The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE HAROLD BAER, JR., U.S.D.J.:
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 §
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.
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) ...