The opinion of the court was delivered by: Berman, District Judge.
In a habeas corpus petition dated August 17, 1999
("Petition"),*fn1 John Stokes ("Stokes" or "Petitioner"),
appearing pro se, challenges his 1992 conviction in New York
State Supreme Court, Bronx County, for second degree felony
murder (and related lesser charges) and his sentence of
twenty-five years to life imprisonment. The Petition alleges:
(1) that Petitioner should not have been convicted in New York
since no element of the underlying robbery took place in New
York; (2) Petitioner's unauthorized use of a vehicle conviction
should not stand for the same reason; (3) Petitioner was
deprived of a fair trial by the exclusion of certain exculpatory
evidence; and (4) the underlying Indictment of Petitioner was
defective because it incorrectly alleged that the robbery took
place in the Bronx.
On May 18, 2000, U.S. Magistrate Judge Andrew J. Peck, to whom
the matter had been referred, issued a Report and Recommendation
(the "Report"), recommending that Mr. Stokes' Petition be
denied. Judge Peck determined that the Petition was time-barred,
i.e., that Petitioner failed to file his Petition within 12
months of the date his judgment (and conviction) became final,
which Magistrate Peck determined was January 8, 1997, under the
Antiterrorism and Effective Death Penalty Act ("AEDPA"),
28 U.S.C. § 2244(d)(1)-(2).*fn2 On July 20, 2000, Petitioner
filed written objections to the Report. For the reasons set
forth below, this Court adopts the Report in its entirety.
Stokes was convicted in Supreme Court, Bronx County, of second
degree felony murder (and related lesser charges) and on January
24, 1992. He was sentenced to concurrent prison terms, the
longest of which was twenty-five years to life imprisonment.
See People v. Stokes, 215 A.D.2d 225, 626 N.Y.S.2d 161 (1st
aff'd, 88 N.Y.2d 618, 648 N.Y.S.2d 863, 671 N.E.2d 1260
The Appellate Division, First Department affirmed Stokes'
conviction on May 11, 1995. People v. Stokes, 215 A.D.2d 225,
626 N.Y.S.2d 161 (1st Dep't 1995). Stokes sought leave to
appeal, and on October 10, 1996, the New York State Court of
Appeals affirmed Stokes' conviction (and that of his accomplice,
Orlando Nieves). People v. Stokes, 88 N.Y.2d 618, 648 N.Y.S.2d 863,
671 N.E.2d 1260 (1996). The Court of Appeals held that,
although the underlying robbery occurred in Connecticut, since
the resulting death (of a pedestrian hit by Stokes and Nieves'
car during their attempt to escape) occurred in New York, Stokes
and Nieves could be prosecuted in New York for felony murder.
Id. ("At issue in these related appeals is the novel question
whether New York has jurisdiction to prosecute a defendant for
felony murder when the homicide takes place here but the
underlying felony is committed in a neighboring State. We answer
that question in the affirmative.").
On August 25, 1997, Stokes filed a motion before the state
trial court to vacate his conviction pursuant to N.Y.Crim. Proc.
Law ("CPL") § 440.10. The motion was denied on May 8, 1998, and
the First Department denied leave to appeal on February 10,
1999. See Pet. ¶ 11(a)-(b).
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). Where, as here, the petitioner
is pro se, "leniency is generally accorded. . . ." Bey. v.
Human Resources Administration, 1999 WL 31122 at *2 (E.D.N.Y.
January 12, 1999).
Judge Peck correctly determined that Petitioner's conviction
became final on January 8, 1997, i.e., ninety days after the New
York Court of Appeals' October 10, 1996, decision affirming his
conviction, "when his time to seek direct review in the United
States Supreme Court by writ of certiorari expired." Ross v.
Artuz, 150 F.3d 97, 98 (2d Cir. 1998); see also
28 U.S.C. § 2244(d)(1)(A) ("The limitation period shall run from the latest
of . . . the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review"). Judge Peck also correctly determined that
the Petition is time-barred.
AEDPA imposes a one-year period of limitation (from the date
when the judgment becomes final by the exhaustion of direct
review, or the expiration of time to seek such review) on habeas
corpus applications filed by persons in custody pursuant to the
judgment of a state court. 28 U.S.C. § 2244(d)(1)(A). AEDPA also
specifically addresses the question of tolling. It states:
(d)(1) A 1-year period of limitation shall apply to
an application for a write 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