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Whaley v. Graham

March 6, 2007

JOHN WHALEY, PETITIONER,
v.
H.D. GRAHAM, SUPERINTENDENT AUBURN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

On May 11, 2006, John Whaley ("petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 6, 2006, respondent H.D. Graham moved to dismiss the petition as time-barred. For the reasons that follow, respondent's motion is granted and the petition is dismissed.

I. BACKGROUND

A. The 2003 Conviction

Petitioner was indicted by a Grand Jury in Suffolk County, New York on August 23, 2002 on one count of Attempted Burglary in the Third Degree [N.Y. State Penal Law §§ 110/140.20] and one count of Criminal Mischief in the Fourth Degree [N.Y. State Penal Law § 145.00]. On February 10, 2003, petitioner was convicted, upon his plea of guilty, in the Supreme Court of the State of New York, Suffolk County for the crime of Attempted Burglary in the Third Degree (the "2003 Conviction"). Petitioner was sentenced to a determinate term of incarceration of seven months, with credit for time served. Petitioner is no longer incarcerated on this conviction. No Notice of Appeal relating to this conviction has ever been filed on petitioner's behalf.

B. The 2004 Conviction

In a separate case, on October 27, 2003, petitioner was indicted by a Grand Jury in Suffolk County on one count of Attempted Burglary in the Third Degree and one count of Criminal Mischief in the Fourth Degree. On August 9, 2004, petitioner was convicted, upon his plea of guilty, in the Supreme Court of the State of New York, Suffolk County for the crime of Attempted Burglary in the Third Degree (the "2004 Conviction"). Petitioner was sentenced, as a second felony offender, to an indeterminate term of incarceration of one and one-half to three years.

On October 26, 2004, petitioner moved the Appellate Division, Second Judicial Department, for permission to file a late Notice of Appeal regarding the 2004 Conviction. By Decision and Order on Motion dated December 9, 2004, the court granted petitioner's motion. On March 11, 2005, the Appellate Division assigned the Legal Aid Society of Suffolk County to represent petitioner on his direct appeal of the 2004 Conviction. According to the record before this Court, petitioner's direct appeal is currently pending in state court.

On April 7, 2005, petitioner filed a C.P.L. § 440.10 motion with the Supreme Court of the State of New York, Suffolk County seeking to vacate the 2004 Conviction. On June 17, 2005, the court denied petitioner's motion.

On July 6, 2005, petitioner filed a second C.P.L. § 440.10 motion with the Supreme Court of the State of New York, Suffolk County seeking to vacate the 2003 Conviction and the 2004 Conviction. On October 19, 2005, the court denied petitioner's motion. On January 10, 2006, the Appellate Division denied petitioner's application for leave to appeal from that decision.

On November 3, 2005, petitioner filed a third C.P.L. § 440.10 motion with the Supreme Court of the State of New York, Suffolk County seeking to vacate the 2003 Conviction and the 2004 Conviction. On January 23, 2006, the court denied petitioner's motion. On April 12, 2006, the Appellate Division denied petitioner's application for leave to appeal from that decision. 3. The Instant Petition

On May 15, 2006, pro se petitioner filed an application for a writ of habeas corpus dated May 11, 2006*fn1 in the United States District Court for the Northern District of New York. By order dated May 31, 2006, Magistrate Judge Randolph F. Treece of the Northern District transferred the instant petition to this Court.

The first page of the petition refers to both the 2003 Conviction and the 2004 Conviction. However, the accompanying submissions only present arguments regarding the legality of the 2003 Conviction. Moreover, in a letter dated August 1, 2006, petitioner ...


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