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February 25, 2004.

ELVIN LEBRON, Petitioner, -against- THOMAS C. SANDERS, Respondent

The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge


Petitioner Elvin Lebron ("Petitioner") brings the current petitioners pro se pursuant to 28 U.S.C. § 2244, claiming (1) his plea of guilty was not made voluntarily with understanding of the nature of the charge and consequences of his plea; (2) the evidence used to convict him was obtained pursuant to an unconstitutional search and seizure; and (3) his trial and appellate counsel were ineffective. Respondent Thomas Sanders ("Respondent") moves to dismiss the petition on the grounds that it is time-barred under the Anti-Terrorism Effective Death Penalty Act (AEDPA). Because Petitioner's filings for state post-conviction relief have effectively tolled the statute of limitations, Petitioner's petition is not time-barred and therefore Respondent's motion is denied.


  On May 24, 1994, Petitioner, then nineteen years old, pled guilty in New York County Court to Manslaughter in the First Degree, Robbery in the First Degree, and third degree gun possession. Petitioner was charged in two indictments, stemming from incidents on the Page 2 footbridge between Ward's Island and Manhattan Island and on Ward's Island. (Affirmation Supp. Mot. Dismiss at ¶ 3, 4.) The first incident was an attempted robbery on September 12, 1993, during which Petitioner's co-defendant fatally shot the victim. (Id. at ¶ 3.) The second incident was a robbery, which occurred on September 20, 1993. (Id. at 4.) The victim of the second robbery identified Petitioner's photograph and identified petitioner in a live lineup. (Id. at ¶ 6.) A witness to the first incident identified Petitioner in a post-arrest lineup as a participant in the attempted robbery. (Id.) Petitioner's co-defendant in both incidents was arrested immediately after the second robbery. (Id. at ¶ 4.)

  Petitioner unsuccessfully appealed his conviction to the Appellate Division First Department and the New York Court of Appeals. His petition for a writ of certiorari was denied by the Supreme Count of the United States on December 15, 1997. Lebron v. New York, 522 U.S. 1032, 118 S.Ct. 635 (1997) (mem.). His subsequent motions attacking his conviction-together with a calculation of time not tolled-are listed in a chart attached as an appendix to this opinion.

  On November 7, 2001, Petitioner signed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The clerk's office of the Southern District of New York received the petition on December 26, 2001.


  The Anti-Terrorism and Effective Death Penalty Act (AEDPA) established a statute of limitations for petitioners in state custody petitioning for federal habeas corpus relief. According to 28 U.S.C. § 2244, "A 1-year period of limitation shall apply to an application for a writ of Page 3 habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation 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.A. § 2244(d)(1) (Supp. 2003). It is uncontested that the date Petitioner's judgment became final was December 15, 1997, the date when the Supreme Court of the United States denied Petitioner a writ of certiorari. Lebron v. New York, 522 U.S. 1032, 118 S.Ct. 635 (1997) (mem.); see 28 U.S.C.A. § 2244(d)(1) (Supp. 2003); Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (finding petitioner's judgment of conviction became final when his time to seek review by the U.S. Supreme Court by writ of certiorari expired).

  Although the petition was received by the Clerk's office in December 2001, it is also uncontested that the effective date of the filing of the petition is November 7, 2001, the date Petitioner signed the petition. See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (holding that petitions of pro se incarcerated litigants are deemed filed when delivered to prison officials for mailing). Thus, because nearly four years elapsed between the time Petitioner's conviction became final (December 15, 1997) and the date he filed his petition for a writ of habeas corpus in federal court (November 7, 2001), on its face, the petition was filed well beyond the one-year statute of limitations period established by AEDPA.

  The one-year statute of limitations is tolled, however, for, "[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 . . ." 28 U.S.C.A. § 2244(d)(2) (Supp. 2003). Accordingly, the timeliness of the instant petition depends on which of Petitioner's post-conviction motions in Page 4 state court tolled the one-year statute of limitations and for how long those motions tolled the statute of limitations.

 1. C.P.L.R. Art. 78 and C.P.L.R. § 1102(b) motions

  Petitioner asserts that all his numerous New York C.P.L.R. Article 78 and C.P.L.R. § 1102(b) motions toll the statute of limitations. In Hodge v. Greiner, the Second Circuit held that Article 78 proceedings to obtain documents helpful to the petitioner's motions were not "applications for State post-conviction or other collateral review" of his case under 28 U.S.C. § 2244(d)(2), thus they did not toll the statute of limitations established by AEDPA. Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001). Because the Section 1102(b)*fn1 and Article 78*fn2 motions filed by Petitioner did not challenge his conviction, they did not toll the statute of limitations under 28 U.S.C. § 2244(d)(2).

 2. Article 440.10 Motion

  On September 3, 1998, Petitioner filed a motion pursuant to New York Criminal Procedure Law Article 440.10 to vacate his conviction based on an improperly certified ballistics report presented to the Grand Jury and hearsay before the Grand Jury. The New York State Supreme Court denied the motion on February 10, 1999. Nearly two months later, on April 13, 1999, Petitioner sought leave to appeal the denial of his Article 440.10 motion. This leave to appeal was denied on July 1, 1999 by the Appellate Division First Department. Petitioner appealed, and the Court of Appeals dismissed the appeal of the denial of ...

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