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