Opinion
00 Civ. 5667 (LAK)
November 1, 2000
ORDER
Petitioner was convicted of murder in the second degree and robbery in the first degree in Supreme Court, New York County, and sentenced on September 27, 1995 to concurrent terms of imprisonment of twenty years to life and eight and one-third years to twenty five years, respectively. The conviction was affirmed by the Appellate Division on February 26, 1998. People v. Seals, 247 A.D.2d 349, 669 N.Y.S.2d 293 (1st Dept. 1998). Petitioner's application for leave to appeal to the New York Court of Appeals was denied on June 29, 1998. Id., 92 N.Y.2d 860, 677 N.Y.S.2d 91 (1998). The time within which to seek a writ of certiorari from the United States Supreme Court expired, and the one year statute of limitations for filing a federal habeas petition began to run, no later than September 28, 1998.
Petitioner filed a motion pursuant to N.Y. Crim. Proc. L. § 440.10 no earlier than September 12, 1999. Although the filing of the motion tolled the running of the limitations period pursuant to 28 U.S.C. § 2244 (d)(2), at least 348 days already had elapsed by the time the motion was filed.
The state post-conviction proceeding ended with the denial by the Appellate Division, on June 1, 2000, of leave to appeal from the order denying the Section 440.10 motion, at which point the limitations period again began to run. The fact that petitioner subsequently moved for leave to the Court of Appeals is immaterial because that court has no jurisdiction to entertain such an application, as was reflected in the dismissal of the application by Judge Rosenblatt of that court. See Ramos v. Walker, 88 F. Supp.2d 233, 234, 235-36 nn. 3, 9 (S.D.N.Y. 2000) (§ 440.10 proceeding ends when leave to appeal denied by Appellate Division because New York provides no avenue for further review by the Court of Appeals). In consequence, the statute of limitations on the commencement of a federal habeas petition expired no later than June 19, 2000, the seventeenth day following the date of Appellate Division order denying leave to appeal from the denial of the Section 440.10 motion. As the petition in this case was not filed until July 31, 2000, the petition is untimely.
Accordingly, respondent's motion to dismiss the petition as barred by the statute of limitations is granted and the petition dismissed. As petitioner has advanced no colorable claim, a certificate of appealability is denied, and the Court certifies that any appeal from this order would not be taken in good faith within the meaning of 28 U.S.C. § 1915.
SO ORDERED.