Opinion
00 Civ. 0806 (RMB)(AJP)
May 18, 2000
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District Judge:
Petitioner John Stokes seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, from his conviction in Supreme Court, Bronx County, of second degree felony murder (and related lesser charges) and sentence of twenty-five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Stokes' present federal habeas petition is dated August 17, 1999, was mailed in an envelope postmarked September 7, 1999, and was received by the Court's Pro Se office on September 9, 1999. (Pet. at 2, 7 envelope.)
For the reasons set forth below, Stokes' petition should be dismissed as barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA").
PROCEDURAL BACKGROUND
State Proceedings
Stokes was convicted in Supreme Court, Bronx County, of second degree felony murder (and related lesser charges) and on January 24, 1992, sentenced to concurrent prison terms, the longest of which was twenty-five years to life imprisonment. (Pet. ¶¶ 1-4.) See also People v. Stokes, 215 A.D.2d 225, 626 N.Y.S.2d 161 (1st Dep't 1995), aff'd, 88 N.Y.2d 618, 648 N.Y.S.2d 863 (1996).
The First Department affirmed Stokes' conviction on May 11, 1995. People v. Stokes, 215 A.D.2d 225, 626 N.Y.S.2d 161 (1st Dep't 1995). (See also Pet. ¶ 9.) Stokes sought leave to appeal, and on October 10, 1996, the New York Court of Appeals affirmed Stokes' conviction and that of his accomplice, Orlando Nieves. People v. Stokes, 88 N.Y.2d 618, 648 N.Y.S.2d 863 (1996). The New York Court of Appeals held that although the underlying robbery felony occurred in Connecticut, since the resulting death (of a pedestrian hit by defendants' car during their attempt to escape) occurred in New York, Stokes and Nieves could be prosecuted in New York for felony murder. Id.
On August 25, 1997, Stokes filed a motion in the trial court to vacate his conviction pursuant to CPL § 440.10. (Pet. ¶ 11(a); see also Stokes 2/17/00 Aff. at 1.) According to Stokes, the motion was denied on May 8, 1998, and the First Department denied leave to appeal on February 10, 1999. (Pet. ¶ 11(a)-(b).)
Stokes' Present Federal Habeas Petition
Stokes' present federal habeas petition is dated August 17, 1999, was mailed in an envelope postmarked September 7, 1999, and was received by the Court's Pro Se Office on September 9, 1999. (Pet. at 2, 7 envelope.) Stokes' habeas petition asserts four claims: (1) that he cannot be convicted of felony murder in New York since no element of the underlying robbery felony took place in New York (Pet. ¶ 12(A)); (2) the unauthorized use of a vehicle charge fails for the same reason (Pet. ¶ 12(B)); (3) he was deprived of a fair trial by the exclusion of exculpatory evidence (Pet. ¶ 12(C)); and (4) the indictment was defective because it alleged that the robbery took place in the Bronx (Pet. ¶ 12(D)).
ANALYSIS
STOKES' PETITION IS BARRED BY THE AEDPA'S STATUTE OF LIMITATIONS
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
. . . .
(2) 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 toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Here, Stokes' conviction became final on January 8, 1997, ninety days after the New York Court of Appeals' October 10, 1996 decision affirming his conviction, "when his time to seek direct review in the United States Supreme Court by writ of certiorari expired." Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998); see, e.g., Forman v. Artuz, 99 Civ. 9046, 2000 WL 378056 at *3 (S.D.N.Y. April 11, 2000) (Peck, M.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *2 (S.D.N.Y. March 9, 2000) (Sprizzo, D.J. Peck, M.J.).
See also, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d 347, 359 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.) (citing cases); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *2 (S.D.N Y July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. April 29, 1999) (Peck, M.J.), rep. rec. adopted by 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.); Torres v. Irvin, 33 F. Supp.2d 257, 271 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.). Exclusion of the ninety-day certiorari period would not change the analysis or result in this case.
The Second Circuit recently confirmed that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Forman v. Artuz, 2000 WL 378056 at *3; Martinez v. Stinson, 2000 WL 284191 at *3; Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Varsos v. Portuondo, 1999 WL 558147 at *3; DeVeaux v. Schriver, 1999 WL 1216298 at *4. "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases); accord, e.g., Smith v. McGinnis, 208 F.3d at 17; Forman v. Artuz, 2000 WL 378056 at *3.
Stokes brought his CPL § 440.10 application on August 25, 1997. (See page 2 above.) The trial court denied the motion on May 5, 1998 and the First Department denied leave to appeal on February 10, 1999. (See page 2 above.) On the assumption that the CPL § 440.10 motion was pending for that entire period, Stokes is entitled to a toll from August 25, 1997 to February 10, 1999, a toll of 534 days.
Thus, from January 8, 1997 (expiration of the 90-day certiorari period) until the August 25, 1997 filing of Stokes' CPL § 440.10 motion, 229 days of the one-year limitations period had run; Stokes' CPL § 440.10 motion entitled him to a toll from August 25, 1997 until the First Department's denial of leave to appeal on February 10, 1999; from February 10, 1999 until the August 17, 1999 date of Stokes' habeas petition, another 188 days of the one-year period had run. Thus, a total of 417 non-tolled days had passed when Stokes filed his current federal habeas petition. Since that is more than 365 days, Stokes' habeas petition is barred by the one-year AEDPA statute of limitations.
It appears more likely that Stokes' petition was mailed on or about the September 7, 1999 date it is postmarked. Nevertheless, the Court will give Stokes the benefit of the doubt by using the August 17, 1999 date on Stokes' petition.
Another and perhaps simpler calculation is as follows: the period from January 8, 1997 until April 17, 1999 is 951 days, but is reduced by a toll of 534 days from the pendency of Stokes' CPL § 440.10 motion, for a total of 417 untolled days.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).