The opinion of the court was delivered by: Chin, D.J.
In this case, petitioner Andres Martinez pled guilty in the Supreme Court of New York, Bronx County to two counts of rape in the first degree, two counts of attempted rape in the first degree, and one count of robbery in the first degree in violation of New York Penal Law § § 110.00, 130.35(1), and 160.15(3). Martinez was sentenced to a term of imprisonment of twenty to forty years. Now proceeding pro se, Martinez petitions for a writ of habeas corpus pursuant to 28 U.S. C. § 2254 on the ground that he was denied effective assistance of counsel. For the reasons set forth below, the petition is denied.
On April 24, 1998, Martinez pled guilty to two counts of rape in the first degree, two counts of attempted rape in the first degree, and one count of robbery in the first degree. (Pet. Br. 2). On May 14, 1998, Martinez was sentenced to an aggregate prison term of twenty to forty years. (Id. at 6).
On January 13, 2000, the Appellate Division, First Department, unanimously affirmed Martinez's conviction. People v. Martinez, 703 N.Y.S.2d 431 (1st Dep't 2000). On March 30, 2000, the New York Court of Appeals denied Martinez's application for leave to appeal. People v. Martinez, 94 N.Y.2d 922 (2000). No petition for certiorari in the United States Supreme Court was filed with respect to Martinez's direct appeal. (Pet. Mot. ¶ 9(f)).
On December 23, 2002, Martinez filed a pro se motion pursuant to NYCPL § 440.10. On February 7, 2003, the trial court denied the motion. (See Order dated Feb. 7, 2003).
On April 7, 2003, Martinez moved for a writ of error coram nobis in the Appellate Division. This was denied by the Appellate Division on November 30, 2004. People v. Martinez, 786 N.Y.S.2d 373 (1st Dep't 2004). The New York Court of Appeals denied Martinez's leave to appeal that decision on April 6, 2005. People v. Martinez, 4 N.Y.3d 855 (2005).
Martinez initially submitted this § 2254 motion to this Court on August 4, 2005. He alleges, inter alia, that he received ineffective assistance of appellate counsel. (Pet. Mot. ¶ 12). On October 31, 2005, then-Chief Judge Mukasey ordered Martinez to file an amended petition stating (1) why his petition should not be dismissed as untimely, (2) which of his habeas grounds he exhausted in state court, and (3) facts that would show that his delay in filing was excusable. (Order dated Oct. 31, 2005).
On December 19, 2005, Martinez submitted an amended petition, where he explained in more detail the circumstances of his prior state court proceedings, and conceded that all of his claims were time-barred except for the ineffective assistance of counsel claim. (Am. Pet. ¶ 13). Judge Mukasey found that Martinez's § 2254 petition was untimely,*fn1 but gave him leave to amend his petition a second time to allow him to state facts supporting his claim that equitable tolling should apply to his ineffective assistance of counsel claim. (Order dated May 11, 2006, at 2-3).
On July 4, 2006, Martinez filed this amended petition. Martinez does not contest that his petition is untimely.*fn2
Rather, he alleges that equitable tolling should apply because he exercised "reasonable diligence" in requesting legal assistance, which was repeatedly denied by the Department of Corrections. (Second Am. Pet. ¶ 14). He also contends that the lack of Spanish-language legal materials, Spanish-speaking clerks, and Spanish interpreters at his prison library prevented him from exercising his legal rights because he does not speak English. (Id.).