objectives, because many inmates could make the same claims."
Martinez v. Kuhlmann, 2000 WL 622626 at *4 (S.D.N.Y. May 15,
2000) (quoting Silvestre v. United States, 55 F. Supp.2d 266,
268 (S.D.N.Y. 1999)); Armand v. Strack, 1999 WL 167720 at *4
(E.D.N.Y. Feb. 19, 1999) ("petitioner's alleged inability to
receive `full assistance' from the [prison] library staff" did
not represent "`extraordinary' or `rare and exceptional'
circumstances, making it `impossible to file his petition'");
Fennell v. Artuz, 14 F. Supp.2d 374, 377 (S.D.N.Y. 1998)
(equitable tolling based on excuses common among prisoners, such
as lack of education and lack of familiarity with legal
research, would undermine the AEDPA statute of limitations).
For the foregoing reasons, the Court incorporates the Report
in its entirety and, for the reasons stated therein and herein,
finds that the Petition is time-barred. The Clerk is
respectfully requested to enter an order dismissing the
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District
Petitioner John Stokes seeks a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254, from his conviction in Supreme Court, Bronx
County, of second degree felony murder (and related lesser
charges) and sentence of twenty-five years to life imprisonment.
(Dkt. No. 1: Pet. ¶¶ 1-4.) Stokes' present federal habeas
petition is dated August 17, 1999, was mailed in an envelope
postmarked September 7, 1999, and was received by the Court's
Pro Se office on September 9, 1999. (Pet. at 2, 7 & envelope.)
For the reasons set forth below, Stokes' petition should be
dismissed as barred by the one-year statute of limitations
imposed by the Antiterrorism and Effective Death Penalty Act
Stokes was convicted in Supreme Court, Bronx County, of second
degree felony murder (and related lesser charges) and on January
24, 1992, sentenced to concurrent prison terms, the longest of
which was twenty-five years to life imprisonment. (Pet. ¶¶ 1-4.)
See also People v. Stokes, 215 A.D.2d 225, 626 N.Y.S.2d 161
(1st Dep't 1995), aff'd, 88 N.Y.2d 618, 648 N.Y.S.2d 863,
671 N.E.2d 1260 (1996).
The 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). (See also Pet. ¶ 9.) Stokes sought leave to
appeal, and on October 10, 1996, the New York 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 New York Court of Appeals held that
although the underlying robbery felony occurred in Connecticut,
since the resulting death (of a pedestrian hit by defendants'
car during their attempt to escape) occurred in New York, Stokes
and Nieves could be prosecuted in New York for felony murder.
On August 25, 1997, Stokes filed a motion in the trial court
to vacate his conviction pursuant to CPL § 440.10. (Pet. ¶
11(a); see also Stokes 2/17/00 Aff. at 1.) According to
Stokes, the motion was denied on May 8, 1998, and the First
Department denied leave to appeal on February 10, 1999. (Pet. ¶
Stokes' Present Federal Habeas Petition
Stokes' present federal habeas petition is dated August 17,
1999, was mailed in an
envelope postmarked September 7, 1999, and was received by the
Court's Pro Se Office on September 9, 1999. (Pet. at 2, 7 &
envelope.) Stokes' habeas petition asserts four claims: (1) that
he cannot be convicted of felony murder in New York since no
element of the underlying robbery felony took place in New York
(Pet. ¶ 12(A)); (2) the unauthorized use of a vehicle charge
fails for the same reason (Pet. ¶ 12(B)); (3) he was deprived of
a fair trial by the exclusion of exculpatory evidence (Pet. ¶
12(C)); and (4) the indictment was defective because it alleged
that the robbery took place in the Bronx (Pet. ¶ 12(D)).
STOKES' PETITION IS BARRED BY THE AEDPA'S STATUTE OF
On April 24, 1996, President Clinton signed into law the
Antiterrorism and Effective Death Penalty Act ("AEDPA"). The
AEDPA instituted a one-year statute of limitations for habeas
corpus petitions filed after April 24, 1996:
(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
toward any period of limitation under this
28 U.S.C. § 2244(d)(1)-(2).
Here, Stokes' conviction became final on January 8, 1997,
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, e.g., Forman v. Artuz, 99 Civ. 9046, 2000 WL
378056 at *3 (S.D.N.Y. April 11, 2000) (Peck, M.J.); Martinez
v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *2 (S.D.N.Y. March
9, 2000) (Sprizzo, D.J. & Peck, M.J.).*fn1
The Second Circuit recently confirmed that the state
collateral attack toll of § 2244(d)(2) does not start the
one-year statute of limitations to run anew; such an
interpretation would allow an inmate to avoid the effect of the
AEDPA's one-year statute of limitations by bringing a belated
state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13,
17 (2d Cir. 2000); Forman v. Artuz, 2000 WL 378056 at *3;
Martinez v. Stinson, 2000 WL 284191 at *3; Torres v. Miller,
99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999)
(Mukasey, D.J. & Peck, M.J.); Varsos v. Portuondo, 1999 WL
558147 at *3; DeVeaux v. Schriver, 1999 WL 1216298 at *4.
"Rather, § 2244(d)(2) merely excludes the time a collateral
attack is under submission from the calculation of the one-year
statute of limitations." Torres v. Miller,
1999 WL 714349 at *4 (citing cases); accord, e.g., Smith v.
McGinnis, 208 F.3d at 17; Forman v. Artuz, 2000 WL 378056 at
Stokes brought his CPL § 440.10 application on August 25,
1997. (See page 2 above.) The trial court denied the motion on
May 5, 1998 and the First Department denied leave to appeal on
February 10, 1999. (See page 2 above.) On the assumption that
the CPL § 440.10 motion was pending for that entire period,
Stokes is entitled to a toll from August 25, 1997 to February
10, 1999, a toll of 534 days.
Thus, from January 8, 1997 (expiration of the 90-day
certiorari period) until the August 25, 1997 filing of Stokes'
CPL § 440.10 motion, 229 days of the one-year limitations period
had run; Stokes' CPL § 440.10 motion entitled him to a toll from
August 25, 1997 until the First Department's denial of leave to
appeal on February 10, 1999; from February 10, 1999 until the
August 17, 1999 date of Stokes' habeas petition,*fn2 another
188 days of the one-year period had run. Thus, a total of 417
non-tolled days had passed when Stokes filed his current federal
habeas petition. Since that is more than 365 days, Stokes'
habeas petition is barred by the one-year AEDPA statute of
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have ten
(10) days from service of this Report to file written
objections. See also Fed.R.Civ.P. 6. Such objections (and any
responses to objections) shall be filed with the Clerk of the
Court, with courtesy copies delivered to the chambers of the
Honorable Richard M. Berman, 40 Centre Street, Room 201, and to
my chambers, 500 Pearl Street, Room 1370. Any requests for an
extension of time for filing objections must be directed to
Judge Berman. Failure to file objections will result in a waiver
of those objections for purposes of appeal. Thomas v. Am,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),
cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38
(1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied,
506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v.
Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir.
1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
May 18, 2000.