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September 1, 2004.

ELLIS EILAND, Petitioner,
JAMES T. CONWAY, Warden of Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Ellis Eiland, a New York State prisoner, brings these petitions for a writ of habeas corpus.*fn1 Unlike most habeas petitions, Eiland's complaints reveal that his rights were likely violated. However, a combination of procedural obstacles to obtaining habeas relief requires dismissal of his petitions.


  On February 9, 1999, Eiland pled guilty in New York County Supreme Court to attempted burglary in the second degree. (Declaration of Willa J. Bernstein, Ex. B.) On March 2, 1999, he was sentenced to a three-year determinate sentence as a second felony offender. (Bernstein Decl., Ex. C.) The offense to which Eiland pled guilty apparently took place on November 7, 1998, and, for crimes committed after September 1, 1998, New York law mandates that a determinate sentence of this type must also carry a five-year term of post-release supervision, a parole-like status comparable to the federal status of supervised release. N.Y. Penal Law §§ 70.04, 70.06; People v. Bell, 305 A.D.2d 694 (2d Dep't 2003).

  Eiland served his prison term, but has been less than successful in complying with the terms of his supervised release. He has been returned to prison several times for violations of supervision, most recently on September 30, 2002, and he remains incarcerated today. (The record does not reveal the nature of the conduct that violated the terms of his release.) He complains, however, that his plea was involuntary and his present detention illegal because he was never informed, either in connection with his guilty plea or at his sentence or by the formal sentence and commitment order filed in his case, that any such supervised release term was part of his sentence. (Bernstein Decl., Ex. A.)

  Putting aside for the moment the legal effect, if any, of this failure, or the legal remedy, if any, to which Eiland might be entitled, his complaint appears factually well founded. The transcript of his somewhat cursory guilty plea allocution (Bernstein Decl., Ex. B) discloses that Eiland was advised that he was being promised a three-year sentence in exchange for his guilty plea, but does not contain any advice that his liberty would also be significantly restricted for a further five years beyond his term of imprisonment. The transcript of his sentencing (Bernstein Decl., Ex. C) shows the judge sentencing him to three years in prison, but not to any term of post-release supervision. The Sentence and Commitment Order (attached as an exhibit to Eiland's "Traverse") states that Eiland, having been convicted of attempted burglary in the second degree, is sentenced to a determinate term of three years as a second violent felony offender, and to a "mandatory surcharge and crime victim assistance fee in the amount of $155." However, the box labeled "a sentence of parole supervision is directed by the court" is not checked, and there is no other reference to any term of post-release supervision or any other penalty beyond the three-year sentence and fine.

  Eiland claims, and the State does not dispute, that he was not informed of this required aspect of his sentence by his attorney, or indeed by any person, at any time during the prosecution of his case. If this is true, it is easy to imagine his chagrin when he "was informed of [the condition of post-release supervision] for the first time upon the conditional release elligibillity [sic] about 3.31.2001." (Pet. ¶ 14.) Eiland proceeded to protest the imposition of post-release supervision to various courts. Principally, he has argued (i) that his subsequent incarcerations for violating his post-release supervision were simply illegal because he was never in fact sentenced to such a term of supervision, and (ii) that his guilty plea was involuntary because he waived his right to trial in exchange for what he was told was a flat term of three years of imprisonment, when in fact he was facing the possibility of longer imprisonment in connection with the potential violation of additional restrictions on his liberty of which he had not been advised.

  These are hardly insubstantial claims, and it is difficult not to conclude that Eiland was treated unfairly. The record discloses nothing of the strength of the original case against Eiland, or of what defenses he might have had to the charges against him. At a minimum, he had made some sort of legal objection to the prosecution, as it appears on the face of the guilty plea transcript that Eiland had made a motion to dismiss the indictment, which he withdrew as part of the plea bargain. (Bernstein Decl., Ex. B.) Of course, in connection with his plea, Eiland admitted that he was in fact guilty of a crime, but until his plea was entered he had the constitutional right to put the State to its proof. He surrendered that right for a promise of a three-year determinate prison term, not for a promise of three years of jail plus five years of revocable parole supervision that could lead to his re-imprisonment for violations that might include conduct that did not violate any criminal law. Even at the time of his sentencing, moreover, he was not advised that such supervision was a part of his sentence, either orally during the sentencing proceeding or in writing as part of the judgment in his case. (Bernstein Decl., Ex. C; Petitioner's "Traverse.") The State does not contend that Eiland was ever advised of the additional term of supervision, whether by his lawyer, the prosecutor, or the judge; nor does the State contest Eiland's assertion that he first heard of this aspect of what the State contends was his sentence only after he had completed two years of his prison term and was preparing for possible release.


  Where a habeas petitioner raises patently frivolous claims, there is no need to analyze the often complex procedural barriers to habeas relief; the petition can simply be denied on its merits. Ironically, the barriers set up to spare the courts from meritless petitions have their greatest impact where the petitioner's claims have potential merit. Thus, before proceeding to address whether Eiland's legitimate sense of grievance at his treatment states a claim for legal relief, we are required to detour through some difficult procedural technicalities. I. Timeliness

  The State begins its defense of Eiland's current incarceration by arguing that his petition is untimely. (Resp. Mem. 6-16.) Under 28 U.S.C. § 2244(d), a federal habeas petition is time-barred unless it is brought within one year of (so far as is relevant here) either "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," id. § 2244(d)(1)(A), or "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," id. § 2244(d)(1)(D). Since Eiland did not pursue a direct appeal, his conviction became final on April 1, 1999, when the thirty-day period for appeal expired. However, Eiland had no reason to complain of his sentence until he learned of its post-release supervision component, which was described neither at his sentencing nor in the written judgment of conviction. The State offers no reason to disbelieve Eiland's claim that he first learned of this condition on or about March 31, 2001, and makes its attack on the timeliness of his petition "[a]ssuming for the sake of argument" that Eiland's statement is correct. (Resp. Mem. 10). Under these circumstances, the Court will necessarily treat as undisputed that Eiland could not have known, and in fact did not know, of the sentence provision to which he objects, and thus could not possibly have discovered the "factual predicate of [his] claim" until at least March 31, 2001. The time for him to file a federal habeas petition thus began to run on that date.*fn2 Eiland's initial habeas petition was delivered to prison officials for mailing on January 10, 2003, and received in this Court's pro se office on January 15, 2003. Although it was not formally filed until June 10, 2003, the date the petition was delivered for mailing to prison authorities counts as the date of filing for habeas purposes. Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001).*fn3 Thus, unless the running of the limitations period was tolled for some reason, the petition was not filed until more than nine months after the one-year limitations period had run.

  The statute 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. § 2244(d)(2). Determining the periods during which the limitations period was tolled in this case presents additional difficulties.

  First, Eiland claims that he filed a petition for post conviction relief in Bronx Supreme Court in 2001 (the "Bronx Petition"). Although Eiland's petition at one point indicates that the dates during which the Bronx Petition was pending, and the outcome of the Bronx Petition, are "unknown" to petitioner (Pet. ¶ 12(a)(5), (6)), Eiland at another point approximates that the Bronx Petition was pending "about 7.1.01 to 11.1.01." (Id. ¶ 14.) The record concerning the Bronx Petition is sparse. Eiland submits no documentation regarding the alleged Bronx Petition, enclosing copies neither of the petition, nor of any resulting court decision. The State, for its part, asserts that despite a search of court records, it has been unable to find any record of such a petition. (Resp. Mem. 9 n. 6, 11.) At best, taking petitioner at his word, the Bronx Petition would have tolled the petition for four months.*fn4 Put another way, assuming for the moment that this undocumented petition was actually filed when Eiland says it was, three months of the twelve-month limitation period were consumed before the Bronx Petition was filed, and nine months remained when the Bronx Petition was decided on or about November 1, 2001. If, on the other hand, the Bronx Petition was not properly filed, seven months would have elapsed by that date, leaving Eiland only five months to timely seek federal habeas relief.

  Second, Eiland indisputably filed a petition in Kings County Supreme Court on June 25, 2002 (the "Kings Petition"). The Kings Petition was denied on August 22, 2002, and petitioner was notified of the denial no later than September 23, 2002, when he was sent a copy of the decision by the Attorney General's Office. Nearly eight months thus elapsed between the alleged denial of the Bronx Petition and the filing of the Kings Petition. Therefore, if Eiland is not credited with tolling during the period of the alleged Bronx Petition, the federal statute of limitations had already run before the Kings Petition was filed. If ...

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