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SMITH v. MCGINNIS

March 17, 1999

KEVIN SMITH, PETITIONER,
v.
MICHAEL MCGINNIS, SUPERINTENDENT SOUTHPORT CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Dearie, District Judge.

MEMORANDUM & ORDER

Petitioner Kevin Smith seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as untimely under 28 U.S.C. § 2244 (d)(1) and Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Petitioner urges that the petition is timely, arguing that his state post-conviction motions reset the limitations period that had otherwise expired. For the reasons stated below, respondent's motion to dismiss is granted.

Background

On November 9, 1984, petitioner and his cohort Calvin Lee attempted to rob Frederick Shaw on a street corner in Brooklyn. When two friends of Shaw, Trent Richardson and Gary Van Dorn, came to Shaw's aid, petitioner and Lee retreated. Later, petitioner and Lee returned to the scene with a gun. Lee began shooting as he ran across the street after Shaw, Van Dorn, and Richardson. When Van Dorn fell, Lee handed his gun to petitioner, who then shot Van Dorn in the back, killing him.

A jury in New York Supreme Court, Kings County, found petitioner guilty of murder in the second degree, two counts of attempted murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. The court sentenced petitioner to concurrent terms of imprisonment of twenty-five years to life, five to fifteen years, and one and one-third to four years, respectively.

On September 26, 1988, petitioner moved to vacate his judgment of conviction pursuant to N.Y. Criminal Procedure Law § 440.10, claiming juror misconduct and that his conviction was obtained by duress. On November 22, 1988, the trial court denied petitioner's motion.

On December 15, 1989, assigned appellate counsel filed a brief on petitioner's behalf in the Appellate Division, Second Department, in which petitioner raised the following claims: (1) his conviction had been obtained by duress because the main eyewitness had been incarcerated on perjury charges prior to his testimony; (2) several instances of juror misconduct during voir dire warranted reversal;*fn1 and (3) the trial court abused its discretion in discharging two sworn jurors who were considered by the court to be unavailable for continued service.

On December 24, 1990, the Appellate Division unanimously affirmed petitioner's judgment of conviction. People v. Smith, 168 A.D.2d 653, 563 N.Y.S.2d 483 (2d Dep't 1990). On April 3, 1991, the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Smith, 77 N.Y.2d 967, 570 N.Y.S.2d 501, 573 N.E.2d 589 (1991).

Petitioner, proceeding pro se, filed another 440 motion on August 4, 1992, claiming that (1) he had received ineffective assistance of trial counsel; (2) that he had newly discovered evidence in the form of an exculpatory witness; and (3) that the judgment was obtained in violation of his right to be present at a material stage of trial. On February 17, 1993, the Supreme Court denied his motion, and on May 19, 1993, the Appellate Division denied petitioner's application for leave to appeal.

On April 23, 1997, petitioner's newly retained counsel served respondent with a motion for a writ of error coram nobis, and on May 1, 1997, the motion was filed at the Appellate Division. In the motion, petitioner claimed that appellate counsel was ineffective for failing to raise on appeal that his right to be present at material proceedings was violated by his absence from two proceedings pertaining to the material witness order for Trent Richardson. On November 17, 1997, the Appellate Division unanimously denied defendant's application. People v. Smith, 244 A.D.2d 515, 665 N.Y.S.2d 919 (2d Dep't 1997).

On February 12, 1998, petitioner filed this petition for a writ of habeas corpus, raising only the ineffective assistance of appellate counsel claim that he raised in the coram nobis petition.

Discussion

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA, among other things, amended 28 U.S.C. § 2244 to provide a one-year limitations period for the filing of habeas corpus petitions. The one-year period runs from the latest to occur of certain events, only one of which is relevant in this case: 1) 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). The AEDPA further provides that the pendency of a properly filed application for State post-conviction or other collateral review will toll "any period of limitation under this subsection." 28 U.S.C. § 2244 (d)(2).

On June 24, 1998, the Second Circuit held in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998) that a state prisoner whose judgment of conviction became final before the enactment of the AEDPA is allowed a "grace period" of one year after ...


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