The opinion of the court was delivered by: Gershon, United States District Judge
Pro se petitioner Roy Escobar applies to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that (1) his 2002 conviction in state court was obtained by a plea that was not knowing and voluntary, (2) he was denied the effective assistance of counsel during the State court proceedings, and (3) deportation violates his due process rights. For the reasons set forth below, petitioner's application is dismissed as untimely.
On September 2, 2002, Mr. Escobar pleaded guilty in New York Supreme Court, Queens County, to criminal possession of a controlled substance in the third degree in violation of New York Penal Law § 220.16. On November 13, 2002, Mr. Escobar was sentenced to an indefinite term of imprisonment of two and one-half to seven and one-half years.*fn1 Mr. Escobar never appealed his conviction. His judgment of conviction, therefore, became final on December 13, 2002.*fn2 On January 19, 2005, Mr. Escobar filed a motion, pursuant to New York Criminal Procedure Law § 440.10, to vacate his conviction, claiming that (1) his plea was not voluntary, (2) his counsel was ineffective for not filing a pre-trial suppression motion, and (3) his plea did not comport with the Vienna Convention. The motion was denied on April 8, 2005. Mr. Escobar then filed the instant petition for a writ of habeas corpus on May 23, 2005.
Congress imposes a one year statute of limitations on the filing of a habeas corpus petition by a state prisoner. 28 U.S.C. § 2244(d)(1). The one-year period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. §§ 2244(d)(1)(A) - (D).
Since Mr. Escobar's judgment of conviction became final on December 13, 2002, he had until December 13, 2003 to file a habeas corpus petition, plus any time tolled under Section 2244(d)(2) or the doctrine of equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 15-17 (2d Cir. 2000).
Reading the petition liberally, Mr. Escobar argues that the limitations period does not begin to run until the date on which certain facts supporting his claims could have been discovered through the exercise of due diligence. In his petition Mr. Escobar does not specifically identify any facts that would delay the running of the limitations period. Moreover, the record indicates that Mr. Escobar knew or should have known of all the relevant facts underlying his habeas petition at the time of his sentencing. For example, much of Mr. Escobar's habeas petition revolves around his claims that (1) the evidence seized from his house on May 31, 2002, was allegedly obtained without a search warrant and (2) that he was unaware that his conviction could serve as a basis for removal. According to Mr. Escobar's own allegations, however, Mr. Escobar advised his trial attorney prior to his indictment that he believed that the May 31, 2002 search had been conducted without a warrant. Thus, Mr. Escobar was aware of the allegedly unlawful search at the time he pled on November 12, 2002. Furthermore, even if one were to assume for the sake of argument that Mr. Escobar had not been advised of the deportation consequences of his plea at the time of his sentencing, Mr. Escobar was placed into removal proceedings on July 16, 2003, at which point he knew or should have known that his November 2002 conviction served as the basis for removal. As a result, Mr. Escobar's instant application for a writ of habeas corpus filed on May 23, 2005--more than one year after the statute of limitations began to run--is untimely.
Nor is Mr. Escobar entitled to equitable tolling. Assuming that equitable tolling is applicable to AEDPA's statute of limitations, a habeas petitioner who seeks equitable tolling must establish that extraordinary circumstances prevented him from timely filing his petition and that he has been diligent in pursuing his rights. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Mr. Escobar simply fails to identify any facts or circumstances in his petition that would warrant equitable tolling or a postponement of the statute of limitations' triggering date. Accordingly, the statute of ...