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YEKIMOFF v. NEW YORK STATE DIVISION OF PAROLE

July 8, 2004.

SERGEY YEKIMOFF, Petitioner,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent.



The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

REPORT AND RECOMMENDATION TO THE HONORABLE BARBARA S. JONES, District Judge.
Pro se petitioner Sergey Yekimoff ("Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a guilty plea, Petitioner was convicted of one count of grand larceny in the second degree. (See Petition for Writ of Habeas Corpus, filed Sept. 9, 2002*fn1 ("Pet."), at 1.) He was sentenced to six months in prison and five years probation. (See id.) On October 12, 1999, the date of sentencing, Petitioner was released from prison for time served, and began his probationary period. (See id.; Affidavit in Support of Motion to Vacate, dated July 16, 2001, Pet. Exh. at 22.)*fn2 On September 4, 2001, he was re-sentenced to prison for violating the terms of his probation. (See Pet. at 1.) Petitioner was again released from prison on July 1, 2002. (See id. at 3.)

  In his habeas petition, Petitioner challenged both his conviction and subsequent parole proceedings. Petitioner's claim regarding parole, however, is no longer before this Court, as that claim has been dismissed as moot.*fn3 Thus, of the claims asserted in the petition, only those attacking Petitioner's underlying conviction remain to be decided. Respondent New York State Division of Parole ("Respondent") argues that those claims are time-barred under the governing statute of limitations. For the reasons set forth below, I recommend that the claims challenging Petitioner's conviction be dismissed as untimely.

  FACTUAL BACKGROUND

  On September 28, 1999, Petitioner pleaded guilty to grand larceny in the second degree, pursuant to New York Penal Law § 155.40(1), for defrauding an elderly acquaintance of approximately $180,000.00. (See A.G. Resp., Ex. B at 2, Ex. C at 4.)*fn4 On October 12, 1999, Petitioner was sentenced to six months incarceration, followed by five years probation. (See id., Ex. C at 2-5, Ex. K at 1.) In addition, Petitioner entered into a restitution agreement and signed a confession of judgment. (See id., Ex. C at 2 & 6, Ex E.) The agreement called for Petitioner to make a payment of $10,000.00 at the time of sentencing, and $500.00 per month thereafter. (See id., Ex. C at 2-3 & 6, Ex. E.)

  Petitioner was released on his sentencing date based on time served, and began the required period of probation. He did not, however, comply with the terms of his probation, in that, among other things, he left the country and lived in Europe and Canada for a period of time. (See A.G. Resp., Ex. R at 3, Ex. S at 2-3.) As a result, he was arrested upon his return to his residence in New Hampshire. (See id., Ex. F, Ex. H at 2-3, Ex. S at 2-3.) Because Petitioner did not comply with the terms of his probation, he was re-sentenced, on September 4, 2001, to an indeterminate sentence of one to three years incarceration, nunc pro tunc as of December 14, 2000, with credit given for the six months he served in prison based on his guilty plea. (See id., Ex. L; Pet. at 1.) Petitioner was released from prison on July 1, 2002 (see Pet. at 3), and was then discharged from parole on July 1, 2003, for having served his maximum sentence. See Yekimoff v. New York State Div. of Parole, No. 02 Civ. 8710 (BSJ), 2003 WL 22305171, at * 1 (S.D.N.Y. Oct. 8, 2003).

  PROCEDURAL HISTORY

  Petitioner did not take a direct appeal from his conviction for larceny, allegedly because his attorney erroneously told him that, by pleading guilty, he had waived his right to appeal. (See Pet. at 1; Affidavit in Support of Motion to Vacate, Pet. Exh. at 22.) Presumably upon learning that, in fact, he had not waived his right to appeal, Petitioner sought leave to extend the time to appeal. (See Memorandum of Law in Support of Habeas Petition, filed Apr. 2, 2003 ("4/2/03 Pet. Mem."), at 3.) That request was denied by the Appellate Division, First Department, on May 29, 2001. (See id. at 5.) Thereafter, Petitioner undertook several unsuccessful collateral challenges to his conviction and parole status, followed by the filing of the instant habeas petition on September 9, 2002.

  Through the petition, Petitioner asserts the following claims challenging his conviction: (1) that he was denied the right to proceed pro se during the underlying criminal proceedings; (2) that his indictment was constitutionally defective under the Fifth, Sixth, and Fourteenth Amendments; (3) that he received ineffective assistance of trial counsel with respect to proceedings leading up to his guilty plea; (4) that his due process rights were violated because his plea waiver was "unintelligent" and his plea was "constitutionally invalid"; and (5) that he received ineffective assistance of appellate counsel when his attorney failed to file a requested appeal and incorrectly informed Petitioner that he had waived his right to appeal. (See Pet. at 3-6.)

  DISCUSSION

  Respondent argues that all of Petitioner's remaining claims are barred by the applicable statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d) ("AEDPA"). (See Memorandum in Support of Motion to Dismiss, filed Mar. 24, 2003 ("D.A. Mem.").)*fn5 AEDPA provides that a writ of habeas corpus must be filed within one year of a certain date, in this case the later of the date upon which Petitioner's conviction became final, 28 U.S.C. § 2244(d)(1)(A), or the date upon which the factual predicate to the claim could have been discovered through due diligence, 28 U.S.C. § 2244(d)(1)(D). Respondent asserts that Section 2244(d)(1)(A) is the applicable section, meaning that Petitioner had until November 12, 2000, one year after the date upon which Petitioner's conviction became final, to file his petition. (See D.A. Mem. at 2-3.) As the petition was not filed until September 9, 2002, Respondent argues that the petition is time-barred. (See id. at 2-4.) Petitioner asserts three arguments in response, which will be addressed here in turn.

  I. RELEVANCE OF PETITIONER'S RE-SENTENCING TO THE STATUTE OF LIMITATIONS CALCULATION

  Petitioner's first two arguments offer two different rationales as to why the statutory limitations period should not run from November 12, 1999, when his conviction became final, but rather from October 5, 2001, when his re-sentencing allegedly became final. (See 4/2/03 Pet. Mem. at 2-3.) If, as Petitioner contends, the October 2001 date were the correct date from which to calculate the limitations period, then his petition would be timely. Neither of Petitioner's arguments, however, are persuasive.

  A. Petitioner's Claims Do Not Arise From the Re-Sentencing.

  First, Petitioner relies on Hepburn v. Moore, 215 F.3d 1208 (11th Cir. 2000), in which the Eleventh Circuit held that, in certain cases, the limitations period should run from the date a petitioner's re-sentencing order becomes final. In Hepburn, however, the petitioner's claims related directly to the re-sentencing proceeding (specifically, the petitioner claimed a denial of counsel at that proceeding), and did not arise from the original judgment. Hepburn, therefore, stands for the proposition that "AEDPA cannot be interpreted to ...


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