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.
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
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
The State moved for dismissal of Williams' petition on
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,
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).
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).
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.