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.
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.
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 By order dated July 25, 1996, the Appellate Division, First Department ordered that Petitioner's appeal be withdrawn "in accordance with the aforesaid stipulation."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 ...