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MUSGROVE v. FILION

November 20, 2002

STEVEN MUSGROVE, PETITIONER,
V.
GARY H. FILION, SUPERINTENDENT, COXSACKIE CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM OF DECISION AND ORDER

The petitioner Steven Musgrove ("Musgrove" or the "petitioner") seeks a petition for a writ of habeas corpus with regard to his murder conviction in the County Court of Suffolk County, New York (the "County Court"). The respondent moves to dismiss the petition on the ground that it is untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244 and 2254 (the "AEDPA").

I. BACKGROUND

In 1998, a jury found the petitioner guilty of two counts of murder in the second degree. The County Court then entered judgment against the petitioner and sentenced him to concurrent terms of twenty-five years to life incarceration. On May 24, 1999, the New York Appellate Division, Second Department (the "Appellate Division") affirmed the judgment of conviction. On November 30, 1999, the New York Court of Appeals denied leave to appeal. Thereafter, the petitioner did not seek a writ of certiorari in the United States Supreme Court.

On March 27, 2000, the petitioner filed a motion in the County Court to vacate his judgment pursuant to N.Y. Crim. Proc. Law § 440 on the ground of ineffective assistance of counsel. The County Court denied that motion and the petitioner moved for leave to appeal to the Appellate Division. On September 26, 2000, the Appellate Division denied leave to appeal. On December 21, 2000, the petitioner filed a petition for a writ of habeas corpus in the Eastern District of New York. The petition raised five grounds: (1) ineffective assistance of trial counsel; (2) improper removal of prospective jurors for cause; (3) failure to re-open the Wade hearing based upon an improper identification procedure; (4) failure to allow a full and fair hearing on the CPL 440 motion; and (5) unspecified violation of the Fourteenth Amendment.

On November 2, 2001, the petitioner filed a petition for a writ of coram nobis to vacate the Appellate Division's decision of May 24, 1999 affirming his judgment of conviction on the ground of ineffective assistance of appellate counsel. On December 17, 2001, the petitioner filed an affidavit with this Court requesting that it stay his petition or in the alternative dismiss it without prejudice until the Appellate Division rules on his petition for a writ of coram nobis. On December 20, 2001, the Court granted the request to withdraw the petition without prejudice and with leave to re-file. On March 11, 2002, the Appellate Division denied the petition for a writ of coram nobis. On July 3, 2002, the petitioner filed the instant petition for a writ of habeas corpus. The instant petition raises the same grounds as in the first petition except it adds the claim of ineffective assistance of appellate counsel. The respondent now moves to dismiss the instant petition on the ground that it is untimely.

II. DISCUSSION

A. The AEDPA

The one year statute of limitations under the AEDPA applies to all state convictions that became final after the statute's April 24, 1996 effective date. 28 U.S.C. § 2244(d)(1). See also Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059 (1997). The AEDPA's one-year statute of limitations begins to run once a conviction becomes "final". 28 U.S.C. § 2244(d)(1)(A). A conviction is "final" upon completion of a defendant's direct appeal in the respective state's highest court and the United States Supreme Court. Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001). A petition for a writ of certiorari in the United States Supreme Court must be filed within ninety days after the state criminal judgment becomes final. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). On February 28, 2000, the petitioner's conviction became "final" for purposes of the AEDPA because this was the final day for the petitioner to seek a writ of certiorari in the United States Supreme Court. From that date, the petitioner had one year to file his petition for a writ of habeas corpus.

However, certain periods of time are tolled under the AEDPA. For example, the one year statute of limitations is tolled when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ." 28 U.S.C. § 2244(d)(2). "[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).

In this case, the petitioner had two post-conviction motions that he filed after his conviction became "final" under the AEDPA: (1) a motion to vacate his conviction pursuant to CPL 440 (filed on March 27, 2000 with no further appellate review available on September 26, 2000); and (2) a petition for a writ of coram nobis (filed on November 2, 2001 with no further appellate review available on March 11, 2002). These periods of time are not included under the statute of limitations. On the other hand, the following periods of time are included:

(1) February 28, 2000 to March 26, 2000-27 days;

(2) September 27, 2000 to November 1, ...


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