Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HUTZENLAUB v. PORTUONDO

November 27, 2002

FRED HUTZENLAUB, PETITIONER,
V.
LEONARD PORTUONDO, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM OF DECISION AND ORDER

The petitioner Fred Hutzenlaub ("Hutzenlaub" or the "petitioner") seeks a petition for a writ of habeas corpus involving his robbery and assault convictions 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 1997, a jury found the petitioner guilty of robbery and assault. The County Court then entered judgment against the petitioner and sentenced him to consecutive terms of incarceration. On October 25, 1999, the New York Appellate Division, Second Department (the "Appellate Division") affirmed the judgment of conviction. On January 20, 2000, 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 April 5, 2001, the petitioner filed a motion in the County Court to vacate his judgment on the ground of ineffective assistance of counsel pursuant to N.Y. Crim. Proc. Law § 440. The County Court denied that motion and the petitioner moved for leave to appeal to the Appellate Division. On October 22, 2001, a single Justice of the Appellate Division denied leave to appeal pursuant to CPL 450.15 and 460.15. On November 8, 2001, the petitioner filed a petition for a writ of error corum nobis on the ground of ineffective assistance of appellate counsel. On January 28, 2002, the Appellate Division denied the petition for a writ of error coram nobis. On February 8, 2002, the petitioner filed a petition for a writ of habeas corpus in the Eastern District of New York. The respondent now moves to dismiss that 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 of the final decision from the state's highest court. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998).

On April 19, 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. Beginning April 20, 2000, the petitioner had one year to file his petition for a writ of habeas corpus. See Fed.R.Civ.P. 6(a) ("[T]he day of the act, event or default from which the designated period of time begins to run shall not be included."). The petitioner did not file his petition for a writ of habeas corpus until February 8, 2002. As such, his petition is untimely.

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).

It is well-settled that no appeal lies to the New York Court of Appeals from an order of the Appellate Division denying an application for a writ of error coram nobis. People v. Williams, 742 N.Y.S.2d 603, 97 N.Y.2d 748 (N.Y. 2002); People v. Green, 735 N.Y.S.2d 486, 97 N.Y.2d 626 (N.Y. 2001). In addition, no appeal lies to the New York Court of Appeals from "an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15." People v. Johnson, 746 N.Y.S.2d 688, 98 N.Y.2d 687 (N.Y. 2002); People v. Grossmann, 642 N.Y.S.2d 856, 87 N.Y.2d 1003 (N.Y. 1996); People v. Jones, 626 N.Y.S.2d 752, 85 N.Y.2d 882 (N.Y. 1995).

As a result of these state procedural rules, the Second Circuit has noted that a petition for a writ of error coram nobis "ceas[es] to be pending on the date on which the Appellate Division denied it, because, as of that date, `the door of the New York Court of Appeals [is] closed and further appellate review [is] unavailable.'" Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) (citing Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 1999)). The same reasoning applies to a single Justice of the Appellate Division's denial of leave to appeal to that court pursuant to CPL 460.20. Geraci, 211 F.3d at 9.

In the instant case, the petitioner filed two motions after his conviction became "final" under the AEDPA: (1) a motion to vacate his conviction pursuant to CPL 440 (filed on April 5, 2001 with no further appellate review available on October 22, 2001); and (2) a petition for a writ of error coram nobis (filed on November 8, 2001 with no further appellate review available on January 28, 2002). These periods ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.