The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge.
REPORT AND RECOMMENDATION
To the Honorable Richard C. Casey, United States District Judge:
Petitioner Jose Martinez's habeas petition should be denied as untimely under the AEDPA's one year statute of limitations.
On July 30, 1992, Martinez pleaded guilty in Supreme Court, New York County, to manslaughter, weapons possession and criminal sale of a controlled substance, and on September 18, 1992, was sentenced pursuant to his plea agreement to an aggregate sentence of ten to thirty years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-7; see also 5/28/03 Affidavit of A.D.A. Jennifer Chung ¶ 11.)
While Martinez's habeas petition claims that no appeal was taken because his appeal was "abandon[ed] by counsel" (Pet. ¶¶ 9-10), in fact an appeal was filed and the First Department affirmed his conviction without opinion on March 16, 1995. People v. Martinez, 213 A.D.2d 1086, 623 N.Y.S.2d 469 (1st Dep't 1995). The New York Court of Appeals denied leave to appeal on June 23, 1995. People v. Martinez, 86 N.Y.2d 738, 631 N.Y.S.2d 618 (1995).
On or about August 13, 2001, Martinez brought a C.P.L. § 440 motion alleging that improper information was in the presentence report. (5/28/03 Chung Aff. ¶ 15 & Ex. B: Martinez C.P.L. § 440 Motion Papers; Dkt. No. 2: Pet. Ex. A: same.) The court denied the motion on or about September 17, 2001 (5/28/03 Chung Aff. Ex. C; Pet. Ex. B) and denied Martinez's reargument motion on February 22, 2002 (5/28/03 Chung Aff. Ex. E; Pet. Ex. F).
On or about March 8, 2002, Martinez filed his federal habeas corpus petition, alleging a single claim: that he was "deprived of his right to counsel at sentencing, and the sentencing court relied on inaccurate pre-sentence report. . . ." (Pet. ¶ 13.)*fn1
The Antiterrorism and Effective Death Penalty Act ("AEDPA") instituted a one-year statute of limitations for habeas corpus petitions:
(d)(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)(1)-(2).
The First Department affirmed Martinez's conviction on March 27, 1995. (See page 1 above.) Because Martinez's judgment became final before enactment of the AEDPA, he had until April 24, 1997 to timely file his habeas petition. See Ross v. Artuz, 150 F.3d 97, 99 (2d Cir. 1999). He did not do so.
Martinez is not entitled to a toll of the AEDPA limitations period, since his C.P.L. § 440 motion was not filed until August 2001, over four years after expiration of his AEDPA time limitation. The Second Circuit has made clear that the state collateral attack toll of § 2244(d)(2) does not start the one-year limitation period to run anew. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000); accord, e.g., Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *13 & n. 16 (S.D.N.Y. Dec. ...