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THOMAS v. WALSH

July 12, 2005.

WILLIAM THOMAS, Petitioner,
v.
WALSH, SUPERINTENDENT, SULLIVAN CORRECTIONAL FACILITY, Respondent.



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.

OPINION & ORDER

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 GRANTED.

I. BACKGROUND

  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. 13, 2002).

  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.

  II. DISCUSSION

  A. Standard of Review

  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 Limitations

  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 ...


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