toll for every state post-conviction application. Cert. Pet. at

21-23. The difficulties in discovering and litigating the actual

date on which the relevant papers are handed to prison

authonties, a process which has engendered substantial

litigation-in the habeas context, are dramatically increased when

they are multiplied by the number of state court petitions in a

given case, which often rises into the dozens. Records dating

back years must be unearthed, and in a prison system the size of

New York’s, the task is monumental, resulting in the inability

to dispute these old claims. That inability, in turn, opens the

door to petitioners who are far too ready to take advantage of

the opening and make baseless assertions about when their

filings have been sent. Indeed, respondent here did precisely

this, claiming that his petition was sent some five months

before it could possibly have been given to prison authorities (a

fact “conveniently left out”of the Brief in Opposition). And

while particularly some petitioners such as respondent Cain

may occasionally be caught, in the vast majority of cases the

district courts are farced to simply take the prisoners’ assertions

at face value. These added periods of delay, routinely brought

about by manipulation, dramatically undermine the habeas

corpus statute of limitations and cripple it as an independent

restraint supporting the finality of convictions.