Opinion · Court of Appeals for the Second Circuit

Anthony Thomas v. Charles Greiner, Superintendent

174 F.3d 260

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1999-04-19
Topic: litigation

How later courts describe this case

stating that other decisions of the circuit had sub silentio adopted a rule of reviewing procedural errors without a showing of a denial of a constitutional right

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Cited by: 7 opinions

THOMAS v. GREINER,174 F.3d 260(2nd Cir. 1999)

ANTHONY THOMAS, PETITIONER-APPELLANT, v. CHARLES

GREINER, SUPERINTENDENT, RESPONDENT-APPELLEE.

No. 98-2624.

United States Court of Appeals, Second Circuit.

Argued and Submitted: March 26, 1999.

Decided: April 19, 1999.

Appeal from the United States District Court for the Southern District of New York (Loretta A. Preska, Judge) entered April 29, 1998, dismissing as time-barred petitioner-appellant's petition for a writ of habeas corpus.Page 261

We reverse and remand.

Solomon Rosengarten, Brooklyn, N Y for Petitioner-Appellant.

(Robert M. Morgenthau, District Attorney, New York County, New York, NY, Marc Frazier Scholl, Assistant District Attorney, New York, NY, of counsel, for Respondent-Appellee.)

Before: FEINBERG, PARKER, and POOLER, Circuit Judges.

PER CURIAM:

[1] Appellant, an inmate in state custody, appeals from a judgment dismissing as time-barred his first petition for a writ of habeas corpus.See28 U.S.C. § 2244(d)(1) (one-year period of limitation applies to application for writ of habeas corpus by state prisoner).

[2] Appellant's petition was filed on April 16, 1997. InRoss v.Artuz,150 F.3d 97, 103 (2d Cir. 1998) — which was decided after Judge Preska dismissed appellant's petition — we held that first petitions brought under28 U.S.C. § 2254will not be dismissed as time-barred if filed on or before April 24, 1997. In light ofRoss, the judgment must be reversed.

[3] Appellee argues that this appeal should be dismissed because Judge Preska erred in granting a certificate of appealability on the statute of limitations issue. Appellee contends that the misapplication of the statute of limitations does not rise to the level of the "denial of a constitutional right" so as to permit an appeal.See28 U.S.C. § 2253(c)(2) ("A certificate of appealabilty may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.") However, appellee concedes that this specific issue has been raised before other panels of this Court, and that those other panels have rejected the argumentsub silentio.

[4] In accord with those prior rulings, we REVERSE the judgment of the district court and REMAND for consideration of the merits of the petition.