REPORT AND RECOMMENDATION
TO THE HONORABLE HAROLD BAER, JR., U.S.D.J.:
William Thomas brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for Robbery in the First Degree and Attempted Robbery in the First Degree. He argues: (1) that he was not mentally competent to plead guilty; (2) that he received ineffective assistance of counsel; (3) that the indictment against him was legally insufficient; (4) that his sentence was unduly harsh; and (5) that he was not advised of the consequences of violating the plea agreement. In an Order dated June 25, 2003, the Honorable Michael B. Mukasey, United States District Judge, directed Mr. Thomas to submit an affirmation setting forth why his petition should not be barred by the one year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. 104-32, 110 Stat. 1214 (codified at 28 U.S.C. § 2244(d)). Mr. Thomas complied with Judge Mukasey's instruction in a submission dated October 1, 2003. The respondent in turn moved to dismiss the petition as time-barred. For the reasons discussed below, I recommend that the respondent's motion be granted and the petition be dismissed.
On June 6, 1984, the petitioner pled guilty to Robbery in the First Degree in violation of New York Penal Law § 160.15 and Attempted Robbery in the First Degree in violation of Penal Law §§ 110.00 and 160.15. People v. Thomas, Nos. 1092/84, 1984/94 (Sup. Ct. N.Y. Co. Jan. 26, 2003) (slip op.) (attached as Exh. N to Declaration of Kimberly Morgan dated March 10, 2004 ("Morgan Decl."), at 1). The court postponed sentencing the defendant and placed him on interim probation. Id. As part of his plea agreement, the petitioner was promised youthful offender status on the conditions that he comply with his interim probation and not commit another crime. Nevertheless, prior to sentencing, the petitioner committed another robbery, during the course of which the victim was shot and killed. Id. at 1-2. The petitioner was convicted of Murder in the Second Degree, and as a result of this conviction was sentenced as an adult on the pending robbery counts. Id. at 2.
On October 18, 1989 the petitioner filed a post-conviction motion pursuant to Criminal Procedure Law ("CPL") §§ 440.20 and 440.10, which was denied by the New York State Supreme Court on January 10, 1990. People v. Thomas, Nos. 1092/84, 1984/84 (Sup. Ct. N.Y. Co. Jan. 10, 1990) (slip op.) (attached as Exh. C to Morgan Decl.). The petitioner's conviction and sentence were affirmed on appeal by the Appellate Division, First Department on January 17, 1991, People v. Thomas, 169 A.D.2d 515, 564 N.Y.S.2d 372 (1st Dep't 1991), and leave to appeal was denied by the Court of Appeals on August 8, 1991. People v. Thomas, 78 N.Y.2d 975, 574 N.Y.S.2d 955 (1991). On July 31, 2002, the petitioner filed a second post-conviction motion pursuant to CPL § 440.10 (the "Second 440 Motion"), which was denied on January 26, 2003. (Morgan Decl., Exh. N). The Appellate Division denied the petitioner's leave application on April 22, 2003. People v. Thomas, M-1217 (1st Dep't April 22, 2003) (slip op.) (attached as Exh. Q to Morgan Decl.). Thereafter, Mr. Thomas filed the instant petition for a writ of habeas corpus.
A. Constitutional Validity of the Statute of Limitations
The AEDPA imposes a one-year period of limitations for habeas corpus petitions, running from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The AEDPA further provides that "[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 shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
The petitioner argues that imposing a statute of limitations on the writ of habeas corpus is unconstitutional because it violates the Suspension Clause of the United States Constitution. The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. The Second Circuit, however, has determined that the AEDPA's statute of limitations does not violate the suspension clause. See Lucidore v. N.Y. State Division of Parole, 209 F.3d 107, 113 (2002); ...