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July 29, 2003


The opinion of the court was delivered by: VICTOR Marrero, District Judge.


Pro se petitioner Nat Williams ("Williams"), currently incarcerated at the Arthur Kill Correctional Facility ("Arthur Kill") in Staten Island, New York, commenced this action against Dennis Breslin, Superintendent of Arthur Kill (the "State"), seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Williams alleges denial of various of his rights under the United States Constitution in connection with his conviction for assault in the first degree in violation of New York Penal Law § 120.10(1). The State now moves to dismiss Williams's petition as untimely pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 2244(d)(1). For the reasons discussed below, the State's motion is GRANTED.


On August 19, 1996, Williams and James Lucas ("Lucas") had an altercation involving a machete. In the course of the incident, Lucas sustained physical injury. (See New York Supreme Court Brief for Defendant-Appellant dated February, 1999 ("Williams's Appellate Br.") at 9.) As a result of the incident, Williams was charged with attempted murder in the second degree, assault in the first degree, and assault in the second degree. Williams asserted a justification defense in response to the charges, but was convicted after a jury trial in the Supreme Court of New York, Bronx County, of assault in the first degree. (See Affidavit In Support Of Motion To Dismiss Petition For Habeas Corpus dated February 13, 2003 (the "State's Affidavit") at 4.)*fn1

On November 18, 1997, Williams filed timely notice of appeal of his conviction. In February 1999, through assigned appellate counsel, Williams filed an appellate brief with the Appellate Division of the New York State Supreme Court, First Department (the "Appellate Division"), raising a due process claim. (See Williams's Appellate Br. at 2) In the brief, Williams argued that the trial court deprived him of his due process right to a fair trial by including a "duty to retreat" instruction in its justification charge when there was no question that the incident occurred in Williams's dwelling. (Williams's Appellate Br. at 19.) Williams's conviction was unanimously upheld by the Appellate Division on June 15, 1999. See People v. Williams, 262 A.D.2d 138, 690 N.Y.S.2d 447, 447 (App. Div. 1st Dep't 1999). The New York Court of Appeals, on September 2, 1999, denied Williams's application for leave to appeal. See People v. Williams, 93 N.Y.2d 1046, 697 N.Y.S.2d 878, 720 N.E.2d 98, 98 (1999).

On January 31, 2001, Williams filed an application for a writ of error coram nobis with the Appellate Division, claiming that his appointed appellate counsel was ineffective for failing to raise the following claims: (1) the prosecution failed to prove its case beyond a reasonable doubt; (2) the State trial court used coercive tactics to force the jury foreperson to remain on the jury despite her requests for permission to be excused because of illness; (3) Williams was prejudiced by the portion of the prosecution's summation that referred to Williams's intentions with regards to the altercation; and (4) Williams's trial counsel was ineffective. (See Notice of Motion for Writ of Error Coram Nobis dated January 20, 2001 (attached as Ex. 4 to the State's Affidavit).) Williams's application for writ of error coram nobis was denied on November 1, 2001. See People v. Williams, 287 A.D.2d 947, 734 N.Y.S.2d 528, 528 (App. Div. 1st Dep't 2001).

While his application for writ of error coram nobis was still pending, Williams filed, on July 12, 2001, a motion to vacate his conviction, under New York Criminal Procedure Law § 440.10 claiming ten separate bases for relief. (See Notice Of Motion To Vacate Judgment dated July 12, 2001 (attached as Ex. 6 to the State's Affidavit).) On October 10, 2001, the New York State Supreme Court, Bronx County, denied all ten bases for relief as procedurally barred. People v. Williams, No. 6139/96, slip op. (N.Y.Sup.Ct. Oct. 10, 2001) (attached as Ex. 8 to the State's Affidavit). On April 16, 2002, the Appellate Division denied leave to appeal. People v. Williams, No. M-1 011, slip op. (App. Div. 1st Dep't Apr. 16, 2002) (attached as Ex. 9 to the State's Affidavit).

On December 26, 2002, Williams filed a Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody dated September 9, 2002 (the "Petition"), raising the following claims: (1) the evidence before the grand jury was legally insufficient to establish the charge of assault in the first degree; (2) the State failed to disprove his justification defense beyond a reasonable doubt; (3) Williams was denied a fair trial when the prosecutor introduced fraudulent pictures into evidence; (4) the jury charge on justification was deficient; and (5) Williams's appellate counsel was ineffective. The State now moves, pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 2244(d)(1), to dismiss Williams's Petition as untimely.



The State's motion to dismiss 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 of Civil Procedure 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.").

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 well-pleaded factual allegations in the Petition as true and draws 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 ...

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