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