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September 7, 2001


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


Petitioner Larry Robinson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The procedural history of his case raises an important question of statutory interpretation. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), imposes a one-year limitations period on federal habeas petitions that begins to run, in most cases, on the date on which the state court judgment becomes final. See 28 U.S.C. § 2244(d)(1).*fn1 Section 2244(d)(2), however, provides that the one-year period is tolled while a properly filed application for state post-conviction review of the challenged conviction is "pending." Robinson filed such an application, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, and it was denied by the state trial court on February 17, 2000. Ninety-six days later, on May 23, 2000, Robinson sought leave to appeal that denial, an application that was later denied.

The question is whether Robinson's application for post-conviction review was "pending" between its denial by the state trial court and his filing of the application for leave to appeal. Because I conclude it was not, and petitioner has raised no claim that the limitations period should be equitably tolled, the petition is dismissed as untimely.


On the afternoon of August 16, 1988, Perette Andre and her boyfriend, Frenel St. Clair, went to Prospect Park in Brooklyn for a picnic. After some time, the couple laid down on a blanket and fell asleep. Shortly thereafter, an unidentified Hispanic man and a second man, who was later identified as Robinson, arrived in the area near the couple. After the two men whispered to each other, the Hispanic man approached the sleeping couple, stealing jewelry from Andre and a wallet from St. Clair. Robinson was watching from a few feet away. Andre awoke and screamed as her jewelry was being taken. St. Clair awoke and chased the Hispanic man, knocking him to the ground. While they fought, Robinson approached from behind St. Clair and hit him on the back of the head with a small brown object. St. Clair was then stabbed in the heart and killed; the prosecution's witnesses gave inconsistent testimony on the question whether Robinson or the Hispanic man did the stabbing. Both men then fled the park together.

Robinson was charged with murder in the second degree (three counts) and robbery in the first degree (two counts). He was tried twice. In the first trial, the jury acquitted him of intentional murder but deadlocked with respect to the two felony murder counts and the robbery counts. At the conclusion of his second trial, which began on May 21, 1991, Robinson was convicted of felony murder and both counts of robbery in the first degree. On August 28, 1991, he was sentenced to terms of imprisonment of twenty-two years to life for the murder conviction and three to nine years for each robbery conviction. The terms for the robbery convictions were to run concurrently with each other but consecutively to the term for the murder conviction.

A. The Post-Conviction Litigation in State Court

On October 29, 1997, Robinson filed an appeal in the New York Supreme Court, Appellate Division, Second Department.*fn2 He asserted that a lineup identification of him was improperly admitted at trial; that the evidence was insufficient; that the prosecution had committed a Brady violation by failing to timely disclose the names and addresses of two witnesses who later disappeared; that he was denied a speedy trial; that the trial court exhibited pro-prosecution bias; that certain evidentiary errors impeded his ability to present a defense; that the jury charge was erroneous in several respects; that the prosecutor committed misconduct in summation; and that the combined sentences were excessive.

On April 6, 1998, the Appellate Division affirmed Robinson's convictions but modified his sentence, ordering all of the prison terms to run concurrently. People v. Robinson, 249 A.D.2d 333, 670 N.Y.S.2d 880 (2d Dep't 1998). The court rejected on the merits the claims related to the identification testimony, the sufficiency of the evidence, the Brady violation, speedy trial and the jury charge regarding felony murder. Id. at 880. The remaining contentions were denied on the ground that they were "either unpreserved for appellate review or without merit." Id. Robinson applied for leave to appeal his conviction to the New York Court of Appeals, which denied the application on August 13, 1998. People v. Robinson, 92 N.Y.2d 904, 680 N.Y.S.2d 68, 702 N.E.2d 853 (1998).

As mentioned above, on October 6, 1999, Robinson filed a motion to vacate his conviction pursuant to CPL § 440 in the Supreme Court, Kings County, raising claims of ineffective assistance of trial counsel. In a written order dated February 17, 2000, the Supreme Court denied Robinson's § 440 motion. On May 23, 2000, Robinson sought leave to appeal the Supreme Court's denial of his § 440 motion, and leave to appeal was denied on July 12, 2000. On August 4, 2000, Robinson filed the instant petition for a writ of habeas corpus.

Oral argument of the merits of the petition was held on May 11, 2001. At that time, I raised sua sponte the question whether the petition had been filed within the one-year limitations period established by AEDPA.*fn3 See 28 U.S.C. § 2244(d)(1)(A). Specifically, I noted that (1) almost eleven months of the period had elapsed before Robinson filed his § 440 motion; and (2) more than three months had elapsed between the February 17, 2000 denial of the § 440 motion and the May 23, 2000 filing of Robinson's application for leave to appeal that denial. If the limitations period was not tolled during the latter period, the petition was not timely filed. Moreover, it appeared that the application for leave to appeal may itself have been untimely, as New York law requires such applications to be filed within 30 days of the defendant's receipt of a copy of the adverse decision from the prevailing party. Thus, even if those 30 days (plus the time it took for Robinson to receive a copy of the decision) were included in the period tolled, the remaining time of approximately two months before the application for leave to appeal was filed might render the petition untimely unless there were a basis for tolling it as well.

I thus directed the parties to file supplemental briefs to address, inter alia, the timeliness of the petition, including the facts regarding notice to Robinson of the Supreme Court's denial of the § 440 motion. As a result of the supplemental submissions, an evidentiary hearing on this issue (and one other issue as well*fn4) was held on August 24, 2001.

Joel A. Brenner, Esq., who represented Robinson for the § 440 motion and represents him on this petition,*fn5 conceded that he received actual notice of the decision denying the § 440 motion by mail from the court on February 26, 2000. Moreover, Robinson himself testified that in late February of 2000 he received service of a copy of the order by mail from the District Attorney, together with a "notice of entry." Robinson nevertheless contends that the 30-day period to file for leave to appeal the denial of the § 440 motion was not triggered because New York law required that the District Attorney's service be made on Brenner, rather than Robinson. Robinson further argues that since his application for leave to appeal was timely, the instant petition is also timely because AEDPA's statute of limitations was tolled from the time he initially filed his § 440 motion until the Appellate Division denied his application for leave to appeal, that is, from October 6, 1999, until July 12, 2000.


A. The Authority to Raise Sua Sponte the Untimeliness of a Section 2254 Habeas Petition

The Second Circuit has held that a district court may raise an AEDPA statute of limitations issue sua sponte so long as petitioner has had notice and a prior opportunity to be heard. Acosta v. Artuz, 221 F.3d 117, 124-25 (2d Cir. 2000). In so holding, the court reasoned that AEDPA's statute of limitations implicates values that transcend the concerns of the parties:

The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time. Like the other procedural bars to habeas review of state court judgments, the statute of limitations implicates interests of both the federal and state courts, as well as the interests of society, and therefore "it is not inappropriate for the court, on its own motion, to invoke the doctrine."

Id. at 123 (quoting Brown v. Fauver, 819 F.2d 395, 398 (3d Cir. 1987)).

In this case, respondent did not move to dismiss the petition as untimely. However, in advance of the May 11, 2001, oral argument, I informed the parties that they should be prepared to address the issue of timeliness. In addition, the parties were invited to submit supplemental briefs addressing the issue, and an evidentiary hearing was held. Thus, I ...

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