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LUKE v. EDWARDS

April 25, 2001

CORNELL LUKE, PETITIONER,
V.
ERNEST EDWARDS, SUPERINTENDENT, OTISVILLE CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM DECISION

Pro se petitioner Cornell Luke brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his November 16, 1982, conviction in the Supreme Court of the State of New York, Westchester County, for murder in the second degree, petit larceny, and criminal possession of a weapon in the fourth degree. For the reasons set forth below the petition is dismissed as untimely.

PROCEDURAL HISTORY

Petitioner was convicted on November 16, 1982, in New York State Supreme Court, Westchester County, on the aforementioned charges. On November 30, 1982, he was sentenced to an indeterminate term of imprisonment from twenty years to life for murder in the second degree, concurrent with a one-year determinate term for petit larceny and a oneyear determinate term for criminal possession of a weapon in the fourth degree. The Appellate Division affirmed petitioner's conviction on April 8, 1985. People v. Luke, 110 A.D.2d 717, 488 N.Y.S.2d 30 (1985). Leave to appeal to the Court of Appeals was denied on September 13, 1985, People v. Luke, 66 N.Y.2d 616, 494 N.Y.S.2d 1039, 485 N.E.2d 243 (1985), and again upon reconsideration on October 9, 1985. People v. Luke, 66 N.Y.2d 764, 497 N.Y.S.2d 1038, 488 N.E.2d 124 (1985).

On June 12, 1986, petitioner submitted his first habeas corpus petition in the Southern District of New York. By memorandum decision dated September 22, 1986, the Court (Goettel, U.S.D.J.) found that petitioner's claims, with the exception of one,*fn1 were not exhausted for presentation to a federal habeas court. (R: 4).*fn2 Thus, the Court dismissed the petition without prejudice.

Thereafter, by a motion returnable on August 7, 1989, petitioner brought his first CPL 440.10 motion to vacate his conviction. (R: 107-25). On January 5, 1990, the Westchester Supreme Court denied the motion. (R: 134-35). Petitioner again moved to vacate his conviction under CPL 440.10 by papers dated December 19, 1990. (R: 136-41). On July 17, 1991, the Westchester Supreme Court denied the motion as procedurally barred, and, on October 15, 1991, the Appellate Division denied petitioner's application for discretionary appeal from that result. (R: 158-62). Petitioner next brought a petition for an appellate writ of coram nobus, which the Appellate Division denied on May 21, 1992. (R: 163-71, 191).

Approximately five years later, in papers dated January 27, 1997, petitioner brought his third CPL 440.10 motion. (R: 192-223). By a decision and order dated June 18, 1997, the Westchester Supreme Court denied the motion as procedurally barred. (R: 245-49). In papers dated September 19, 1997, petitioner moved the Appellate Division for leave to appeal that decision (R: 249-51), and on November 17, 1997, the Appellate Division denied the request. (R: 249-51, 252). On May 4, 1998, petitioner applied to the Court of Appeals for a certificate to appeal the denial.*fn3 On June 12, 1998, the application was dismissed because, as stated by the court, "the order sought to be appealed is not appealable." (Petitioner's Affirmation, dated October 28, 1999, Ex. C).

On August 23, 1999, petitioner filed the instant petition for a writ of habeas corpus. On September 29, 1999, then Chief Judge Griesa issued an order directing petitioner to show cause as to why the one-year statute of limitations period should not bar the petition. Within that order, Judge Griesa noted that it had been thirteen years and seven months since petitioner's judgment became final.

Petitioner replied on October 28, 1999, alleging that a ninety-day delay between the issuance of the June 12, 1998, Court of Appeals decision and his receipt of that decision caused the statute of limitations to expire. Because he has "with due diligence [been litigating] the issues before the court [since] January 30, 1997," petitioner believes the one-year statute of limitations should not bar his petition.

DISCUSSION

A. Applicable Law

1. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petitioner must file his application for relief within a one-year period of limitations that generally 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). Prisoners such as petitioner, however, whose convictions became final prior to AEDPA's effective date of April 24, 1996, are given a one-year grace period in which to file their habeas petitions, that is, until April 24, 1997. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Moreover, the grace period will be tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent claim or judgment is pending." 28 U.S.C. § 2244(d)(2). Specifically, "a state court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd on other grounds, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (U.S. 2000); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (per curiam) (holding that the "tolling provision excludes ...


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