The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
This is a petition for a writ of habeas corpus, brought under
28 U.S.C. § 2254. Petitioner appears pro se and is presently
incarcerated in the Franklin Correctional Facility.
Petitioner challenges his conviction in New York Supreme Court,
New York County. He alleges that his sentence was based on a
finding that he was a second felony offender, and that this
finding was invalid because the first matter involved a youthful
On April 3, 1995, having pled guilty, petitioner was convicted
on three counts of robbery in the first degree, and was sentenced
to three concurrent 7½-to-15-year terms of imprisonment.
Petitioner did not directly appeal from the conviction. However,
on January 7, 2004, he filed a motion in the trial court to set aside his sentence under
N.Y. Crim. Proc. Law § 440.20. The basis for the motion was the
same argument petitioner makes in the present federal court
petition. The state court motion was denied on June 23, 2004.
Petitioner sought leave to appeal to the Appellate Division,
First Department. This was denied on August 31, 2004. Petitioner
then sought leave to appeal to the New York Court of Appeals.
This was denied on October 19, 2004.
Petitioner's original federal court petition was received in
the Pro Se Clerk's office of this court on January 13, 2005. By
order dated February 4, 2005, Chief Judge Mukasey gave petitioner
notice that there were certain possible problems with the
petition. One of these was the possibility that the petition
might be time-barred. The order set out the applicable statute of
limitations, and contained a lengthy discussion of certain
features of that statute. The order gave petitioner the
opportunity to file an amended petition demonstrating why the
case should not be dismissed as time-barred.
An amended petition was filed on February 24, 2005. Because of
certain remaining issues regarding the statute of limitations,
petitioner was given the opportunity to file a second amended
petition, which he did on April 7, 2005. It contains the
following statement under the heading "Timeliness of Petition": Petitioner has been researching my transcripts, etc.
in the period of time I've been incarcerated. It took
many years for me to learn and know that I was
sentenced under an illegal sentence which should be
modified by the courts heretofore. I should be held
accountable for what I knew not for what I don't
know. In addition to being in transit in the early
stages of my incarceration, that also hindered me
from having the adequate time to study, or a feasible
environment to fully respond back in a timely
fashion. That's the honest truth to why I haven't
filed my original petition on time.
This case was transferred to the undersigned judge on April 29,
A district court has the authority to raise sua sponte the
issue of the statute of limitations in connection with a habeas
corpus petition. Acosta v. Artuz, 221 F.3d 117, 122-124 (2d
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") contains a one-year statute of limitations applicable
to habeas corpus petitions of state prisoners.
28 U.S.C. § 2244(d). This provides in relevant part:
(d)(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State
court. The limitation period shall run from the
(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;
. . . (D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The 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
The statute became effective April 24, 1996.
The orders sent to petitioner by Chief Judge Mukasey discussed
the legal rules applicable to subsections (d)(1)(A) and (d)(2)
and certain judicial decisions relating to those provisions. But
the orders did not discuss subsection (d)(1)(D). There is an
issue, which will be discussed hereafter, as to whether
petitioner should be given notice of an opportunity to present
any facts or argument under subsection (d)(1)(D). However, it is
first necessary to set forth the law applicable to subsections
(d)(1)(A) and (d)(2), which were the subject of the orders given
The pertinent rules are as follows. Prisoners, whose
convictions became final prior to the Act's effective date of
April 24, 1996, had a one-year grace period in which to file
their habeas corpus petitions, or until April 24, 1997. Smith v.
McGinnis, 208 F.3d 13, 15 (2d Cir. 2000); Ross v. Artuz,
150 F.3d 97, 102-103 (2d Cir. 1998).
Courts may exercise their equitable powers to toll the one-year
statute of limitations contained in Section 2244(d) or the grace
period. Smith v. McGinnis, 208 F.3d at 17. In order for equitable tolling to
apply, the petitioner must show (i) that extraordinary
circumstances prevented him from filing his petition on time and
(ii) that petitioner acted with reasonable diligence throughout
the period he seeks to toll. Smith v. McGinnis 208 F.3d at 17;
Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d. Cir. 1996).
Subsection (d)(2) contains an express tolling provision that
applies to both the statute of limitations and the one-year grace
period. The applicable period is tolled during the time when a
properly filed state relief application is pending. But such a
state application does not restart a limitation period once such
period has expired. Scarola v. Kelly, No. 99 Civ. 4704 (HB),
2001 WL 849449, at *3 (S.D.N.Y. ...