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Forbes v. Walsh

January 6, 2006

ROGER FORBES, PETITIONER,
v.
JAMES J. WALSH, RESPONDENT



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Lewis A. Kaplan, United States District Judge

Pro se petitioner Roger Forbes seeks a writ of habeas corpus from his March 20, 1997 conviction in Supreme Court, Bronx County, of second degree murder and second degree manslaughter and sentence of twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.)

For the reasons set forth below, Forbes' petition should be denied as time-barred by the AEDPA's one year statute of limitations.

FACTS

The First Department affirmed Forbes' conviction on September 23, 1999 and the New York Court of Appeals denied leave to appeal on February 4, 2000. People v. Forbes, 264 A.D.2d 631, 696 N.Y.S.2d 10 (1st Dep't 1999), appeal denied, 94 N.Y.2d 903, 707 N.Y.S.2d 387 (2000). Forbes did not file a petition for a writ of certiorari in the United States Supreme Court. (Dkt. No. 2: Pet. ¶ 10(g).)

On or about March 19, 2001, Forbes filed a motion for a writ of error coram nobis in the First Department. (Dkt. No. 10: A.D.A. Won Aff. ¶ 7 & Ex. 3: Forbes Coram Nobis Papers, notarized March 19, 2001.)*fn1 The First Department denied the motion on March 5, 2002. People v. Forbes, 292 A.D.2d 881, 741 N.Y.S. 2d 145 (1st Dep't 2002) (table). (See also Pet. ¶ 12(a)(6).)

Forbes filed a C.P.L. § 440 motion in Supreme Court, Bronx County, on or about September 13, 2002. (A.D.A. Won Aff. ¶ 9 & Ex. 4: Forbes C.P.L. § 440 Motion Papers, with an affidavit of service dated 9/13/02.)*fn2 The Supreme Court, Bronx County denied Forbes' C.P.L. § 440 motion on November 7, 2002. (A.D.A. Won Aff. ¶ 10; Pet. ¶ 12(b)(7).) The First Department denied leave to appeal on April 29, 2003. (A.D.A. Won Aff. ¶ 11; see Pet. ¶ 12(d).)

Forbes' federal habeas corpus petition is dated February 2, 2004 and was received by the Court's Pro Se Office on February 4, 2004. (Pet. at pp. 1, 6.)

On June 28, 2004, then-Chief Judge Mukasey ordered Forbes to show cause why his petition was not time barred. (Dkt. No. 3.) Forbes' response affidavit stated that he was not aware of the AEDPA limitations period and had relied on inmate clerks to help him with his legal work. (Dkt. No. 4: Forbes Aff.)

On May 16, 2006, the case was re-assigned to Judge Kaplan, who directed the State to respond to Forbes' petition. (Dkt. Nos. 5-6.) After receiving extensions, on or about October 30, 2006, the State moved to dismiss Forbes' petition as time barred. (Dkt. No. 10.) On January 5, 2007, Judge Kaplan referred the matter to me for a Report and Recommendation. (Dkt. No. 12.)

ANALYSIS

A. Forbes' Habeas Petition Was Untimely

The AEDPA provides for a one-year ...


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