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").
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.
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, ...