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August 17, 2005.

STATE OF NEW YORK, Respondent.

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge



Jose Luis Alvarado brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of first degree assault following a jury trial. Mr. Alvarado contends: (1) that he was convicted on the basis of evidence obtained pursuant to an unlawful arrest, as well as improperly admitted hearsay evidence; (2) that the prosecution failed to disclose exculpatory evidence; (3) that the verdict was against the weight of the evidence; and (4) that he received ineffective assistance of counsel. The respondent opposes the petition on the merits and also argues that the petition should be dismissed as time-barred by the one-year period of limitation imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). For the reasons that follow, I recommend that the petition be dismissed as time-barred.


  On July 24, 1997, a jury in New York State Supreme Court, New York County, found Mr. Alvarado guilty of Assault in the First Degree in violation of New York Penal Law § 120.10(1). People v. Alvarado, 294 A.D.2d 155, 744 N.Y.S.2d 622 (1st Dep't 2002). (Brief For Defendant-Appellant dated Dec. 21, 2001 ("Appellate Brief"), attached as Exh. A to Declaration of Michael P. King dated July 19, 2004 ("King Decl."), at 1). The conviction stemmed from a stabbing that occurred on the night of August 21, 1996. (Amended Petition dated Aug. 19, 2004, at 2; Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus, dated July 19, 2004 ("Resp. Memo."), at 1-2). On August 14, 1997, Mr. Alvarado was sentenced as a second violent felony offender to a determinate term of eleven years in prison. (King Decl., Exh. D; Resp. Memo. at 1). The Appellate Division, First Department affirmed the conviction on May 9, 2002. (King Decl., Exh. D). Thereafter, the New York Court of Appeals denied leave to appeal on August 22, 2002. People v. Alvarado, 98 N.Y.2d 708, 749 N.Y.S.2d 5 (2002). On August 26, 2002, Mr. Alvarado's appellate attorney, Rebecca Jacobstein, notified him of this determination in the following letter:
I am sorry to inform you that the application for permission to appeal to the Court of Appeals in your case has been denied. I have enclosed is [sic] a copy of the court's certificate.
This means that the Court of Appeals has decided not to hear your case and the direct appeal of your conviction is concluded. I hope that you are having greater success in your 440 motion. If you have any questions about the certificate denying leave to appeal, please feel free to contact me. Unfortunately, there is nothing else I can do to get your conviction reversed.
(Letter of Rebecca A. Jacobstein dated August 26, 2002 ("Jacobstein Letter"), attached to Letter of Labe M. Richman dated May 25, 2005 ("Richman Letter")). Mr. Alvarado did not thereafter seek a writ of certiorari from the United States Supreme Court. (Amended Petition at 3).

  Mr. Alvarado executed his initial habeas corpus petition on November 24, 2003, and it was filed with the Pro Se Office in the Eastern District of New York on December 10, 2003. (King Decl. at 1). On February 19, 2004 the case was transferred to this district and, with the permission of the court, Mr. Alvarado amended his petition on August 19, 2004. (Amended Petition at 7; King Decl. at 1; Letter of Jose Luis Alvarado dated June 1, 2004 ("Alvarado Letter"), endorsed on June 23, 2004).

  For the purpose of further developing the record pertinent to a determination of the instant petition, I appointed counsel to represent Mr. Alvarado on January 25, 2005. (Order dated January 25, 2005). Thereafter, the petitioner submitted an affidavit addressing the timeliness of his habeas corpus petition. (Order dated June 10, 2005; Affidavit of Luis Alvarado dated June 14, 2005 ("Alvarado Aff.")). Discussion

  A. AEDPA Statute of Limitations

  The respondent argues that the petitioner's habeas corpus petition is time-barred under 28 U.S.C. § 2244(d)(1). That provision imposes a one-year period of limitation for habeas corpus petitions that runs 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 and 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).

  Mr. Alvarado's conviction became final on November 20, 2002, upon the expiration of the ninety-day period during which he could have sought a writ of certiorari from the United States Supreme Court. See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003) (deeming petitioner's conviction final ninety days after date of order denying application for leave to appeal to New York Court of Appeals); Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002). As a result, the period of limitation began to run on that date and Mr. Alvarado had until November 20, 2003 to file his petition. Although Mr. Alvarado was represented by counsel during his appeal, he filed the instant petition pro se. (King Decl. at 1; Amended Petition at 7). Thus, pursuant to the "prison mailbox rule," Mr. Alvarado is deemed to have filed his initial petition on November 24, 2003, the date on which he executed the petition and the earliest date on which he could have given it to prison authorities to be mailed. See Houston v. Lack, 487 U.S. 266, 270 (1988) (holding pro se petitioner's notice of appeal filed upon delivery to prison authorities for forwarding to court clerk); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (extending prison mailbox rule to habeas corpus petitions).

  Although Mr. Alvarado filed his petition over a year after his conviction became final, the AEDPA provides that the period of limitation shall be tolled while 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). While the respondent asserts that neither the District Attorney's office nor the New York County Supreme Court has any record of such a motion in their files (Resp. Memo. at 11-12), Mr. Alvarado indicated in his petition that he filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10(h). (Amended Petition at 3, 4). In his affidavit addressed to the timeliness of his petition, however, he does not mention any such motion; instead, he states that he was initially confused as to whether or not he should file a § 440 motion, but eventually found someone to assist him with the instant habeas corpus petition. (Alvarado Aff., ¶ 1). In addition, Mr. Alvarado's current appointed counsel does not rely on any post-conviction motion and instead concedes that the "respondent correctly alleged that [Mr. Alvarado] missed the statute of limitations[.]" (Richman Letter at 1). Together, these statements indicate that Mr. Alvarado never filed a motion pursuant to CPL § 440.

  As a result, the limitations period was not tolled during the pendency of any post-conviction motions and, instead, it ran for 369 days from November 21, 2002 to November 24, 2003. Thus, as both the petitioner and the respondent now acknowledge, Mr. Alvarado was four days late in filing his petition for a writ of habeas corpus. (Richman Letter at 1; Resp. Memo. at 11). Consequently, Mr. Alvarado's petition is time-barred.

  B. Equitable Tolling

  Mr. Alvarado also asserts that he is eligible for equitable tolling of the limitations period because, following the conclusion of his direct appeal, his appellate lawyer did not respond to his inquiry regarding filing a post-conviction motion, and he was thereafter unsure of how to proceed with his case. (Alvarado Aff., ¶ 1; Richman Letter at 1-2). Because the Second Circuit has construed the limitations period set out in 28 U.S.C. § 2244(d)(2) as a statute of limitations rather than as a jurisdictional bar, a court may equitably toll this period if "rare and exceptional circumstances" prevent a petitioner from filing promptly. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); see also Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) ...

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