The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
REVISED OPINION AND ORDER
Petitioner Elvin Lebron ("Petitioner") brings the current petition
pro se pursuant to 28 U.S.C. § 2254, 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
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,
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
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
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. Greinen, 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).
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 ...