The opinion of the court was delivered by: Marrero, District Judge.
Thomas L. Crawford, pro se and incarcerated, petitions for a
writ of habeas corpus under 28 U.S.C. § 2254, attacking his 1992
New York State murder conviction. The Respondent, represented by
the New York County District Attorney's Office (the "State"),
moves to dismiss the petition on two alternative grounds: 1) it
is barred by the Antiterrorism and Effective Death Penalty Act's
("AEDPA") one year limitations period, 28 U.S.C. § 2244(d)(1); or
2) it is precluded for failure to exhaust state remedies. For the
reasons discussed below, the motion is denied.
In 1992, Crawford was convicted of murder in New York County
Supreme Court. He was sentenced to twenty five years to life
imprisonment and is currently incarcerated at Clinton
Correctional Facility. The Appellate Division, First Department
affirmed the conviction, and, on January 27, 1997, the New York
State Court of
Appeals denied leave to appeal from the Appellate Division. See
People v. Crawford, 231 A.D.2d 431, 647 N.Y.S.2d 729 (1st Dept.
1996), leave to appeal denied, 89 N.Y.2d 941, 655 N.Y.S.2d 892,
678 N.E.2d 505 (1997). Crawford did not petition the United
States Supreme Court for a writ of certiorari.
Crawford filed the instant petition in October 1998, raising
several grounds for relief, among them failure to give a proper
Miranda warning, involuntary confession, and ineffective
assistance of counsel. Crawford claims that he raised the same
challenges to his conviction on collateral attack in state court
under N.Y.Crim. P. Law § 440.10. In his § 2254 petition, Crawford
indicates that the § 440.10 motion was denied without hearing on
February 27, 1998. There is no record of that decision, however,
and as will be discussed, other papers before the Court suggest
that the § 440.10 motion, if indeed filed, was never resolved.
In November 1999, the State informed the Court that the trial
court's file with respect to Crawford's case was missing, and
that there was no record of the § 440.10 motion having been filed
or decided. Upon the State's request, Judge Koeltl directed
Crawford to produce to the State any documents in his possession
that related to the § 440.10 motion so that issues of exhaustion
and timeliness could be resolved.
In response to the Court's Order, Crawford produced the
(1) a July 1, 1997 letter from the trial court's "Motion
Support Office" acknowledging receipt of a "440.10 motion";
(2) a December 22, 1997 letter from the Motion Support Office
acknowledging receipt of an unspecified motion;
(3) the trial court's February 27, 1998 order denying
Crawford's request for poor person's relief;
(4) the State's letter to the Appellate Division opposing
Crawford's application for leave to appeal from the February 27,
1998 order; and
(5) Crawford's September 20, 1998 letter to the trial court's
Motions Clerk, complaining that he had received no decision on
his § 440.10 motion.
The State then filed this pre-answer motion to dismiss. The
State's attorney attests that she has searched diligently but has
not found the elusive § 440.10 motion, any record of its
disposition, or Crawford's case file. However, Counsel also
declares that she has uncovered a "motions logbook" maintained by
the trial court which reveals that Crawford filed a "440.10
motion" on June 26, 1997. The State has also provided —
presumably from the prosecutor's case file — 1) a letter from the
Motion Support Office to Crawford informing him that his § 440.10
motion had been calendared for July 25, 1997, and that he would
be notified when a decision had been entered, and 2) a ...