The opinion of the court was delivered by: Sweet, D.J.
Petitioner pro se Jose Jimenez ("Jimenez"), currently incarcerated at Green Haven Correctional Facility, Stormville, New York, seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for one count of murder in the second degree (New York Penal Law § 125.25) and one count of robbery in the first degree (New York Penal Law § 160.15). The respondent, William Phillips, Superintendent (the "State") has moved to dismiss the petition, pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that it is time-barred under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). For the reasons set forth below, the motion of the State is granted, and petitioner's motion is denied in its entirety.
A. State Court Proceedings
Following a jury trial, a judgment of conviction was entered on May 7, 1998, in New York State Supreme Court, Bronx County, for one count of murder in the second degree and one count of robbery in the first degree. Jimenez was sentenced to terms of imprisonment of 25 years to life for the first count and eight and a half to 25 years for the second count, to run concurrently. The Appellate Division, First Department, affirmed the conviction on direct appeal on June 1, 2000. People v. Jimenez, 273 A.D.2d 9 (1st Dept. 2000). The New York Court of Appeals denied leave to appeal to that court on October 26, 2000. People v. Jimenez, 95 N.Y.2d 906 (2000).
In an application dated July 10, 2001, petitioner moved the Appellate Division First Department for a writ of error coram nobis, alleging that his appellate counsel was ineffective for failing to raise the claim that he was denied his right to be present during peremptory challenges at voir dire and the claim that the trial court failed to inform him of his right to be present.
In a subsequent motion dated March 5, 2002, petitioner moved the trial court to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, claiming that his trial counsel was ineffective and that the indictment was defective because it failed to enumerate the elements of the crimes that were charged. On April 4, 2002, the Supreme Court denied the motion sua sponte.
On June 20, 2002, the Appellate Division denied both defendant's leave to appeal the lower court's denial of his § 440.10 motion and his writ of coram nobis.
B. Habeas Corpus Proceedings
Jimenez, proceeding pro se, signed his petition for a writ of habeas corpus on November 1, 1004. It was received by the Pro Se Office on November 12, 2004 and filed on December 23, 2004. Jimenez claimed: (1) that the trial court's reasonable doubt charge denied his due process right to a fair trial in violation of the Fourteenth Amendment of the United States Constitution and Article I, section 6 of the New York Constitution; (2) ineffective assistance of counsel at the trial and appellate levels in violation of the Sixth and Fourteenth Amendments of the United States Constitution; and (3) that the trial court did not have jurisdiction over him.
The State moved for dismissal of Jimenez's petition on April 15, 2005, arguing that his petition is time-barred by the one-year limitation period set forth by the AEDPA. 28 U.S.C. § 2244(d). The matter was marked fully submitted on May 25, 2005.
Under 28 U.S.C. § 2244, as amended by the AEDPA, an inmate may file a Section 2254 habeas corpus petition within one year of the date that his conviction becomes final or the facts giving rise to his claim could have been discovered. 28 U.S.C. § 2244(d)(1). The Second Circuit has held that for purposes of 28 U.S.C. § 2244, a state conviction becomes final when the time to seek certiorari to the United States Supreme Court has expired, which is 90 days after the date direct review of the case has been completed by the highest court in the relevant state. Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001).
The one-year limitations period under the AEDPA is 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). If utilized, this tolling provision "excludes time during which properly filed state relief applications are pending," but it does ...