The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Leon Townsend, petitioner pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Because he failed to commence this proceeding within the one-year period of limitations, as required by 28 U.S.C. § 2244(d)(1), the petition is dismissed.
On September 17, 2002, petitioner pled guilty to first degree robbery, in violation of N.Y. Penal Law § 160.15. He was sentenced on October 24, 2002 pursuant to a plea agreement, which promised a determinate sentence of ten years' imprisonment. As part of the agreement, petitioner waived his right to appeal.
On May 22, 2003, petitioner filed a pro se motion to set aside his sentence or vacate his judgment of conviction pursuant to Sections 440.20 or 440.10 of the New York Criminal Procedure Law, on the ground that he had not been advised that his determinate sentence would be followed by five years of mandatory post-release supervision. His motion was denied by the New York Supreme Court on October 23, 2003.
Petitioner sought leave to appeal the denial of his post-judgment motion on December 4, 2003. That request was denied by the New York State Appellate Division, Second Department, on March 31, 2004. Petitioner sought leave to appeal with the New York Court of Appeals, which was dismissed on July 12, 2004, because it found that the order was not appealable under New York Criminal Procedure Law § 450.90(1). By pro se application dated October 4, 2005, Townsend petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The State argues that the petition should be dismissed because Townsend failed to file it within the applicable statute of limitations. For the reasons set forth below, this Court agrees.
A. Statute of Limitations
Under 28 U.S.C. § 2244(d)(1), there is a one-year statute of limitations on habeas corpus petitions that are filed by persons in state custody. Specific to the instant case, the period of limitations began running on the date on which the judgment of conviction became final, which is either the conclusion of direct review, or the expiration of time for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A).*fn1 Since the petitioner never filed a direct appeal from his October 24, 2002 judgment of conviction, his conviction became final, and the statute of limitations clock began running thirty days later on November 23, 2002.*fn2 After that date, a total of 180 days elapsed before May 22, 2003, the date on which petitioner filed his motion for post-judgment relief in the New York State Supreme Court. The limitations period was tolled during the pendency of those proceedings.*fn3 Once the Appellate Division denied leave to appeal the State Supreme Court's denial of his post-judgment motion on March 31, 2004, the statute of limitations clock started running again.*fn4 The remaining time, 185 days, expired long before Townsend filed the instant petition before this Court, on October 4, 2005.
Townsend does not contest the fact that his petition was untimely,*fn5 but rather offers a variety of excuses for the late date of his petition. He claims that his pro se status, his lack of education, his transfer between different prison facilities, his limited access to a law library while he has been incarcerated, and the fact that the late filing was unintentional, all excuse the fact that he did not submit his petition within the one-year statute of limitations under 28 U.S.C. § 2244(d)(1).*fn6
In "rare and exceptional" circumstances, the one-year statute of limitations is subject to equitable tolling. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 820 (2000); see also Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000). In order to obtain the benefit of equitable tolling, a petitioner must make two showings: (1) he must demonstrate that "extraordinary circumstances prevented him from filing his petition on time"; and (2) he must have "acted with reasonable diligence throughout the period he seeks to toll." Smith, 208 F.3d at 17. The petitioner bears the burden to affirmatively show that he is entitled to equitable tolling. See Tran v. Alphonse Hotel Corp., 281 F.3d 23, 37 (2d Cir. 2002).
Petitioner is not entitled to equitable tolling in the instant case because his proffered excuses do not constitute extraordinary circumstances under established law. First, a petitioner's pro se status and ignorance of the law do not merit equitable tolling.*fn7 The petitioner is also not entitled to a tolling of the statute of limitations because he has been transferred among prison facilities or has had limited access to a law library-routine restrictions on prison life do not constitute extraordinary circumstances.*fn8 Similarly, the fact that petitioner's late filing was unintentional does not rise to the level of an ...