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January 20, 2004.

DWAYNE L. BETHUNE, Petitioner, -vs- Superintendent, Bare Hill Correctional Facility, JOHN H. SABOURIN, and Commissioner of Dept. of Corr. Services GLENN S. GOORD, Respondents

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Petitioner Dwayne L. Bethune ("Bethune"), filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court, New York. For the reasons set forth below, Bethune's § 2254 petition is dismissed.


  During the week of April 15, 1995, Bethune stole a Chevrolet Cavalier from an Albany rental car company and drove to the town of Geneva in Ontario County to visit his girlfriend. Bethune abandoned the Cavalier and stole another car, a Chevrolet Z28 Camaro, from a Geneva automobile dealer. He also burglarized the dealer's office and stole a cell phone, computer equipment, and other items.

  Bethune telephoned the car dealership the next day and, calling himself a "Good Samaritan," informed the owner that he had discovered some of his property and offered to return it to him in a grocery store parking lot in Geneva. Accompanied by a sheriffs deputy, the owner met Bethune at the agreed-upon location. When Bethune displayed of the stolen property, he was arrested. Bethune was searched incident to arrest, and the keys to the stolen Cavalier were found in his Page 2 pocket. At the police station, a Sheriff's investigator conducted a tape-recorded interview with Bethune in which he gave numerous, constantly changing explanations of how he happened to come by the stolen items, e.g., that he had found the property at a basketball court in Geneva and wanted to return it to its rightful owner. This tape recording eventually was played for the jury at trial. Bethune was indicted on charges of criminal possession of stolen property, burglary, and larceny. He was convicted on all counts and sentenced as a predicate felon to an aggregate term of 8 to 16 years.

  Represented by counsel, Bethune appealed to the Appellate Division, Fourth Department. He also filed a supplemental pro se brief and supporting papers. The Fourth Department affirmed his conviction, and leave to appeal was denied. This federal habeas corpus petition followed.



  Respondent challenges Bethune's petition as untimely. For the reasons set forth below, I agree that Bethune's petition was not timely filed.

  The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") imposes a one-year statute of limitations on petitioners seeking to challenge their convictions in federal court. In most cases, including this one, the one-year period runs from the date the state conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The state conviction becomes final for AEDPA purposes when the petitioner's time to seek direct review in the United States Supreme Court by writ of certiorari expires. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). In the instant case, that period expired 90 days after the New York Court of Appeals denied leave to appeal. Pratt v. Greiner, 306 F.3d 1190, 1195 n. 1 (2d Cir. 2002). Therefore, Bethune's judgment of conviction became final on Page 3 February 18, 1999, 90 days from the November 20, 1998, denial of leave to appeal the Appellate Division's affirmance of Bethune's conviction. Bethune's one-year limitations period thus would have expired on February 18, 2000.

  Properly filed applications for state post-conviction relief toll the limitations period, but only so long as they remain pending. See 28 U.S. § 2244(d)(2). Bethune filed a petition for a writ of habeas corpus in state court pursuant to C.P.L.R. Article 70 on June 24, 1999. It was denied by the Franklin County Supreme Court on October 15, 1999. The statute of limitations was tolled for 114 days while this state habeas petition was pending.

  Bethune then sought a writ of error coram nobis on December 8, 1999, which was denied by the Appellate Division on February 16, 2000. This tolled the limitations period for an additional 71 days. At the time Bethune's coram nobis application was in state court, New York's procedural rules provided that the Court of Appeals could not review a denial by the Appellate Division of such an application. Thus, the tolling period ended with the Appellate Division's denial, even if Bethune were to file an application for leave to appeal in the Court of Appeals. See Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001).

  Bethune next collaterally attacked his conviction through a C.P.L. § 440.10 motion in Ontario County Court on September 6, 2000, which was denied on November 20, 2000. With respect to a C.P.L. § 440.10 motion, the limitations period is tolled from the time it is filed in the trial court until the Appellate Division decides the motion or denies an application for leave to appeal from the denial of the motion. A denial by the Appellate Division of a C.P.L. § 440.10 motion is not reviewable by ...

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