The opinion of the court was delivered by: Gleeson, District Judge.
Nicco Plowden, who was convicted of murder in the second degree
in 1995, seeks a writ of habeas corpus, alleging ineffective
assistance of trial and appellate counsel. Respondent has moved
to dismiss the petition as untimely. For the reasons discussed
below, the motion to dismiss is granted.
On January 6, 1990, Kyle Hubbard was standing in front of a
building on McKeever Place in Brooklyn, telling two friends about
an argument he had had with Nicco Plowden earlier in the day.
Just after this conversation, Plowden exited the building; he and
Hubbard spoke; and Plowden then shot and killed Hubbard.
Plowden was subsequently convicted of Murder in the Second
Degree, see N.Y. Penal L. § 120.25, and, on April 10, 1995,
was sentenced to a term of imprisonment of twenty-five years to
On direct appeal, Plowden argued that he should have a new
trial because of prejudicial comments made by the prosecutor
during summation. On February 10, 1997, the Appellate Division,
Second Department concluded that Plowden's claim was "largely
unpreserved." People v. Plowden, 236 A.D.2d 489, 654 N.Y.S.2d 610,
610 (2d Dep't 1997). The court also went on to conclude that
the remarks about which Plowden complained were either "fair
comments on the evidence" or "responsive to arguments presented
in the defense counsel's summation." Id.
On February 13, 1997, Plowden, through counsel, sought leave to
appeal to the New York Court of Appeals. Leave to appeal was
denied on May 16, 1997. See People v. Plowden, 89 N.Y.2d 1098,
660 N.Y.S.2d 392, 682 N.E.2d 993 (1997). (As discussed below,
Plowden avers that he did not find out about the denial until
August 1, 1998.)
Plowden did not file a petition for a writ of certiorari in the
United States Supreme Court.
On September 29, 1998, Plowden filed a pro se motion to
vacate his conviction. See N.Y.Crim. Pr. L. § 440.10. He
alleged that his trial counsel was constitutionally ineffective
for waiving his right to testify and for not locating and calling
as a witness Anthony Johnson, who would have testified that
Hubbard, the murder victim, was a known "bully" and that Plowden
had shot Hubbard when trying to free himself of a "choke-hold"
Hubbard had on him. Plowden also alleged that his appellate
counsel was ineffective for not arguing that trial counsel was
ineffective in failing to ask for a jury charge on manslaughter
in the first degree.
On March 9, 1999, the Supreme Court, County of Kings denied
Plowden's § 440 motion. The court pointed to Plowden's
on-the-record waiver of his right to testify (despite counsel's
advice to the contrary) and an affidavit from trial counsel
stating that she had hired a private investigator who had been
unable to locate Johnson prior to trial. The court said it could
not consider Plowden's claim of ineffective assistance of
appellate counsel, which instead had to be raised in a petition
for a writ of error coram nobis before the appellate court that
had heard his case.
On March 15, 1999, Plowden filed an application for a writ of
error coram nobis in the Appellate Division, Second Department.
That court denied the application on June 14, 1999. See People
v. Plowden, 262 A.D.2d 504, 691 N.Y.S.2d 783 (2d Dep't 1999).
Plowden filed his habeas petition on June 24, 1999, raising the
same ineffective assistance claims he brought in his § 440 and
coram nobis proceedings in state court.
Respondent subsequently moved to dismiss Plowden's petition as
untimely under the one-year statute of limitations period of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
Pub.L. 104-132, 110 Stat. 1214 ...