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GILLYARD v. HERBERT

January 30, 2003

WAYNE GILLYARD, PETITIONER,
v.
VINCENT HERBERT, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Denny Chin, United States District Judge

Wayne Gillyard, currently in the custody of Attica Correctional Facility, petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent has moved to dismiss the petition as time-barred. See 28 U.S.C. § 2244(d)(1). For the following reasons, the motion should be granted.

I. BACKGROUND

A. The Trial and Direct Appeal

By New York County Indictment Number 421/92, filed on May 13, 1992, Gillyard was charged with two counts of Murder in the Second Degree (New York Penal Law §§ 125.25[1], [3]), two counts of Robbery in the First Degree (New York Penal Law §§ 160.15[1], [4]) and one count of Robbery in the Second Degree (New York Penal Law § 160.10[1]). See Memorandum of Law in Support of Motion to Dismiss, dated October 4, 2002 ("Resp. Motion") (annexed to Notice of Motion, Affirmation, Memorandum of Law & Exhibits in Support of Motion to Dismiss Petition as Timebarred, filed October 8, 2002 ("Notice")), at 2. A jury trial was held before Justice Alvin Schlesinger, Supreme Court, New York County, beginning November 24, 1992. Id. at 1-2. On December 3, 1992, Gillyard was found guilty of the only count submitted to the jury: Murder in the Second Degree. Id. at 2. On January 7, 1993, a judgment of conviction was entered sentencing him to a prison term of twenty years to life. Id.; see Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed January 8, 2001 ("Petition"), ¶¶ 2-4.

Gillyard appealed his conviction to the Appellate Division, First Department, alleging that i) the trial court erred in refusing to allow him the opportunity to introduce certain evidence at trial, and ii) the trial court should have given the jury an "accomplice-in-fact" instruction as to Muhammad Johnson, the sole eyewitness to the crime. See generally Brief for Defendant-Appellant, dated July 1998 ("Def. Brief") (reproduced in Notice, Ex. B). The Appellate Division affirmed the conviction by decision dated February 23, 1999. People v. Gillyard, 258 A.D.2d 381 (1st Dep't 1999). On June 24, 1999, the Court of Appeals denied Gillyard's application for leave to appeal. People v. Gillyard, 93 N.Y.2d 970 (1999). Gillyard did not file a petition for writ of certiorari to the United States Supreme Court or seek collateral review.

One week after the Court of Appeals denied leave to appeal, Gillyard's appellate counsel sent Gillyard a letter informing him of the denial of leave to appeal. Letter from Amy Donner, dated July 1, 1999 (annexed to Petitioner's Amended Affirmation, dated June 13, 2002 ("Amended Aff."), Ex. "Evidence 11#"), at 1. The letter also informed Gillyard that he could file a petition in federal court for writ of habeas corpus, describing in detail the issues that Gillyard could appropriately raise in such a petition. Id. at 2. Finally, the letter informed Gillyard of the one-year limitations period applicable to petitions for writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244 (d)(1). Specifically, the letter stated:

I want to be certain that you understand . . . that, under provisions adopted by Congress in 1996, you are required to file the petition within one year of the conclusion of the direct appeal. Thus, in your case, if you choose to file a habeas petition, you would have to do so before June 23, 2000, since the Court denied our leave application on June 24, 1999.
Id. at 3 (emphasis in original). This letter was written prior to the Second Circuit's decision in Williams v. Artuz, 237 F.3d 147 (2d Cir.), cert. denied, 534 U.S. 924 (2001), which held that a petitioner has an additional 90 days following the exhaustion of appeals (or following the completion of United States Supreme Court certiorari proceedings) to file a federal habeas petition. Id. at 151.

B. The Instant Petition

The petition for writ of habeas corpus was filed in the Northern District of New York on January 8, 2001. See Petition at 1.*fn1 The Northern District of New York sent Gillyard a receipt for the petition dated January 12, 2001, after which the petition was transferred to the Southern District of New York. In the petition, Gillyard presented the same arguments that he made before the Appellate Division. See generally Memorandum of Law in Support of Application for Writ of Hebeas [sic] Corpus, filed January 8, 2001 ("Habeas Mem.").

As it appeared the petition was time-barred under the AEDPA, Chief District Judge Michael B. Mukasey directed Gillyard to show cause why the statute of limitations should not bar the petition. See Order, dated April 24, 2001. Gillyard filed his affirmation on May 14, 2001, which stated in its entirety: "I don't relly no the law like that I have some one helpin me out on apply at this time, to say I'm a wear of the limitation." See Petitioner's Affirmation, dated May 9, 2001, at 1 (errors in original). By order dated May 22, 2002, Judge Mukasey ruled that Gillyard's affirmation failed to comply with the instructions in his April 24, 2001 order and granted Gillyard an additional thirty days in which to file an amended affirmation. See Order, dated May 22, 2002, at 1. Gillyard thereafter filed an amended affirmation providing more arguments regarding his failure to file timely.

On October 8, 2002, the respondent moved to dismiss the petition as time-barred. Gillyard filed a reply to this motion on November 15, 2002. See Petitioner's Opposition to Respondent's Motion ...


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