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").
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.
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.
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
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 ...