The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Matthew Danzig, a summer 2005 intern in my Chambers, and currently a second year law student at Georgetown University Law Center, provided substantial assistance in the research and drafting of this Opinion.
On June 25, 2003, pro se petitioner William Thomas
("Thomas") moved for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. On March 10, 2004, Respondent moved to dismiss the
petition as untimely pursuant to 28 U.S.C. § 2244(d). The matter
was referred to Magistrate Judge James C. Francis, who issued a
Report and Recommendation ("R&R") that the motion be granted on
September 24, 2004. Thomas filed objections, and for the reasons
stated below, the R&R is adopted and the motion to dismiss is
The procedural history of this case is recited in full in
Magistrate Judge Francis' R&R, familiarity with which is assumed.
To summarize, on June 6, 1984, at the age of sixteen, Thomas pled
guilty to robbery and attempted robbery. People v. Thomas, Nos.
1092/84, 1984/94 (Sup.Ct. N.Y. Co. Jan. 26, 2003). The court
adjourned the sentence and because of his young age placed Thomas
on "interim probation," a probationary period between conviction
and sentencing that imposed conditions on Thomas which, if satisfied, would afford him
youthful offender status and a lesser sentence. See, e.g.,
People v. Avery, 650 N.E.2d 384, 385 (N.Y. 1995). Thomas was
promised youthful offender status so long as he complied with the
terms of his interim probation and did not commit another crime
during that time period. Within the next two years Thomas was
convicted of Second Degree Murder and he was sentenced as an
adult for the earlier robbery, the attempted robbery, and the
murder. Thomas is now serving the murder sentence (twenty-five
years to life) and the robbery sentences (thirteen to forty
years) concurrently. The subject of this habeas petition
involves only the robbery and attempted robbery convictions.
On October 18, 1989, Thomas filed a post-conviction motion in
New York Supreme Court that sought to set aside the robbery and
attempted robbery sentences and vacate those convictions. The
motion was denied on January 10, 1990. People v. Thomas, Nos.
1092/84, 1984/84 (Sup.Ct. N.Y. Co. Jan. 10, 1990). Thomas
appealed alleging that (1) the sentencing court abused its
discretion by failing to order sua sponte a competency
hearing, and (2) his counsel was ineffective for failure to
request such a hearing. People v. Thomas, 169 N.Y.S.2d 372, 372
(N.Y.App. Div. 1st Dept. 1991). On January 17, 1991, the New
York State Appellate Division, First Department, affirmed the
conviction and sentence. Id. at 373. Thomas moved for further
leave to appeal and it was denied on August 8, 1991. Almost 11
years later, on July 31, 2002, Thomas filed a second
post-conviction motion in New York Supreme Court which again
sought to vacate the robbery convictions. Again the motion was
denied. People v. Thomas, No. 1092/84 (Sup.Ct. N.Y. Co. Sept.
On June 25, 2003, Thomas filed a habeas corpus petition in
this Court and, per the Court's direction, submitted an
affirmation that explained 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
("AEDPA"). Respondent filed a motion to dismiss the petition as
untimely. The matter was referred to Magistrate Judge Francis,
who issued an R&R finding the petition time-barred. Thomas filed
objections to that portion of the R&R.
In response to a magistrate judge's recommendation for the
disposition of a petition for habeas corpus, the district
court reviews de novo those parts of the report to which the
petitioner objects, and may accept, reject, or modify the report
in whole or in part. Fed.R.Civ.P. 72(b);
28 U.S.C. § 636(b)(1)(B), (C).
B. Petitioner's Objections
Thomas presents three objections to the Magistrate Judge's
recommendation that the petition be dismissed as time-barred: (1)
the AEDPA's statute of limitations for filing habeas corpus
petitions is unconstitutional; (2) he is entitled under the AEDPA
to toll the limitations period which would make his petition
timely; and (3) "extraordinary circumstances" exist which merit
equitable tolling. Smith v. McGinnis, 208 F.3d 13 (2d Cir.
2000); Valverde v. Stinson, 224 F.3d. 129 (2d Cir. 2000)
(holding that courts may equitably toll the limitations period
when "extraordinary circumstances" prevented a prisoner from
filing his habeas corpus petition on time). 1. The Constitutionality of the AEDPA's Statute of
The statute of limitations set forth by the AEDPA provides that
a petitioner must commence habeas corpus proceedings within
one year of the date the judgment in the underlying criminal case
became final.*fn1 28 U.S.C. § 2244(d)(1)(A) (2005).
Thomas argues that the statute of limitations imposed by the
AEDPA limits when a habeas petition may be filed and therefore
acts as a suspension of the writ in violation of the Suspension
Clause of the Constitution. See U.S. Const. art I, § 9, cl. 2
("The 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."). Unfortunately, the Second
Circuit has specifically held that the AEDPA's statute of
limitations does not run afoul of the Suspension Clause and
therefore is Constitutional. See, e.g., Lucidore v. N.Y. State
Div. of Parole, 209 F.3d 107, 113 (2d Cir. 2002) ("[T]he [AEDPA]
limitations period does not render the habeas remedy
`inadequate or ineffective to test the legality of detention' and
therefore does not per se constitute an unconstitutional
suspension of the writ of ...