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FORMAN v. ARTUZ

June 14, 2000

EUGENE FORMAN, PETITIONER,
V.
CHRISTOPHER ARTUZ, SUPERINTENDENT, GREENHAVEN CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

I. Background

In a petition dated July 20, 1999*fn1, Eugene Forman ("Forman" or "Petitioner"), appearing pro se, filed a petition for a writ of habeas corpus ("Petition") in this Court challenging his 1991 conviction in New York State Supreme Court, Bronx County, for murder in the second degree (New York Penal Law § 125.25[1], [2]) and criminal possession of a weapon in the second degree (New York Penal Law § 265.02[4]). Petitioner asserts that certain alleged defects in the underlying grand jury indictment deprived him of constitutional protections.

II. Procedural History

A. State Court Proceedings

Following a jury trial, Petitioner was convicted in Supreme Court, Bronx County, of second degree murder and criminal possession of a weapon and, on November 6, 1991, was sentenced to twenty-five years to life imprisonment. On August 5, 1993, January 5, 1994, and August 28, 1995, respectively, Petitioner filed three motions pursuant to N.Y.Crim. Proc. Law ("CPL") § 440.10 to vacate the judgment of conviction, all of which were denied by the Supreme Court, Bronx County (on September 30, 1993, November 4, 1994, and November 20, 1995, respectively).

The Appellate Division, First Department affirmed Petitioner's conviction on direct appeal on April 9, 1996. People v. Forman, 226 A.D.2d 174, 640 N.Y.S.2d 518 (1st Dep't 1996). The New York State Court of Appeals denied leave to appeal on May 28, 1996, People v. Forman, 88 N.Y.2d 878, 645 N.Y.S.2d 453, 668 N.E.2d 424 (1996) (table), and denied Petitioner's application for reconsideration on July 30, 1996.*fn2 People v. Forman, 88 N.Y.2d 966, 647 N.Y.S.2d 720, 670 N.E.2d 1352 (1996) (table). Petitioner did not, thereafter, seek a writ of certiorari from the United States Supreme Court.

On or about April 15, 1997, Petitioner moved in Supreme Court, Bronx County to reargue the November 20, 1995 denial of his (third) CPL § 440.10 motion. The Supreme Court, Bronx County, denied that motion on July 30, 1997. The Appellate Division, First Department denied leave to appeal on October 23, 1997. (Petitioner's December 1, 1997 motion to reargue the denial of leave to appeal was denied by the First Department on December 23, 1997.)

B. State Habeas Petition

On or about January 24, 1996, Petitioner sought a state writ of habeas corpus. That application was dismissed by the Supreme Court, Westchester County on July 19, 1996. On or about July 27, 1996, Petitioner appealed that dismissal to the Appellate Division, Second Department.*fn3 On May 12, 1997, the Second Department dismissed Petitioner's appeal from the Supreme Court's denial of his state habeas petition for "failure to prosecute." See Report at 423. Petitioner claims that he did not receive notice of entry of that (Second Department) order of dismissal. Petitioner then filed an application for leave to appeal with the New York State Court of Appeals on August 10, 1998; that application was denied on October 27, 1998. On November 9, 1998, Petitioner moved for reconsideration. The Court of Appeals denied Petitioner's application for reconsideration on December 22, 1998. (Petitioner claims he received notice of that denial on January 4, 1999.)

C. Federal Habeas Petition

As noted, Petitioner's instant (Federal) habeas corpus petition is dated July 20, 1999; the affidavit of service is dated August 2, 1999 and the Petition was filed in the Court's Pro Se office on August 4, 1999. Judge Peck concluded that the Petition was untimely, and that "The Court need not decide whether Forman's reargument motion . . . [tolled AEDPA's statute of limitations] because even if it [did], it would stop the clock only while it was pending, i.e., from April 15, 1997 to December 23, 1997. The combined tolls from Forman's state habeas petition and his motion to reargue are not sufficient to make Forman's federal habeas petition timely." Report at 426.

III. Analysis

A. Standard of Review

This Court may adopt those portions of the Report to which no objections have been made and which are not facially erroneous. See, e.g., Letizia v. Walker, 1998 WL 567840, at *1 (W.D.N.Y. Aug. 27, 1998); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). The Court conducts a de novo review of those portions of the Report to which objections have been made. See, e.g., Letizia, 1998 WL 567840 at *1; Pizarro, 776 F. Supp. at 817. Once objections are received, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See, e.g., DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). Here, the Court has reviewed the (entire) underlying record, the Report and Recommendation, as well as the applicable legal authorities de novo.*fn4

At issue here is whether Petitioner's Federal habeas corpus application should be dismissed as untimely under the oneyear statute of limitations imposed by AEDPA. Judge Peck correctly determined that the Petition is time-barred under AEDPA. Judge Peck did not resolve definitively*fn5 the question of whether Petitioner's state habeas application or Petitioner's motion to reargue the denial of his third CPL § 440.10 application tolled AEDPA's statute of limitations.*fn6 Rather, Judge Peck ruled that even if both motions were construed to toll the statute of limitations, the Petition would have had to have been filed, at the latest, by December 23, 1998. Since the Petition was not filed until August, 1999, i.e., a full 8 months later, it is time-barred.*fn7

As noted, AEDPA imposes a one-year period of limitation on habeas corpus applications filed by persons in custody pursuant to the judgment of a state court and also specifically addresses the question of tolling. It states:

(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 ...

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