The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge
REPORT AND RECOMMENDATION
Pro se petitioner Rudy Roa brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his 1995 conviction on murder, attempted murder, and robbery charges. The respondent has filed a pre-answer motion to dismiss the petition on the ground that it is untimely. For the reasons that follow, I recommend that the respondent's motion be granted, and that this proceeding be dismissed.
Roa's conviction arose out of an incident during which Roa and another person entered an apartment in Upper Manhattan, sought to obtain money and drugs, and shot and killed the occupant of the apartment, Juan Munoz. (Pet'r's Br. on App. at 8-9; Resp't's Mem. at 2). Munoz's girlfriend Evelyn Rivera also was shot, but she survived. (Id.).
On January 12, 1995, after a trial in Supreme Court, New York County, before Justice Frederic Berman and a jury, Roa was convicted on two counts of Murder in the Second Degree, one count of Attempted Murder in the Second Degree, and two counts of Robbery in the First Degree. (See Affirm. of Morrie Kleinbart, Esq., dated Nov. 8, 2002 ("Kleinbart Affirm."), ¶ 2). On March 22, 1995, Roa was sentenced to concurrent prison terms of twenty-five years to life on the murder counts; a consecutive prison term of eight and one-third to twenty-five years on the attempted murder count; and concurrent prison terms of eight and one-third to twenty-five years on the robbery counts, to be served concurrently with the sentences on the murder counts. (Id.)
On or about February 11, 1997, Roa moved pursuant to Section 440. 10 of the New York Criminal Procedure Law for an order vacating the judgment of conviction. (See Pet. ¶ 12(a)(5)). On March 14, 1997, this motion was denied. (Id. ¶ 12(a)(6)). Thereafter, on September 16, 1997, the Appellate Division denied Roa leave to appeal from the order denying his motion. People v. Roa, 1997 N.Y. App. Div. LEXIS 9987 (1st Dep't Sept. 16, 1997).
Roa's direct appeal from the judgment of conviction raised two claims: first, that the trial court deprived him of due process by failing to instruct the jury properly with regard to the evaluation of eyewitness testimony; second, that his sentence was excessive. (See Pet. Attach. (Br. on App. at 1-2)). On March 14, 2000, the Appellate Division unanimously affirmed the judgment of conviction, holding that the jury charge claim was unpreserved and meritless, and that the sentence imposed was not an abuse of discretion. People v. Roa, 270 A.D.2d 103, 704 N.Y.S.2d 470 (1st Dep't 2000). On July 28, 2000, the Court of Appeals denied Roa leave to appeal from the Appellate Division order affirming his conviction. People v. Roa, 95 N.Y.2d 857, 714 N.Y.S.2d 8 (2000). Roa did not seek a writ of certiorari. (Pet. ¶ 10(g)).
Roa's habeas petition is dated July 1, 2002 and file stamped as having been received by this Court's Pro Se Office on July 11, 2002. (Docket No. 1). In his petition, Roa alleges that error of constitutional dimensions occurred at his trial through the denial of his right to counsel of his own selection, the use of a coerced confession, the denial of his right to secure the testimony of witnesses through compulsory process, the denial of his right to testify on his own behalf, excessive pre-indictment delay, and the ineffective assistance of counsel. (Petition ¶ 13).
On November 8, 2002, the respondent filed a motion to dismiss Roa's petition as untimely. (Docket No. 6).*fn1
Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), an inmate generally must file a federal habeas corpus petition within one year after the date that his conviction becomes final or the facts giving rise to his claim could have been discovered.
28 U.S.C. § 2244(d)(1).*fn2 The one-year limitations period is subject, however, to the ...