United States District Court, Southern District of New York
May 24, 1999
JOSE CARRACEDO, PETITIONER,
CHRISTOPHER ARTUZ, SUPERINTENDENT, RESPONDENT.
The opinion of the court was delivered by: Kaplan, District Judge.
On August 10, 1990, petitioner was convicted, following a jury
trial, of murder in the second degree and sentenced to an
indeterminate term of 25 years to life. His conviction was
affirmed by the First Department in 1996 and by the Court of
Appeals in 1997.*fn1 By papers dated July 27, 1998 and received
by the Pro Se Office on August 5, 1998, he now seeks a writ of
Respondent contends, inter alia, that the petition is
untimely. The fundamental issue presented by this contention is
whether the one year limitations period set forth in
28 U.S.C. § 2244(d)(1)(A), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 runs from the date upon which the
petitioner's conviction was affirmed by the New York Court of
Appeals or, instead, from the date on which his right to seek
review by a petitioner for a writ of certiorari from the United
States Supreme Court expired. Respondent concedes that the
petition is timely if the latter date governs.
The weight of authority favors the view that the "conclusion of
direct review," as that phrase is used in 28 U.S.C. § 2244(d)(1)
as applied to cases in which certiorari either is not sought or
is sought unsuccessfully, occurs on the date on which the time
within which to petition for a writ of certiorari expires or, if
a writ is sought unsuccessfully, the petition is denied.*fn2
Indeed, respondent has cited no case to the contrary. This view,
moreover, is consistent with the Supreme Court's holding that
direct review is concluded, for purposes of determining whether a
petitioner should receive the benefit of a new rule of
constitutional law, when the time to seek certiorari to review
the final state court judgment expires. Caspari v. Bohlen,
510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994).
Respondent's effort to distinguish Caspari is unpersuasive.
Indeed, to adopt its view here would require defendants to seek
federal habeas before the completion of certiorari proceedings
and thus could result in the absurdity of district courts hearing
habeas petitions before direct review by the Supreme Court either
were completed or foreclosed.
Respondent's contention that the petition is untimely is
rejected as a matter of law. The remaining issues presented by
the petition are referred to the Magistrate Judge assigned to
hear and report.