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HARRISON v. ARTUZ

June 30, 2000

ANTWAN HARRISON, PETITIONER,
V.
CHRISTOPHER ARTUZ, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT. MANUEL CLARK, PETITIONER, V. WAYNE F. BARKLEY, SUPERINTENDENT, RIVERVIEW CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

MEMORANDUM AND ORDER

Both of these petitions for writs of habeas corpus present the question whether an attempt to appeal an unappealable decision — the Appellate Division's denial of a motion for a writ of error coram nobis — tolls the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Answering the question in the negative, I dismiss both petitions as untimely.

BACKGROUND

A. Statute of Limitations

Under AEDPA, a habeas petitioner must file his application for relief within a one-year period of limitations that runs from "the date on which the judgment 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). AEDPA also provides that this one-year period is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2).

Prisoners whose convictions became final before the enactment of AEDPA (like petitioner Clark) had a one-year grace period — from AEDPA's enactment on April 24, 1996, until April 24, 1997 — to file their petitions. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). That grace period is also subject to tolling by a "properly filed application for State post-conviction or other collateral review," 28 U.S.C. § 2244(d)(2). Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000) (per curiam), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 17, 2000) (No. 99-9695).

B. Antwan Harrison

Following a jury trial in Supreme Court, Kings County, petitioner Antwan Harrison was convicted of two counts of Murder in the Second Degree, and one count each of Kidnapping in the First Degree and Criminal Possession of a Weapon in the Second and Third Degrees.

His conviction was subsequently affirmed by the Appellate Division, Second Department. See People v. Harrison, 628 N.Y.S.2d 564 (1995). On June 25, 1996, the New York Court of Appeals denied Harrison leave to appeal his conviction. People v. Harrison, 88 N.Y.2d 936 (1996). Harrison moved for reconsideration, and on July 5, 1996, the Court of Appeals denied the motion.*fn1

Harrison's conviction thus became final on October 5, 1996, when the period within which he could have sought certiorari from the United States Supreme Court expired. See Ross, 150 F.3d at 98. However, at the time his conviction became final, Harrison's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10, which had been filed on August 29, 1995, was still pending before the state courts. Specifically, although the motion had been denied by the trial court on August 27, 1996, Harrison had sought leave to appeal, which the Appellate Division denied on November 15, 1996.

Between November 15, 1996, and December 31, 1996, Harrison had no applications for review pending in the state courts, and the limitations period thus ran for 45 days. On December 31, 1996, Harrison filed his second motion for a writ of error coram nobis,*fn2 thus tolling the limitations period. On May 27, 1997, the Appellate Division denied Harrison's second coram nobis application. People v. Harrison, 658 N.Y.S.2d 970 (2d Dep't 1997). Harrison sought leave to appeal, and on June 27, 1997, the Court of Appeals dismissed the application. People v. Harrison, 90 N.Y.2d 858 (1997). Finally, on May 7, 1998, Harrison mailed the instant petition for federal habeas relief. This mailing is deemed to constitute the filing of the petition. See Houston v. Lack, 487 U.S. 266, 276 (1988) (when a prisoner is proceeding pro se, he is deemed to have filed a document on the date he delivered it to prison authorities for forwarding to the court clerk).

C. Manuel Clark

Following a jury trial in Supreme Court, Kings County, petitioner Manuel Clark was convicted of two counts of Rape in the First Degree, two counts of Sodomy in the First Degree, two counts of Sexual Abuse in the First Degree, and one count of Unlawful Imprisonment in the Second Degree.

The Appellate Division, Second Department, affirmed Clark's conviction on March 17, 1986 see People v. Clark, 500 N.Y.S.2d 50 (2d Dep't 1986), and the Court of Appeals denied Clark's application for leave to appeal, People v. Clark, 67 N.Y.2d 1051 (1986). Clark then moved for reargument in the Appellate Division, which was denied on May 23, ...


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