The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Romel Shuler (hereinafter, "petitioner" or "Shuler") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. As set forth below, 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. In any event, even assuming arguendo that the petition were timely, it is without merit for the reasons set forth infra.
The following facts are adduced from the instant petition and underlying record.
On February 27, 1991, shortly before 10:00 p.m., petitioner was inside the lobby of 30 Debevoise Avenue, in Brooklyn, New York. (Trial Transcript (hereinafter "Tr.") at 25.) He was accompanied by Walter Bell ("Bell"), Walter Williams ("Williams"), Alan Smith ("Smith") and Clyde Daniels ("Daniels"). (Tr. 264.) Alvin Hart ("Hart") entered the lobby with two individuals and sold crack-cocaine to one of them. (Tr. 265.) Petitioner and Bell confronted Hart and told him that he could not sell drugs at that location. (Tr. 266.) While Bell argued with Hart, petitioner left the building. (Tr. 266.) Petitioner returned approximately five minutes later with a gun and shot Hart twice, killing him. (Tr. 266.)
2. Facts Relating to Walter Williams' Testimony
On February 28, 1991, Williams provided the police with a statement, allegedly asserting that he had never worked for petitioner as a drug dealer, which was audiotaped and transcribed (hereinafter "the Williams transcript").*fn1 According to petitioner's trial counsel, Joel Medows ("Medows"), he visited the Kings County District Attorney's office (hereinafter "DA") and was permitted to listen to portions of the audiotape "that [P]eople decided to disclose." (Resp.'s Ex. H, Pet.'s 2002 Mot. to Renew Mot. to Vacate Judgment, Ex. A, Medows Aff. ¶ 4.) At least two pages of the transcript, pages 5 and 7, were disclosed to Medows, as indicated by his initialing of the pages. (Pet.'s Ex. 2 at 5, 7.) In Williams' audiotaped statement, as well as in his trial testimony, he stated that he had witnessed petitioner shoot the victim. (Pet.'s Ex. 2; Tr. 297-300.)
On March 7, 1991, a DA investigator conducted a polygraph exam of Williams, who passed the examination. (Resp.'s Ex. H, Twersky Aff. ¶ 4; Resp.'s Opp. Br. to Def.'s Mot. to Renew Mot. to Vacate Judgment, Ex. V, Williams' Polygraph Agreement & Summary.)
On January 29, 1996, in response to a Freedom of Information Law (hereinafter "FOIL") request from petitioner, the DA offered petitioner the opportunity to obtain copies of discovery materials and witness statements pertaining to his case. (Respondent's Ex. H, Pet.'s 2002 Mot. to Renew Mot. to Vacate Judgment, Ex. E, Jan. 29, 1996 FOIL Ltr.) The materials listed include a twelve-page "Audio Taped Statement (Williams)." Id.
On April 22, 1996, Williams provided, to a private investigator, a sworn audiotaped statement in which he allegedly recanted his previous trial testimony identifying petitioner as the person who had murdered the victim. (Resp.'s Ex. H, Twersky Aff. ¶ 15.)
On June 30, 2000, in response to a second FOIL request from petitioner, the DA provided him with "seven pages of notes believed to have been prepared by Assistant District Attorneys assigned to your case and relating to the witness Walter Williams." (Resp.'s Ex. H, Opp. Br. to Def.'s Mot. to Renew Mot. to Vacate Judgment, Ex. IV, Jun. 30, 2000 FOIL Ltr.)
On March 26, 2002, petitioner's current counsel, Damond Carter, spoke with Medows regarding the transcript of Williams' February 18, 1991 statement (hereinafter "the Williams transcript"). According to both attorneys, in the course of their conversation, they realized that Carter was in possession of a full twelvepage transcript, even though Medows had conducted the trial while in possession of only the two initialed pages. (Resp.'s Ex. H, Pet.'s 2002 Mot. to Renew Mot. to Vacate Judgment, Ex. A, Carter Aff. ¶ 9; Resp.'s Ex. H, Pet.'s 2002 Mot. to Renew Mot. to Vacate Judgment, Ex. A, Medows Aff. ¶ 5.)
According to Medows, these two pages did not possess Williams' denial that he had sold drugs for petitioner, and Medows did not hear Williams make such a statement in the portions of the audiotape that he was permitted to listen to when he met with the DA. (Resp.'s Ex. H, Pet.'s 2002 Mot. to Renew Mot. to Vacate Judgment, Ex. A, Medows Aff. ¶¶ 3-5.)
1. Conviction and Sentencing
Shuler was charged in the Supreme Court of the State of New York, Kings County, with one count of murder in the second degree (N.Y. Penal Law § 125.25), one count of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), and one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02). (Tr. 25.) After a jury trial, in which Williams testified that he witnessed Shuler shoot the victim, Shuler was found guilty of murder in the second degree and criminal possession of a weapon in the second degree. (Tr. 697.) On June 15, 1993, Shuler was sentenced to concurrent prison terms of twenty years to life on the murder count and two to six years on the weapon possession count. (Resp.'s Ex. A, Tr. of Sentencing at 12-13, People v. Shuler, Ind. Nos. 2770/91, 5062/89 (N.Y. Sup. Ct. Jun. 15, 1993)).
On May 17, 1994, petitioner moved to vacate his judgment of conviction in the New York Supreme Court, Kings County, pursuant to N.Y. Crim. Proc. Law § 440.10. He raised the following claims: (1) that he was denied his constitutional right to confront a hostile witness when Williams, invoked his Fifth Amendment right against self-incrimination while testifying with regard to certain questions; (2) the prosecution committed prosecutorial misconduct and a violation pursuant to People v. Rosario, 9 N.Y.2d 286 (N.Y. 1961), by failing to disclose that Williams would testify regarding his knowledge of certain prior bad acts of petitioner; and (3) the prosecution committed a violation pursuant to Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose an alleged cooperation agreement with Williams. (Resp.'s Ex. B [Pet.'s Br./Aff. in Support of Mot. for Vacatur of Judgment].) By order dated November 18, 1994, the New York Supreme Court summarily denied Shuler's motion. People v. Shuler, Ind. No. 2770/91 at 5 (N.Y. Sup. Ct. Nov. 18, 1994).
Shuler appealed his judgment of conviction directly to the Appellate Division, Second Department. People v. Shuler, 656 N.Y.S.2d 665 (N.Y. App. Div. 1997). He raised the following claims: (1) the trial court improperly admitted evidence of his uncharged prior bad acts; (2) the prosecution had improperly impeached its own witness, Clyde Daniels, with prior unsworn statements; and (3) the prosecution's summation was prejudicial to defendant and denied him his right to a fair trial. Id. at 528. On April 21, 1997, the Appellate Division unanimously affirmed Shuler's conviction. Id.
By letter dated May 17, 1997, petitioner, acting pro se, sought leave to appeal to the New York Court of Appeals from the Appellate Division's April 21, 1997 decision. The Court of Appeals summarily denied leave to appeal on August 22, 1997. People v. Shuler, 686 N.E.2d 234 (N.Y. 1997).
On June 5, 1997, Shuler made a second motion to vacate and to set aside his sentence on the basis of Williams' recantation, pursuant to New York Criminal Procedure Laws §§ 440.10(1)(g) and 440.20(1). The trial court denied Shuler's motion on October 23, 1997. People v. Shuler, Ind. No. 2770-91 (N.Y. Sup. Ct. Oct. 23, 1997).
On October 7, 1998, petitioner moved pro se for an order vacating his judgment of conviction, pursuant to N.Y. C.P.L. § 440.10. The trial court denied Shuler's motion by opinion dated July 2, 1999. People v. Shuler, Ind. No. 2770/91 (N.Y. Sup. Ct. Jul. 2, 1999). The Appellate Division denied petitioner's subsequent application for leave to appeal on April 20, 2000. People v. Shuler, No. 1999-08388 (N.Y. App. Div. Apr. 20, 2000).
5. Motion for a Writ of Error Coram Nobis
Shuler then applied to the Appellate Division, Second Department, for a writ of error coram nobis vacating (1) the April 21, 1997 order affirming his conviction; (2) the November 18, 1994 order denying petitioner's motion to vacate his conviction; and (3) the June 15, 1993 sentencing order. In his moving papers, petitioner alleged ineffective assistance of appellate counsel. The Appellate Division denied petitioner's request for a writ of error coram nobis on October 30, 2000. People v. Shuler, 717 N.Y.S.2d 885 (N.Y. App. Div. 2000).
6. First Motion to Renew 1994 Motion to Vacate
On October 19, 2001, Shuler, represented by counsel, sought to renew his initial May 17, 1994 motion to vacate judgment in the New York Supreme Court. The trial court denied Shuler's motion. People v. Shuler, Ind. No. 2770/91 (N.Y. Sup. Ct. Feb. 13, 2002). The Appellate Division denied petitioner leave to appeal the trial court's order on July 30, 2002. People v. Shuler, No. 2002-2921 (N.Y. App. Div. Jul. 30, 2002). On October ...