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Mullings v. Ercole

August 2, 2007

ANDREW MULLINGS, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge

MEMORANDUM-DECISION and ORDER

I. Introduction

The Clerk has sent to the Court for review a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by pro se petitioner Andrew Mullings. Dkt. No. 1. Petitioner is presently confined at Green Haven Correctional Facility, and has not paid the filing fee for this action. Petitioner has filed an in forma pauperis application. Dkt. No. 2. Petitioner has also requested a stay of this action pending full exhaustion of his claims. Dkt. No. 3.

II. The Petition

In his habeas petition, petitioner complains of a judgment of conviction rendered in Albany County Court on November 30, 2001, wherein petitioner was found guilty after a jury trial of attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree. Petitioner states that he was sentenced to a term of twenty-five years imprisonment. Dkt. No. 1 at 1. The Appellate Division, Third Department, affirmed the convictions, and the Court of Appeals denied leave to appeal on December 29, 2005. Id. at 2.

In support of his request for habeas corpus relief, petitioner asserts that the evidence adduced at trial was legally insufficient to support his conviction of attempted murder, that his right to confront witnesses was violated, and that he received ineffective assistance of trial and appellate counsel. For a complete statement of petitioner's claims, reference is made to the petition.

III. Filing Fee and in Forma Pauperis Application

Petitioner has not paid the statutory filing fee of $5.00 for this proceeding. A review of his in forma pauperis application reveals that petitioner had sufficient funds in his inmate account when this action was commenced to pay the filing fee. See Dkt. No. 2. Therefore, petitioner is directed to submit the full filing fee of $5.00 in order to proceed with this action.

Petitioner's in forma pauperis application is granted.

IV. Request for a Stay

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")*fn1 federal habeas petitions challenging a judgment of a state court are subject to a one year statute of limitations. Specifically, 28 U.S.C. § 2244(d) reads:

(1) A one year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run 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 ...


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