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BOLUS v. PORTUONDO

March 26, 2003

ROY J. BOLUS, PETITIONER,
v.
L. A. PORTUONDO, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge.

REPORT-RECOMMENDATION

Petitioner, pro se Roy J. Bolus, a New York State prison inmate as a result of 1988 Albany County Court convictions for numerous crimes, filed a writ of habeas corpus asserting four separate grounds in support of his claim that his conviction should be set aside (Dkt. No. 1).*fn1 In responding to the petition, the Office of the Attorney General for the State of New York ("Attorney General"), acting on respondent's behalf, filed a motion for summary judgment,*fn2 together with supporting papers, in which he claims that the petition is untimely in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (Dkt. Nos. 15-18).*fn3 Bolus has filed both a response and a supplemental response in opposition to that motion (Dkt. Nos. 19-20). Since equitable tolling is warranted in this action, the court recommends that the motion for summary judgment be denied.

I. Background

On November 16, 1988, Bolus was found guilty by a jury for second degree murder, second degree attempted murder, first degree robbery, first degree burglary, and second degree criminal possession of a weapon. People v. Bolus, 185 A.D.2d 1007 (3d Dept. 1992), leave denied, 81 N.Y.2d 785 (1993). County Court Judge Joseph Harris sentenced Bolus to an aggregate prison term of eighty years to life imprisonment, Bolus, 185 A.D.2d at 1007. Although the New York State Supreme Court, Appellate Division, Third Department, reduced the term of incarceration to seventy-five years to life, that court affirmed the convictions in all respects. Id., 185 A.D.2d at 1009. On March 14, 1996, Bolus filed a motion to set aside the sentence pursuant to New York's Criminal Procedure Law ("CPL") § 440.20 (Dkt. No. 19 at ¶ 4). That motion was denied by Albany County Court Judge Larry J. Rosen by Decision and Order dated March 19, 1997 (Dkt. No. 19, Ex. A-2), and no appeal of that order was taken by Bolus (Dkt. No. 8 at P. 3).

On April 20, 1997, Bolus filed a motion pursuant to CPL § 440.10 to vacate his judgment of conviction (Dkt. No. 17 at ¶ 4). However, Judge Rosen denied that motion by Decision and Order dated September 25, 1997. Id. at ¶ 5; see also, Dkt. No. 19 at Ex. B. The Appellate Division denied Bolus' application for leave to appeal Judge Rosen's decision in its order dated December 27, 1997 (Dkt. No. 17 at ¶ 6).

Bolus commenced a federal habeas corpus proceeding in this District pursuant to 28 U.S.C. § 2254 on January 20, 1998. See Bolus v. Kuhlman, 98-CV-0094 (NAM)(GJD) ("Bolus I"). On May 27, 1999, after the Attorney General filed his response in opposition to that petition, Id. at Dkt. Nos. 8-9, Bolus requested that his petition be held in abeyance until he had exhausted a claim alleging ineffective assistance of appellate counsel. Bolus I at Dkt. No. 15 ("May 1999 application"). On August 13, 1999, Bolus wrote to the court and requested that he be informed of the status of Bolus I so that he could determine whether his request to have that action held in abeyance was premature (Dkt. No. 16). The court considered Bolus' August 1999 request as one indicating that the May 1999 application had been prematurely filed, and therefore denied that application. Id.

On September 29, 1999, Bolus sought permission to voluntarily withdraw Bolus I, without prejudice, or in the alternative, to have that action placed on the court's "suspense calender, with leave to re-submit" once he had exhausted his ineffective assistance of appellate counsel claim (Id. at Dkt. No. 17). U.S. District Judge Norman A. Mordue granted that motion in part and dismissed Bolus I, "without prejudice," by order dated August 14, 2000 (Id. at Dkt. No. 20, P. 2).

On August 30, 2000, Bolus filed the coram nobis application to which he had referred in his request to voluntarily dismiss Bolus I (Dkt. No. 19 at ¶ 10). That application was denied by the Appellate Division by order dated November 9, 2000 (Id. at Ex. D). On November 30, 2000, Bolus filed a second motion to vacate his sentence pursuant to CPL § 440.10 (Dkt. No. 17 at ¶ 8). That request was denied by Acting Supreme Court Justice Dan Lamont by Decision and Order dated April 25, 2001 (Dkt. No. 17 at Ex. I), and the Appellate Division denied Bolus' application for leave to appeal that decision in its order dated July 9, 2001 (Id. at Ex. J).

II. Procedural History

Petitioner commenced this proceeding on July 16, 2001.*fn4 See Pet. at P. 7. United States District Judge Thomas J. McAvoy then directed Bolus to provide additional information regarding the state court challenges he had filed regarding his conviction in order to assist the court in determining whether this action was timely commenced in light of the AEDPA's one year statute of limitations (Dkt. No. 6). Bolus filed the required information (Dkt. No. 8), and this court then directed the respondent to file a response to the petition pursuant to the rules governing § 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254 (Dkt. No. 10). The Attorney General then filed the above-referenced motion for summary judgment which Bolus has opposed. Respondent's motion has been referred to this court for the issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(c).

III. Discussion

The rules governing habeas petitions were significantly modified by enactment of the AEDPA. One such change was the institution of a one-year statute of limitations applicable to habeas corpus petitions. Specifically, in light of the AEDPA, 28 U.S.C. § 2244 now provides that:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).

In this case, New York's Court of Appeals denied Bolus leave to appeal on January 5, 1993. Bolus, 81 N.Y.2d at 785. Therefore, that conviction became final on April 5, 1993.*fn5 Since his conviction became final prior the effective date of the AEDPA (April 24, 1996), Bolus was afforded the benefit of a one-year grace period in which to file ...


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