The opinion of the court was delivered by: Rochester, New York.
Petitioner, Thomas J. Gant ("Gant"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Erie Count) on charges of second degree murder and second degree criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
An Erie County Grand Jury returned an indictment on February 26, 1998, charging Gant with two counts of second degree murder (N.Y. Penal Law § 125.25(1), (2)) and one count of second degree criminal possession of a weapon (N.Y. Penal Law § 265.03). The indictment alleged that on January 5, 1998, in the City of Buffalo, Gant (a/k/a "J-Bird"), either with intent or under circumstances evincing a depraved indifference to human life, caused the death of Mikel A. Dickson ("Dickson"). The testimony at trial was that Dickson was killed by a bullet wound to the back. Three eyewitnesses (Antwonn Phillips, Keith Lyons and Henry Wright) identified Gant as the shooter and testified at trial.
The jury returned a verdict convicting Gant of intentional murder and criminal possession of a weapon. He was sentenced on November 30, 1998, to twenty-five years to life in prison. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction on February 1, 2002. People v. Gant, 291 A.D.2d 912, 736 N.Y.S.2d 820 (App. Div. 4th Dept. 2002). The New York Court of Appeals denied leave to appeal on June 17, 2002. People v. Gant, 98 N.Y.2d 675, 774 N.E.2d 229, 746 N.Y.S.2d 464 (N.Y. 2002). Gant filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 on September 16, 2003, raising a claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), which appellate counsel already had raised on direct appeal. The motion which was denied by the trial court January 22, 2004. See Exhibit D to Respondent's Appendix of Exhibits. The Appellate Division denied leave to appeal on April 8, 2004. See id.
Gant filed the instant habeas petition on April 15, 2004. See Docket #1. Respondent answered the petition and interposed the defense of untimeliness, and Gant submitted a traverse (reply pleading). For the reasons set forth below, Gant's petition is dismissed as untimely.
I. Timeliness of the Petition
A. Statute of Limitations Under AEDPA
One of the changes wrought by AEDPA*fn1 is the imposition of a one-year limitations period on habeas petitions which begins to run from the latest of several events, one of which is the date on which the challenged state court judgment becomes final. See 28 U.S.C. § 2244(d)(1); Bennett v. Artuz, 199 F.3d 116, 118 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). In this case, as in most cases, the one-year period runs from the date the state conviction becomes final.
28 U.S.C. § 2244(d)(1)(A). The state conviction becomes final for AEDPA purposes when the petitioner's time to seek direct review in the United States Supreme Court by writ of certiorari expires. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Here, that period expired 90 days after the New York Court of Appeals denied leave to appeal. Pratt v. Greiner, 306 F.3d 1190, 1195 n. 1 (2d Cir. 2002). Therefore, Gant's judgment of conviction became final on September 15, 2002, (not September 17, 2002, as petitioner asserts), which was 90 consecutive chronological days from June 17, 2002, which is when the New York Court of Appeals denied leave to appeal the Appellate Division's affirmance of Gant's conviction. Gant's one-year limitations period thus would have expired one year later, on September 15, 2003.
AEDPA provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation." 28 U.S.C. § 2244(d)(2); Bennett, 199 F.3d at 119. In the Bennett case, the Second Circuit joined the majority of circuit courts in holding that the tolling provision of § 2244(d)(2) applies to petitions challenging pre-AEDPA convictions. See Bennett, 199 F.3d at 119 (noting that to hold otherwise would effectively discourage appellants from starting and completing the state court review process). The Second Circuit went on to announce that a state court application or motion for collateral relief is "'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; see also Carey v. Saffold, 536 U.S. 214, 217, 220-21 (2002).
Here, Gant filed his first and only state court motion for collateral relief on September 16, 2003, one day after the limitations period expired on September 15, 2003. Thus, the one-year limitations period ran out before Gant could gain the benefit of § 2244(d)(2)'s tolling occasioned by the filing of his C.P.L. § 440.10 motion. ...