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United States District Court, Southern District of New York

May 6, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


Joseph David, Superintendent (the "State"), has moved pursuant to Rule 12(b)(6) to dismiss the petition of pro se petitioner Patrick Denis ("Denis" or "Petitioner"), for a writ of habeas corpus on statute of limitations grounds. For the reasons set forth below, the motion is granted.

Prior Proceedings

Denis, currently incarcerated at Greene Correctional Facility, Coxsackie, New York, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in the Supreme Court of the State of New York for Attempted Murder in the Second Degree. His petition alleges that his plea to the charges in the state court was unlawfully induced, evidence was unconstitutionally withheld by the prosecution, his counsel was ineffective, and the arresting officer and the prosecution concealed the shooting of the victim by the arresting officer.

This motion was marked fully submitted on December 11, 2002.

State Court Proceedings

Denis was convicted upon his plea of guilty on March 3, 1995 and received a sentence of an indeterminate prison term of from 5 to 15 years.

Denis moved to set aside his sentence pursuant to N.Y.C PL 440.20, and his motion was denied on February 2, 1996 by the Supreme Court, Bronx County. In a stipulation dated June 19, 1996, Denis and his counsel, Jan Hoth-Uzzo, Esq. of the Legal Aid Society, agreed to withdraw Petitioner's appeal with prejudice. By order dated July 25, 1996, the Appellate Division, First Department ordered that Petitioner's appeal be withdrawn "in accordance with the aforesaid stipulation."

On November 20, 2001, Denis moved to vacate his judgment of conviction pursuant to N.Y. CPL 440.30. On March 26, 2002, the Supreme Court, Bronx County (Cohen, J.) denied Petitioner's motion. On June 4, 2002, the Appellate Division, First Department, denied Denis's application for leave to appeal the denial of his N.Y. CPl 440.30 motion.


Generally before a petitioner may have his habeas petition heard on the merits in federal district court, he must exhaust the available remedies of the state courts. 28 U.S.C. § 2254(b)(1)(A). "In order for a claim to be exhausted, a petitioner is required to have presented the same claim presented in the habeas petition to each level of the state courts to which the right of appeal lies," Priester v. Senkowski, No. 01 Civ. 3441 (LMM) (GWG), 2002 WL 1448303, at *3 (S.D.N.Y. July 3, 2002).

It appears that Denis may have precluded himself from exhausting his state court remedies via direct appeal when he chose to withdraw his appeal from the First Department. See Priester, 2002 WL 1448303, at *4 ("New York State law permits only one direct appeal of a conviction to the Appellate Division.") (citing Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001)). However, Denis has since attempted to avail himself of state court remedies via his second section 440.30 motion and the unsuccessful appeal of its denial.

While this action might well be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to exhaust state court remedies, a federal district court may deny a habeas petition on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).

Statute of Limitations 28 U.S.C. § 2244(d) was amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which imposed a one-year period of limitation on habeas corpus applications by persons in custody pursuant to the judgment of a state court. The one-year period runs 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).

Paragraph (A) applies here. Denis had one-year from the date on which his judgment of conviction became final by the conclusion of direct review to file his habeas application. See 28 U.S.C. § 2244(d)(1)(A).

Denis was convicted to Attempted Murder in the Second degree on March 3, 1995. On July 25, 1996, the Appellate Division, First Department, ordered that his appeal be withdrawn with prejudice pursuant to a written stipulation entered by the parties. Denis does not indicate when he gave his habeas application to prison authorities for mailing, but it can be no earlier than the date of the petition, August 8, 2002. Thus, his application will be deemed filed on August 8, 2002 for the purposes of considering its timeliness. See German v. United States, 209 F. Supp.2d 288, 291 (S.D.N.Y. 2002).

The one-year limitation period was not tolled during the pendency of his 2001 application for post-conviction relief. See 28 U.S.C. § 2244(d)(2). His CPL 440.30 motion to vacate his judgment of conviction was filed on November 20, 2001, more than four years after the statute of limitations had expired. The Court of Appeals for the Second Circuit has held that the tolling provision of 28 U.S.C. § 2244(d)(2) "does not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840 (2000); accord Taylor v. Hodges, 01 Civ. 2566, 2001 WL 1466091, at *2 (S.D.N.Y. 2001); Scarola v. Kelly, 99 Civ. 4704, 2001 WL 849449, at *3 (S.D.N.Y. 2001) ("[T]olling extends the time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired."). Thus, Denis's post-conviction motion has no effect on the timeliness of the instant petition. See Cuevas v. New York, 01 Civ. 2550, 2002 WL 206985 (S.D.N.Y. 2002) (filing of a N.Y. CPL 440.10 motion eighteen months after the statutory period had expired did not restart the one-year limitation period). The present petition is therefore untimely.


For the reasons stated above, the petition is dismissed as untimely under AEDPA.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).

It is so ordered.


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