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April 3, 2003


The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge


Joseph Jean-Louis,*fn1 proceeding pro se, seeks a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code on the following grounds: that his plea was not knowingly and voluntarily entered; the representation he received was constitutionally deficient; and that he was mentally incompetent at the time his plea was entered. Respondent Charles Greiner seeks to dismiss this petition on the ground that it is time-barred. See Memorandum of Law in Support of Respondent's Motion to Dismiss ("Resp. Mem.") at 1. For the following reasons, respondent's motion is granted and the petition is dismissed.


On December 14, 1998, petitioner was arrested for the attempted robbery of two banks. See People's Response to Defendant's Crim. Pro. Law § 440.10 Motion, Ex. B to Respondent's Affirmation in Support of Motion to Dismiss Petition for Habeas Corpus ("Resp. Aff."). At his arraignment, petitioner was assigned Kenneth Ware of the 18(b) panel to represent him.*fn2 See id. After Ware failed to appear on four of the seven dates that petitioner was in court, petitioner requested and was assigned a new lawyer, Gregory Smith, through the 18(b) panel. See id.

On July 9, 1999, Smith appeared on petitioner's behalf and informed the court that a doctor had examined petitioner and that Smith had prepared a notice of a psychiatric defense. See Transcript of Plea Proceedings, July 7, 1999, Ex. A to Resp. Aff. At that same appearance, however, petitioner indicated his desire to plead guilty and did so to the charge of Attempted Robbery in the Second Degree, in violation of N.Y. Penal Law §§ 110/160. 10(2)(b). See id. Petitioner was sentenced to a term of seven years imprisonment on July 28, 1999, pursuant to a negotiated plea agreement. See Resp. Aff. at ¶ 2. He did not file a timely notice of appeal from the judgment of conviction. See id. at ¶ 7.

In January of 2001, petitioner moved pro se to vacate the conviction pursuant to section 440.10 of New York's Criminal Procedure Law ("section 440.10"), alleging that: (1) he received ineffective assistance of counsel by his first court-appointed lawyer; (2) he received ineffective assistance of counsel by the second assigned counsel for failure to assert an insanity defense; (3) his plea was not knowing or voluntary because his lawyer coerced him into it by indicating that, after a trial, he could receive a sentence of twenty-five years to life; and (4) he failed to understand the "Miranda" warnings given to him by the police and that any statement he made, without an attorney present, violated his Fifth Amendment right against self-incrimination. See People v. Jean-Louin, Ind. No. 10709/98 (Sup. Ct. N.Y. County 2001), Ex. B to Resp. Aff. On June 20, 2001, the Supreme Court of New York County denied his motion, holding that petitioner had failed to establish any grounds to vacate his plea or conviction. See id.

On July 21, 2001, petitioner sought leave from the Appellate Division to appeal the denial of his section 440.10 motion. See Resp. Aff. at ¶ 4. Because petitioner had not filed a timely direct appeal, the Appellate Division, First Department, treated petitioner's filing as an application to file a late notice of appeal, as well as an application to appeal the denial of his section 440.10 motion. See id. at ¶ 7.

Petitioner's federal habeas petition, which was not dated, was received in this Court's Pro Se Office on January 15, 2002. See id. at ¶ 5. This Court placed petitioner's habeas petition on the suspense docket on January 2, 2003, pending the outcome of petitioner's motion to file a late notice of appeal. On January 16, 2003, the First Department denied petitioner's motion to file a late notice of appeal. See id. at ¶ 9. The First Department has not yet issued a decision on petitioner's section 440.10 motion. See id. This case was reinstated to the active docket on February 24, 2003, and petitioner was given until March 28, 2003 to file a reply.


A. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitation on the filing of habeas petitions by a prisoner challenging a state court judgment of conviction. This one-year limitations period generally runs from the date on which petitioner's conviction becomes "final by the conclusion of direct review or the expiration of time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A) (2000); Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001).

In this case, the one-year limitations period began running on August 27, 1999, when petitioner's time for filing a notice of appeal from his judgment of conviction expired. See N.Y.C.P.L.R. § 460.10(1) (McKinney 1994 & Supp. 2003). Petitioner's motion for late notice of appeal was denied, and this denial did not "restart" the AEDPA limitations period. See Bethea v. Girdich, 293 F.3d 577, 578-79 (2d Cir. 2002). As such, petitioner had until August 28, 2000 to file his habeas petition. Petitioner did not file, however, until January of 2001, approximately five months after the limitations period expired.

B. Equitable Tolling

Because AEDPA's "one-year period is a statute of limitations rather than a jurisdictional bar," courts may equitably toll the period in appropriate cases. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). Equitable tolling, however, only applies in "rare and exceptional" circumstances. Id. Moreover, petitioner must show that these exceptional circumstances "prevented him from filing his petition on time." Id. That is, there must be a causal relationship between the extraordinary or exceptional circumstances and the late filing, which cannot be shown if, acting with reasonable ...

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