incarceration imposed were ordered to run concurrently as to each
sale/possession pair with each of the two pairs to run consecutive to the
other. Smith is currently serving her sentence.
On August 18, 1998, the petitioner's appellate counsel perfected her
appeal to the Appellate Division, Second Department by filing a brief in
that court. Counsel raised the following issues in her appellate brief:
(1) the sentences imposed upon her were unduly harsh and excessive and
should be modified as a matter of discretion in the interest of justice;
(2) the imposition of the surcharges and fees upon her constituted an
unreasonable hardship; (3) because the two counts of criminal possession
of a controlled substance in the third degree were based upon the same
substance encompassed within the two counts of criminal sale of a
controlled substance in the third degree, they should be dismissed in the
interest of justice; and (4) the evidence adduced at trial did not
establish her guilt beyond a reasonable doubt and the verdict was against
the weight of the evidence.
In a decision dated December 31, 1998, the Appellate Division, Second
Department, modified the judgment of conviction entered against the
petitioner to the extent that it ordered all sentences of incarceration
imposed by the trial court be served by the petitioner concurrently. See
People v. Smith, 256 A.D.2d 629, 682 N.Y.S.2d 888 (2d Dept. 1998). As
modified, the court affirmed the judgment of conviction. Id. at 630.
On or about January 12, 1999, the petitioner sought leave to appeal to
the New York State Court of Appeals. As part of her application, the
petitioner claimed that the sentence imposed upon her constituted cruel
and unusual punishment and that the verdict was not based upon proof
beyond a reasonable doubt. On June 25, 1999, the Court of Appeals
(Levine, J.) denied the petitioner's leave application. People v. Smith,
93 N.Y.2d 979, 695 N.Y.S.2d 65 (1999).
On or about March 2, 1999, the petitioner moved the County Court,
Suffolk County, for poor person status and a free copy of the
stenographic transcript of the proceedings in the case. Because the
petitioner failed to set forth any facts to demonstrate her need for the
transcripts and sufficient facts with regard to her financial condition,
the County Court, Suffolk County, denied her application in a memorandum
dated March 22, 1999.
On or about November 3, 2000, the petitioner filed a motion in the
County Court, Suffolk County, seeking to vacate her judgment of
conviction pursuant to Criminal Procedure Law ("C.P.L.") § 440.10. In
support of her motion, the petitioner claimed that: (1) the verdict was
not supported by evidence establishing her guilt beyond a reasonable
doubt; (2) the trial court's evidentiary rulings and jury instructions
were erroneous; (3) the prosecutor committed Rosario (People v. Rosario,
9 N.Y.2d 286, 213 N.Y.S.2d 448, rearg. denied, 9 N.Y.2d 908,
216 N.Y.S.2d 1025, cert. denied, 368 U.S. 866 (1961)) and Brady (Brady
v. Maryland, 373 U.S. 83 (1963)) violations; (4) her attorney's conduct
constituted ineffective assistance of counsel; and (5) wiretapping was
illegally conducted. In an order dated February 2, 2001, the County
Court, Suffolk County denied the petitioner's C.P.L. § 440.10 motion
in its entirety.
On or about July 17, 2001, pursuant to C.P.L. §§ 450.15 and 460.15,
the petitioner moved the Appellate Division, Second Department, for a
certificate granting leave to appeal from the order of the County Court,
Suffolk county denying her C.P.L. § 440.10 post-conviction motion. In
an order dated September 27, 2001, the
Appellate Division, Second
Department denied the petitioner's application for leave to appeal to the
Appellate Division, Second Department.
On March 6, 2002, the petitioner submitted the present application for
a writ of habeas corpus. Her petition raises two claims: (1) her
conviction was obtained by the use of evidence illegally obtained; and
(2) she was denied effective assistance of counsel. On March 18, 2002,
this Court issued an order directing the respondent to show cause why a
writ of habeas corpus should not be issued.
On May 10, 2002, the respondent filed a motion to dismiss the petition
on the ground that it is time barred. On March 24, 2002, the petitioner
filed papers in opposition to the motion.
This petition is brought pursuant to 28 U.S.C. § 2254, and was
filed on March 6, 2002, after the April 24, 1996 effective date of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA").
Accordingly, the provisions of the AEDPA apply to the petitioner's case.
Williams v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 1486 (2000).
Section 2244(d)(1) provides that when a petitioner is in custody
pursuant to a judgment of a state court, the one-year statute of
limitations for filing a habeas corpus petition begins running from the
(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;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). Smith's petition does not allege facts that
invoke subsection (B) which permits the one-year period to begin running
on the date on which a government impediment to the motion is removed;
subsection (C) which provides for the limitations period to begin running
when the rights asserted by the petitioner were initially recognized by
the Supreme Court; or subsection (D) which provides that the limitations
period should begin running when the facts supporting the claim could have
been discovered through due diligence. Therefore, the timeliness of
Smith's petition hinges on whether she filed it within one year of the
date on which her judgment of conviction became final.
A prisoner's judgment of conviction becomes final under Section 2254 of
the AEDPA when the United States Supreme Court denies the prisoner's
petition for a writ of certiorari or the time for seeking such a writ has
expired, which is 90 days. Williams v. Artuz, 237 F.3d 147, 148 (2d Cir.
2001); Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). The New York Court
of Appeals denied the petitioner's request for leave to appeal the
Appellate Division's decision on July 25, 1999. Thus, Smith's conviction
became final 90 days later, on September 23, 1999, and the one-year
statute of limitations period began running. See Williams, 237 F.2d at
148; Ross, 150 F.3d at 98.
The limitations period ran for 406 days until November 3, 2000, when
the petitioner filed her application with the
County Court, Suffolk
County to vacate the judgment of conviction entered against her pursuant
to C.P.L. Article 440. However, by that time, the petitioner was past the
one-year statute of limitations period by 41 days. Having fully expired,
the one-year limitation period could not be revived by her subsequent
collateral challenge. The petitioner explains that her delay in filing
her appeal was caused by her inability to obtain transcripts. However,
given that the petitioner eventually filed her petition without the
transcripts, the Court finds her argument without merit. The Court
further finds that the petitioner fails to demonstrate any valid reason
for the unjustifiable delay or that the equitable tolling applies because
of "rare and exceptional circumstances." Smith v. McGinnis, 208 F.3d 13,
17 (2d Cir.), cert. denied, 531 U.S. 840 (2000). As such, Smith has
exceeded the statute of limitations by 41 days, and her petition must be
dismissed as time-barred.
Having reviewed the submissions of the parties and based on the
foregoing, it is hereby
ORDERED, that the petition for a writ of habeas corpus is dismissed as
time-barred; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
© 1992-2003 VersusLaw Inc.