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FOSTER v. PHIILLIPS

November 3, 2005.

JOSEPH FOSTER, Petitioner,
v.
WILLIAM PHIILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.



The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

MEMORANDUM AND ORDER

INTRODUCTION

This habeas corpus petition was referred to me by the Honorable Michael B. Mukasey, Chief United States District Judge. Pro se petitioner Joseph Foster ("Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1998 conviction and sentence in the New York Supreme Court, New York County. Respondent William Phillips ("Respondent") has moved to dismiss the petition as barred by the applicable statute of limitations.

  As discussed in greater detail below, this Court has considered the statute of limitations argument set forth in Respondent's motion to dismiss the petition, and — assuming the accuracy of the chronology recounted by Respondent — finds the argument persuasive. The Court, however, is not prepared at this time to recommend to Judge Mukasey that the petition be dismissed, because a key date on which Respondent relies for its statute of limitations calculation (specifically, the date when Petitioner filed a motion pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction) is neither alleged in the petition nor supported by adequate documentation. Instead, Respondent merely states this date in its Memorandum of Law, without any citation, and without providing any evidence to confirm the accuracy of this date. (See Respondent's Memorandum of Law, dated July 30, 2003 ("Resp. Mem.") (Dkt. 6.), at 5.)

  Therefore, as set forth below, Respondent is directed to supplement its motion to dismiss the petition with an appropriate affidavit or declaration, attaching Petitioner's Section 440.10 motion as an exhibit. This should enable the Court to take judicial notice of the date on which that motion was deemed filed for purposes of calculating the habeas limitations period,*fn1 and to make a recommendation to Judge Mukasey on that basis. Without reviewing the motion, however, this Court cannot resolve the statute of limitations question.

  PROCEDURAL HISTORY

  Given that Respondent has moved for dismissal of the petition solely on statute of limitations grounds, it is worth noting that Respondent has not filed with this Court any part of the state court record as support for the procedural chronology it uses in its memorandum to calculate the limitations period. Nor does Respondent base its calculation on dates alleged in the petition; in fact, in the petition, Petitioner lists certain dates as "unknown" (including the date he was denied leave to appeal to the Court of Appeals from the Appellate Division's affirmance of his conviction, and the date his collateral motion to vacate the judgment was denied), and alleges other dates that differ from those stated by Respondent (including the date of his conviction, and the date the judgment of conviction was affirmed by the Appellate Division). Although some of the dates stated in Respondent's Memorandum of Law can be confirmed by published reports of state court decisions, others cannot be determined by this Court based on publicly available information. To the extent the Court has been able to discern the procedural history of this case, it is set out below.

  A. Conviction and Direct Appeal

  According to Respondent, Petitioner was convicted by a jury in February 1998*fn2 of one count of Murder in the Second Degree, in violation of New York Penal Law § 125.24[1], for which he was sentenced to an indeterminate prison term of 25 years to life, and one count of Attempted Murder in the Second Degree, in violation of New York Penal Law §§ 110.00 and 125.25[1], for which he was sentenced to a concurrent prison term of 25 years. (Resp. Mem. at 1.) Following his sentence, Petitioner was incarcerated at the Green Haven Correctional Facility ("Green Haven") in Stormville, New York. (Pet. at 8.)

  Although this Court has not been provided with a copy of the trial transcript, Respondent states that Petitioner's conviction was based on the shooting of two people, Jerry Venson ("Venson"), who died as a result, and Khalil Curtis ("Curtis"), who was wounded. (See Resp. Mem. at 2.) According to Respondent, Petitioner shot Venson and Curtis in Manhattan on October 30, 1996, in the presence of at least six witnesses. (See id. at 2, 11.) Respondent asserts that these eyewitnesses identified him at trial as the shooter. (See id. at 11.)

  Petitioner apparently filed a timely appeal with the New York State Supreme Court, Appellate Division, First Department, which affirmed the judgment of conviction. Although the Petition alleges that the affirmance was dated April 10, 2001 (see Pet. ¶ 9(c)), the published opinion confirms Respondent's assertion that the opinion was issued on April 5, 2001 (see Resp. Mem. at 4; People v. Foster, 282 A.D.2d 226 (1st Dept. 2001)).

  According to Respondent, Petitioner applied for leave to appeal to the New York Court of Appeals on May 16, 2001. (Resp. Mem. at 4.) On July 12, 2001, that application was denied. See People v. Foster, 96 N.Y.2d 901 (2001); see also Resp. Mem. at 4.

  B. Collateral Review

  Respondent states that, by pro se papers dated February 28, 2002, Petitioner moved to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. (Resp. Mem. at 5.) Although Petitioner confirms in his petition that he filed a Section 440.10 motion (see Pet. ¶ 11), he does not state when that petition ...


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