Opinion
99-CV-0335 (JBW), 03-MISC-0066 (JBW)
June 16, 2003
MEMORANDUM, ORDER JUDGMENT
A hearing was held in this matter. Petitioner was present by telephone. The petition for a writ of habeas corpus is dismissed as time barred.
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244 (d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted." 28 U.S.C. § 2244 (d)(2). In addition, the term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd 531 U.S. 4 (2000). The time limitations of the stature may be equitably tolled in appropriate circumstances.
Petitioner's conviction became final on March 30, 1997, which was ninety days after he was denied leave to appeal his conviction to the New York Court of Appeals. His petition was therefore due by March 30, 1998. He initiated no state collateral proceedings, therefore no time was tolled by statute. His petition was filed on January 8, 1999, over nine months late.
The only argument petitioner offers that might support tolling the statute equitably is that he experienced a "delay" in obtaining his trial transcripts from the sentencing court. He appends to his petition a receipt showing that he was delivered "papers" and "guitar strings" at the prison on November 27, 1998. Petitioner does not state when he requested his trial transcript, nor does he aver that the transcript was illicitly withheld, or from him. He does not explain why his lack of access to a trial transcript prevented his filing his habeas petition in a timely manner. He presents no evidence that he diligently sought his trial transcript, or that he was in any way rebuffed by state actors in receiving it. There is no evidence in the record, and he provided none at a hearing before this court, to show the diligence necessary to warrant equitable tolling.
At any rate, lack of access to a trial transcript does not prevent a petitioner from filing a writ of habeas corpus. See Crawford v. Costello, 27 Fed. Appx. 57, 59 (2d Cir. 2001) (unpublished); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) ("Lack of access to a trial transcript does not preclude a petitioner from commencing post-conviction proceedings and therefore does not warrant equitable tolling.").
There is no evidence of innocence. The evidence of a sale of drugs by petitioner was overwhelming. There were eyewitnesses and an audio transcript of the sale of drugs. The sentence was authorized and proper. Any substantive basis for the petition is frivolous.
The petition for a writ of habeas corpus is dismissed. There is no evidence of innocence. The evidence of sale of drugs by petitioner was overwhelming. There were eye witnesses and an audio transcript of the sale of drugs. The sentence was authorized and proper. Any substantive basis for the petition is frivolous.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.