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EDWARDS v. WARDEN OF THE BERKS COUNTY PRISON

United States District Court, E.D. New York


January 8, 2004.

ALEXIS MILTON EDWARDS, Petitioner, — against — WARDEN OF THE BERKS COUNTY PRISON, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER
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. Page 2

  BACKGROUND*fn1

  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 On July 27, 2000, Edwards's Page 3 parole was revoked as a result of the parole violation.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 Page 4 he is innocent. As mentioned earlier, Edwards is currently in immigration custody, and he is subject to a final order of removal.*fn2

  DISCUSSION

  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, 1997.

  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 Page 5 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.

  CONCLUSION

  For the reasons set forth above, the motion to dismiss the petition as untimely is granted, and the petition is dismissed. No certificate of appealability shall issue.

  So Ordered.


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