Opinion
01-CV-1381 (NG)
July 24, 2002
ORDER
Petitioner's habeas corpus petition is denied as untimely. Under Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000), cert. denied, 531 U.S. 840 (2000), petitioner has failed to bring this writ of habeas corpus within the time period enacted by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2244 (d).
On December 17, 1992, petitioner was convicted, pursuant to a guilty plea, of two counts of Murder in the Second Degree and one count of Assault in the Second Degree in full satisfaction of two separate indictments. On April 19, 1993, petitioner filed Notice of Appeal to the Court of Appeals. On November 3, 1994, petitioner's appointed attorney, Philip Weinstein, Esq., moved to discontinue the appeal as abandoned. In support of his motion, petitioner's counsel submitted documentation indicating that he had written to petitioner advising him of the possible claims he could raise on appeal and the risks of raising those claims. In particular, petitioner's counsel indicated that petitioner faced consecutive sentences of more than fifty years to life imprisonment if he were permitted to withdraw his plea. Petitioner's counsel requested that petitioner advise him how petitioner wished to proceed, and indicated that, if he did not hear from petitioner within a month, he would seek dismissal of the appeal as abandoned. Petitioner's counsel also suggested that petitioner could write directly to the court indicating what claims he wished to raise on appeal. When petitioner did not respond to counsel within the month, or communicate with the court, petitioner's counsel moved to dismiss the appeal as abandoned. On January 25, 1995, the Appellate Division granted the unopposed motion and dismissed the appeal with prejudice. Petitioner never appealed the dismissal to the Court of Appeals.
On October 6, 2000, petitioner filed a pro se motion in the Appellate Division seeking reinstatement of his appeal or for a writ of error coram nobis. Petitioner argued that his appeal had been involuntarily discontinued because appellate counsel had given him improper advice and abandoned him, and that he had not contacted the court directly because his attorney gave him bad advice and he lacked the necessary skills. He did not claim he was unaware of the dismissal of his appeal. The Appellate Division, treating petitioner's submission as a motion to vacate its 1995 dismissal order, denied the motion on December 20, 2000. Petitioner then filed the instant petition for a writ of habeas corpus, dated February 20, 2001. On August 2, 2001, respondent moved to dismiss the petition as untimely, or in the alternative as containing unexhausted claims.
AEDPA, among other things, amended 28 U.S.C. § 2244 to provide a one year limitations period for filing state habeas corpus petitions. The one year limitations period runs from the latest to occur of certain events, the only relevant one of which, in this case, appears to be the "date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244 (d)(1)(A). In this case, the conviction became final prior to the enactment of AEDPA on April 24, 1996. Therefore petitioner had a one year grace period until April 24, 1997 to file his petition. See Ross v. Artuz, 150 F.3d 97, 102-02 (2d Cir. 1998).
This court need not decide whether petitioner's conviction became final on February 24, 1995, the deadline for petitioner to appeal the dismissal of his direct appeal to the Court of Appeals, N.Y.C.P.L. § 460.10(5); Padilla v. Mantello, 2000 WL 1471596 (E.D.N.Y. 2000); Raynor v. Dufrain, 28 F. Supp.2d 896 (S.D.N.Y. 1998), or on February 24, 1996, the deadline for petitioner to seek an extension of time from the Court of Appeals to file a Notice of Appeal, N.Y.C.P.L. § 460.30; Jolly v. Stinson, 1998 WL 661472 (1998), because both dates are prior to the enactment of AEDPA.
Petitioner filed the instant petition about three years and ten months after the one year grace period had expired, and his application to vacate the dismissal order, which was filed approximately three and a half years after the one year grace period, could not restore the statute of limitations. even if that application had been properly filed. See Smith, 208 F.3d at 17 (tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the limitations period begins to run); Artuz v. Bennett, 531 U.S. 4 (2000) (holding that, in order to be properly filed, a motion must be timely); People v. Hernandez, 255 A.D.2d 112 (1st Dept. 1998), lv. denied, 93 N.Y.2d 874 (1999) (holding that a motion to reargue is untimely if it is filed after the time to file notice of appeal has expired). Since petitioner has not shown that he is entitled to equitable tolling, see Smith, 208 F.3d at 17; Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001), cert. denied, 122 S.Ct. 2593 (2002), the petition is dismissed as untimely.
SO ORDERED.