The opinion of the court was delivered by: JOHN GLEESON, District Judge
Alexis Milton Edwards petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Respondent has moved to dismiss the petition on the
ground that it was not filed within the applicable one-year limitations
period. For the reasons set forth below, the motion is granted.
On February 8, 1992, Edwards, acting in concert with Cynthia Walker,
sold crack cocaine to two undercover Suffolk County Police Detectives in
exchange for forty dollars. They were subsequently arrested, and Edwards
was charged with criminal sale of a controlled substance in the third
degree and criminal possession of a controlled substance in the third
degree (the "First Indictment"). On June 23, 1992, he pled guilty to
attempted criminal sale of a controlled substance in the third degree. On
October 26, 1992, he was sentenced to a term of imprisonment of 45 days
and to five years of probation.
Edwards was indicted on new charges on August 7, 1992, for the
following crimes: criminal sale of a controlled substance in the first
degree, criminal sale of a controlled substance in the second degree,
criminal possession of a controlled substance in the second degree,
criminal sale of a controlled substance in the third degree and criminal
possession of a controlled substance in the third degree (the "Second
Indictment"). On December 9, 1992, Edwards pled guilty to criminal sale
of a controlled substance in the second degree, in full satisfaction of
the Second Indictment. Based on this plea, the state court sentenced
Edwards to the bargained-for prison term of five years to life.
On June 11, 1993, Edwards was discharged early from probation under the
First Indictment. On August 11, 1997, after serving roughly five years in
prison based on the guilty plea following the Second Indictment, Edwards
was paroled into the custody of the Immigration and Naturalization
Service ("INS"), which released him on a bond. On July 27, 2000,
parole was revoked as a result of the parole violation. On October 18,
2000, he was again paroled to the INS, in whose custody he remains to
this day. See Edwards v. INS, No. 02-CV-3309 (JG), 2003 WL 1786483
(E.D.N.Y. Mar. 28, 2003).
On or about December 24, 2002, Edwards filed a motion in state court to
vacate his conviction on the First Indictment pursuant to N.Y. Crim.
Proc. Law § 440.10. He argued that: (1) his rights under the Vienna
Convention were violated because he was not given an opportunity to speak
with a representative of the Trinidad Consulate; (2) a laboratory report
used by the People during presentment to the grand jury was inadmissable
hearsay; (3) he did not know all the direct consequences of his guilty
plea; (4) his guilty plea is invalid because it was not entered into
knowingly and freely; and (5) there is insufficient proof that he sold
drugs. In a written decision, the state court denied Edwards's claims.
See People v. Edwards, Indict. No. 1254B-92, slip op. (N.Y. County Ct,
Suffolk County Feb. 4, 2003) (G. Webber, J.C.C.). Edwards's application
for leave to appeal was denied by the Appellate Division, Second
Department, on May 9, 2003. See People v. Edwards, Indict. No. 1254-92,
slip op. (N.Y. App. Div., 2d Dep't May 9, 2003) (F. Santucci, J.).
In the instant petition, dated June 5, 2003, Edwards challenges only
the conviction based on the First Indictment, a conviction that has
formed the basis of removal proceedings against him. He raises the
following claims: (1) that his trial counsel was ineffective, (2) that
there was no factual basis for his guilty plea because he is innocent and
that his trial counsel misadvised him to plead guilty; (3) that his
Vienna Convention rights were violated; and (4) that
he is innocent. As mentioned earlier, Edwards is currently in immigration
custody, and he is subject to a final order of removal.*fn2
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
which became effective on April 24, 1996, created a one-year statute of
limitations for petitioners to file for a writ of habeas corpus.
28 U.S.C. § 2244(d)(1). With exceptions not relevant here, the
statute provides that the one-year period "shall run from . . . the date
on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review."
28 U.S.C. § 2244(d)(1)(A). However, "[prisoners] . . . whose
convictions became final prior to the AEDPA's effective date of April
24, 1996, have a one-year grace period in which to file their habeas
corpus petitions, or until April 24, 1997." Smith v. McGinnis, 208 F.3d 13,
15 (2d Cir. 2000).
The conviction that Edwards challenges here became final prior to
AEDPA's effective date. See N.Y. Crim. Proc. Law § 460.10. Thus, his
petition is untimely as he filed it in 2003 well after April 24,
AEDPA provides that "[t]he 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)(2). However, properly filed applications for
state post-conviction relief only toll the
limitations period; they do not reset the period. McGinnis, 208 F.3d at
17. Because the one-year period had fully expired in 1997, the fact that
Edwards filed a collateral attack on his conviction in 2002 could not
revive the limitation period under § 2244(d)(2). Thus, Edwards's
petition is untimely.
Edwards's arguments in response to the motion are frivolous. For
example, he asserts that he was actually innocent, but I have reviewed
the minutes of the guilty plea on June 23, 1992, and Edwards admitted his
guilt under oath. In any event, Edwards suggests no reason why he could
not have raised the claims in his petition in a timely fashion.
For the reasons set forth above, the motion to dismiss the petition as
untimely is granted, and the petition is dismissed. No ...