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United States District Court, S.D. New York

February 11, 2004.

ANDREW WILLIAMS, Petitioner, -against- ANDREW BRESLIN, Superintendent, Respondent

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2


Petitioner pro se Andrew Williams ("Williams"), currently incarcerated at Arthur Kill Corrections Facility, Staten Island, New York, seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for one count of Robbery in the First Degree (New York Penal Law § 160.15(4) and one count of Robbery in the Second Degree (New York Penal Law § 160.10(1). The respondent Andrew Breslin, Superintendent (the "State") has moved to dismiss the petition, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that it is time-barred under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). For the reasons set forth below, respondent's motion is granted and the petition is dismissed.

Prior Proceedings

  A. State Court Proceedings

  Following a jury trial, a judgment of conviction was entered on July 23, 1996, by Judge Dorothy Cropper of New York State Supreme Court, New York County, for one count of Robbery in the First Degree and one count of Robbery in the Second Degree. Williams was sentenced to concurrent prison terms of from ten to twenty years on the First Degree count, and from one-half to Page 3 fifteen years on the Second Degree count. The Appellate Division affirmed the conviction on direct appeal on July 8, 1999, People v. Williams, 263 A.D.2d 369 (1st Dept. 1999), and Williams' application for leave to appeal to the New York Court of Appeals was denied on November 3, 1999. People v. Williams, 94 N.Y.2d 831 (1999).

  In an application dated September 4, 2000, Williams filed a writ of error coram nobis in the Appellate Division alleging that his appellate counsel was ineffective for failing to raise a claim on direct appeal of ineffective trial counsel. This motion was denied on October 30, 2001. People v. Williams, 287 A.D.2d 947, 734 N.Y.S.2d 528 (2001).

  B. Habeas Proceedings

  Williams, pro se, signed his petition for a writ of habeas corpus on June 4, 2002 and delivered it to the prison authorities to be mailed to the Court on June 5, 2002. It was received by the Pro Se office on June 10, 2002 and filed on March 17, 2003. Williams claimed he was denied effective assistance of counsel at the trial and appellate levels, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, § 6 of the New York State Constitution.

  The State moved for dismissal of Williams' petition on Page 4 October 23, 2003, arguing in part that his petition is time-barred by the one-year limitation period set forth by AEDPA. 28 U.S.C. § 2244(d). The matter was marked fully submitted on November 18, 2003.


  Under 28 U.S.C. § 2244, as amended by AEDPA, an inmate may file a Section 2254 habeas corpus petition within one year of the date that his conviction becomes final or the facts giving rise to his claim could have been discovered. 28 U.S.C. § 2244(d)(1). The Second Circuit has held that for purposes of 28 U.S.C. § 2244, a state conviction becomes final when the time to seek certiorari to the United States Supreme Court has expired, which is 90 days after the date direct review of the case has been completed by the highest court in the relevant state. Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001).

  The one-year limitations period under AEDPA is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244 (d)(2). If utilized, this tolling provision "excludes time during which properly filed state relief applications are pending," but it does not restart the statute of limitations clock. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Page 5

  Applying these rules to the facts of this case, Williams' petition is time-barred. Williams' conviction became final on February 1, 2000, the last date upon which he could have sought certiorari to the United States Supreme Court. 215 days later, on September 4, 2000, Williams filed his writ of error coram nobis application, claiming ineffective assistance of appellate counsel, at which point the limitations period was tolled. The limitations clock began running again on October 30, 2001, when that application was denied. At that point, Williams had 150 days left to file his federal habeas petition. However, Williams' instant petition was only signed on June 4, 2002 and delivered to the prison authorities on June 5, 2002 — 218 days later.*fn1 Thus, even after factoring in the tolling provision, Williams fails to meet the statutory limitations period established under AEDPA.

  The Second Circuit has held that the one-year limitations period is subject to equitable tolling upon a petitioner's showing that extraordinary or unusual circumstances prevented him from filing his petition on time. Smith, 208 F.3d at 17. To succeed, the petitioner must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). Page 6

  In the instant petition, Williams admits that the petition was filed in excess of the one year statute of limitations under 28 U.S.C. § 2244 (d)(1) and provides no reason for his failure to comply with the filing deadline other than the pendency of his coram nobis application. (Pet. ¶ 14.) This pending application is already taken into account by 28 U.S.C. § 2244(d)(2)'s tolling provision, and Williams presents no further cause for extraordinary relief.


  For the foregoing reasons, the State's motion to dismiss Williams' petition for a writ of habeas corpus is granted. Accordingly, Williams' petition is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, HI-113 (2d Cir. 2000).

  It is so ordered.

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