The opinion of the court was delivered by: VICTOR Marrero, District Judge.
On November 2, 1998, following a jury trial in New York State Supreme Court, Bronx County, Adams was convicted of manslaughter in the first degree and sentenced, as a second violent felony offender, to twenty-five years imprisonment. (See Affidavit in Support of Motion to Dismiss Petition for Habeas Corpus dated February 26, 2003 ("State Aff."), ¶ 3; Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody dated April 23, 2002 (the "Petition") at 2.)
In his direct appeal to the State Supreme Court, Appellate Division (the "Appellate Division"), First Department, Adams, through counsel, raised three grounds for reversal of his conviction: (1) that the State's opening remarks were improper and prejudicial; (2) that the State's closing remarks were improper and prejudicial; and (3) that the trial court's jury instruction pursuant to Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (the "Allen Charge") was coercive.*fn1 (See Petition at 3; State Aff., ¶ 5.) On December 21, 1999, the Appellate Division unanimously affirmed Adams's conviction. See People v. Adams, 267 A.D.2d 140, 701 N.Y.S.2d 22, 23 (1st Dep't 1999). The court held that Adams's claim regarding the State's opening remarks was unpreserved for appellate review, and that his requests for curative instructions were abandoned by his failure to identify the offensive statements in the record. The court further held that Adams's claim regarding the State's closing remarks was unpreserved for appellate review, and, in any event, without merit. Finally, the Appellate Division held that the trial court's Allen Charge was not coercive. See id. On March 13, 2000, the New York Court of Appeals denied Adams's application for leave to appeal the Appellate Division's ruling. See People v. Adams, 94 N.Y.2d 916, 708 N.Y.S.2d 355, 729 N.E.2d 1154, 1154 (2000). Adams did not seek a writ of certiorari to the United States Supreme Court. (See Petition at 3.)
On May 1, 2001, Adams filed a motion in the State Supreme Court, Bronx County, to vacate his judgment of conviction under New York Criminal Procedure Law § 440.10 (the "440.10 Motion"), claiming ineffective assistance of counsel at trial. (See Petition at 3; State Aff., ¶ 9.) Adams claimed that his trial counsel was ineffective for failing to: (1) utilize a DNA expert; (2) utilize significant impeachment evidence; (3) identify offending portions of the record so that curative instructions could be given regarding an alleged hearsay declaration; (4) request curative instructions in response to the prosecutor's summations; and (5) object to alleged juror misconduct. (See Affidavit in Support of Motion to Vacate Judgment (undated) ("Aff. in Support of 440.10 Motion") at 1, attached as Ex. 6 to State Aff.; State Aff., ¶ 9.)
On July 23, 2001, the State court denied Adams's 440.10 Motion, holding that the "[c]omplained-of possible errors raised, where not already raised in appeal, do not provide any compelling basis to consider further relief." (Order dated July 23, 2001, attached as Ex. 7 to State Aff.) On September 3, 2001, Adams applied for leave to appeal the denial of his 440.10 Motion to the Appellate Division. (See Notice of Motion dated September 3, 2001, attached as Ex. 8 to State Aff.) This application was denied by the Appellate Division in a decision entered November 1, 2001. (See Certificate Denying Leave dated October 25, 2001 (the "Certificate Denying Leave"), attached as Ex. 9 to State Aff.)
On April 23, 2002, Adams filed the instant Petition, in which he raises four grounds for relief, claiming that his conviction was obtained by: (1) improper opening statements and allusion to hearsay; (2) improper closing remarks; (3) a coercive and prejudicial Allen Charge at trial; and (4) ineffective assistance of trial counsel. (See Petition at 5-6.) On February 26, 2003, the State moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Adams's Petition for failure to state a claim upon which relief can be granted, on the ground that Adams failed to file the Petition within the limitation period set forth in 28 U.S.C. § 2244(d)(1). (See Notice of Motion to Dismiss Pursuant to Fed.R.Civ.P. Rule 12(b)(6) and 28 U.S.C. § 2244(D)(1) dated February 26, 2003 (the "Motion To Dismiss").) In an Order dated March 27, 2003, the Court directed Adams to file a response to the State's Motion To Dismiss, and Adams accordingly filed a Traverse to District Attorneys Response and Opposition dated April 18, 2003 (the "Traverse").
The State's Motion To Dismiss Adams's Petition as untimely is governed by 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), and by the Federal Rules of Civil Procedure. The Federal Rules apply in the context of habeas actions to the extent that they are not inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts (the "Habeas Rules"). See Habeas Rule 11 ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.");_Fed.R.Civ.P. 81(a)(2) ("These rules are applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of the United States [or] the Rules Governing Section 2254 Cases . . . and has heretofore conformed to the practice of civil actions.").
Motions to dismiss habeas petitions on procedural grounds pursuant to Rule 12(b)(6) are not inconsistent with the Habeas Rules, given the wide discretion afforded district judges in the disposition of habeas petitions. See Purdy v. Bennett, 214 F. Supp.2d 348, 353 (S.D.N.Y. 2002) (rejecting a challenge to the applicability of Rule 12(b)(6) motions to dismiss in habeas corpus proceedings, and noting that the Habeas Rules "provide that, rather than require the filing of an Answer . . . the Court may `take such other action as the judge deems appropriate.'" (quoting Habeas Rule 4)); Ukawabutu v. Morton, 997 F. Supp. 605, 608 (D.N.J. 1998) ("The district court certainly has discretion to order or permit respondents, upon request, to file a motion to dismiss as one of the `other actions' which the court may allow, including the discretion to permit the filing of a motion to dismiss before a respondent files an answer." (quoting Habeas Rule 4)).
Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Lerman v. Bd. of Elections, 232 F.3d 135, 140 (2d Cir. 2000). In considering the State's Motion To Dismiss, the Court must accept all wellpleaded factual allegations in the Petition as true and draw all reasonable inferences in favor of the petitioner. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); McGinty v. State of New York, 193 F.3d 64, 68 (2d Cir. 1999). The Court must "confine its consideration `to facts stated on the face of the [Petition], in documents appended to the [Petition] or incorporated in the [Petition] by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); accord Mack v. Artuz, No. 01 Civ. 11832, 2002 WL ...