Diaz v. Lee

U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Criminal Practice

New York Law Journal

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Judge Robert Patterson

Diaz's 1990 conviction for murder, attempted murder, first-degree assault and third-degree weapon possession became final in June 1993. Aided by prison legal assistant Albelo, Diaz sought 28 USC §2254 habeas relief five years later. That petition's 1998 denial as time barred was affirmed in March 2000. The court deemed Diaz's inability to read or write English not an "adequate reason for…not pursuing further remedies during the four and one-half year period subsequent to his state court conviction becoming final." District court denied Diaz's Dec. 20, 2012, motion under Federal Rule of Civil Procedure 60 to reconsider the petition's denial. Under Diaz v. Kelly, Diaz's difficulty in speaking English and his use of other prisoners to translate materials and communicate with legal counsel might rise to the level of "extraordinary circumstance" warranting tolling of the Antiterrorism and Effective Death Penalty's limitation period for habeas applications. However, Diaz did not assert facts supporting a finding that he satisfied tolling the due diligence requirement. In the applicable limitation period Diaz sought neither language nor legal help from outside prison. Nor did he attempt to learn the requirements needed to file a habeas petition.

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