Opinion
No. 00-CV-2059 (RR)
May 8, 2002
IRVING ANOLIK, ESQ., New York, NY, Counsel for Petitioner
HONORABLE CHARLES HYNES, KINGS COUNTY DISTRICT ATTORNEY, Brooklyn, New York, By: Linda Breen, Assistant District Attorney, Attorney for Respondent
MEMORANDUM AND ORDER
Tony Rosa, initially proceeding pro se but now represented by counsel, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 Rosa was convicted in 1995 after a jury trial in New York Supreme Court, Kings County, of two counts each of Robbery in the First Degree, see N.Y. Penal Law § 160.15 (McKinney 1999), six counts of Robbery in the Second Degree, see N.Y. Penal Law § 160.10 (McKinney 1999), one count of Assault in the Second Degree, N.Y. Penal Law § 120.05 (McKinney 1998), three counts of Criminal Possession of a Weapon in the Fourth Degree, see N.Y. Penal Law § 265.01 (McKinney 2000), and one count of Criminal Possession of Stolen Property in the Fifth Degree, see N.Y. Penal Law § 165.40 (McKinney 1999). He is presently incarcerated serving a cumulative indeterminate sentence of 26 and 2/3 to 80 years.
Court records indicate that counsel has filed papers with the court on behalf of Mr. Rosa without filing a notice of appearance. He is to rectify this omission by filing his appearance on or before May 15, 2002.
Rosa challenges his conviction on the grounds that: (1) he was denied a fair trial as a result of (a) judicial bias, (b) erroneous jury instructions, and (c) a tainted in-court identification; (2) his trial and appellate counsel were constitutionally ineffective; and (3) the imposition of consecutive sentences was unlawful. Respondent moves this court to dismiss the petition as untimely under 28 U.S.C. § 2244. Having carefully reviewed the submissions of the parties, this court finds the motion to be without merit.
Procedural Background
To evaluate respondent's motion, it is necessary to detail the procedural history of Rosa's case in the state courts.
After his conviction, Rosa appealed directly to the Appellate Division, Second Department. That court unanimously affirmed his conviction on April 6, 1998. See People v. Rosa, 249 A.D.2d 334, 670 N.Y.S.2d 348 (2d Dep't 1998). The New York Court of Appeals subsequently denied Rosa's application for leave to appeal on June 11, 1998, see People v. Rosa, 92 N.Y.2d 860, 677 N.Y.S.2d 90 (1998) (Levine, J.), and his motion for reargument on October 30 1998 see People v. Rosa, 92 N.Y.2d 951, 681 N.Y.S.2d 482 (1998) (Levine, J.).
On August 24, 1999, Rosa moved to vacate his conviction pursuant to N.Y. Crim. Proc. L. § 440.10, which motion the Supreme Court denied on November 29, 1999. See Resp't Aff. in Opp'n, Exs. The Second Department denied leave to appeal from the adverse ruling on March 8, 2000.
On September 1, 1999, while his § 440.10 motion was pending, petitioner moved in the Second Department for a writ of error coram nobis on the ground that his appellate counsel had been ineffective. The Appellate Division denied this motion on December 13, 1999 see People v. Rosa, 267 A.D.2d 337, 699 N.Y.S.2d 875 (2d Dep't 1999), as well as a motion for reargument on March 6, 2000. Meanwhile, on February 6, 2000, Rosa had filed a motion for reargument of the Appellate Division's April 6, 1998 affirmance of his conviction. By order dated March 23, 2000, the Appellate Division denied that motion.
A few days later, on March 27, 2000, Rosa filed his pending motion for federal relief.
Because a habeas corpus petition is deemed to have been filed on or about the date an inmate delivers it to prison officials for transmittal to the court, see Houston v. Lack, 487 U.S. 266 (1988). this court assumes that Rosa delivered his petition on March 27, 2000, the day it is dated.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, requires state prisoners seeking relief pursuant to 28 U.S.C. § 2254 to file their petitions within one year of whichever of the following events occurs last:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). Excluded from this one-year limitations period is "[t]he 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. . . ." 28 U.S.C. § 2244(d)(2); see Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999).
Since § 2244(d)(1)(A) appears to be the only subsection applicable in this case, Rosa was required to file his federal habeas corpus application within one year from the date on which his judgment became final. Rosa's judgment became final on January 28. 1999, 90 days after the October 30, 1998 denial of his motion for reargument by the Court of Appeals. See Hizbullahankhamon v. Walker, 255 F.3d 65, 68 (2d Cir. 2001) (calculating 90-day period to seek certiorari review from date motion for reconsideration denied).
From January 28, 1999, until August 24, 1999, when Rosa filed his § 440.10 motion. 206 days ran on his one-year limitations period. The period was then tolled until March 8, 2000, when the Appellate Division denied Rosa's motion for leave to appeal the 440.10 denial. Nineteen days later, on March 27, 2000, Rosa filed his federal petition with this court. Since at that time, a total of only 225 days had run on the one-year limitations period. Rosa's petition was plainly timely.
Rosa's motion for a writ of error coram nobis would also toll the statute of limitations, but since it was filed and a final determination rendered while proceedings relating to the § 440.10 motion were pending, it has no practical effect on the limitations calculation.
Conclusion
For the reasons stated, the court finds that Rosa did file his federal petition within the limitations established in 28 U.S.C. § 2244. Accordingly. respondent's motion to dismiss the petition as untimely is denied. Respondent shall file its opposition to the petition on or before June 15, 2002. Petitioner shall file his reply, if any, on or before August 1, 2002.