The opinion of the court was delivered by: Trager, J
Pro se petitioner Pietro Perich ("Perich" or "petitioner") brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he was deprived of (1) his right to a direct appeal and (2) his right to effective assistance of counsel. Respondent now moves to dismiss Perich's petition as time-barred under the one-year statute of limitations provided in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). For the following reasons, respondent's motion is denied.*fn1
On December 6, 2001, after a jury trial, Perich was convicted in absentia in Queens County Supreme Court of Criminal Possession of a Weapon in the Second Degree (New York Penal Law ("NYPL") § 265.03); Criminal Possession of a Weapon in the Fourth Degree (NYPL § 265.01); and Resisting Arrest (NYPL § 205.30) for menacing a prostitute with a gun. (Pet. 1; Aff. of Sharon Y. Brodt in Support of Resp't's Mot. to Dismiss ¶ 3, hereinafter "Brodt Aff.".) Perich was acquitted of the more serious charges of Robbery in the First Degree and Attempted Assault in the Second Degree. (Tr. 22, Jan. 29, 2002.)
Perich had absconded during his trial, was not present for the announcement of the verdict on December 6, 2001, and failed to appear at a sentencing hearing scheduled for January 2, 2002, and another on January 29, 2002. (Brodt Aff. ¶ 4.) At the January 29, 2002 hearing, Perich's counsel informed presiding Justice Randall T. Eng that Perich called his office the day before and indicated he wanted to turn himself in. (Tr. 5, Jan. 29, 2002.) Justice Eng declined to impose a sentence at the January 29 hearing and adjourned the matter for two days to allow the defendant another opportunity to appear in the matter. (Tr. 12, Jan. 29, 2002.) The defendant communicated with his attorney by telephone again on January 30, but did not appear in court on January 31. (Tr. 14, Jan 31, 2002.)
At the January 31 hearing, Perich was found "willfully absent," (Tr. 15, Jan. 31, 2002), and was sentenced in absentia to a term of eight years.*fn2 (Tr. 32-33, Jan. 31, 2002.) The court did not say anything to Perich's attorney about petitioner's right to appeal. (Tr. 33, Jan. 31, 2002.)
In February 2002, Perich was apprehended and later collapsed in his cell.*fn3 (Brodt Aff. ¶ 6.) At a hearing on February 15, 2002, Perich appeared "vacant" and "unresponsive," and the court ordered an Article 730 examination to determine his fitness to proceed. (Tr., Feb. 15, 2002.) The court deferred arraignment on the new bail jumping indictment "pending receipt of the results of the 730 examin[ation]" and explained that the 730 examination "will refer to both indictments." There is no evidence in the record that the court or Perich's attorney informed Perich of his right to appeal at this hearing.
On May 13, 2002, Perich appeared at a hearing addressing "open matters" including the sentencing under "indictment 3422 of 2000," which included the original robbery, assault, weapon possession and resisting arrest charges. (Tr. 2, May 13, 2002). After finding Perich fit to proceed (Tr. 2-3, May 13, 2002), Justice Eng heard from the prosecution. Asking whether she was "being heard with respect to the sentence that your Honor has already passed or . . . with respect to another issue," the prosecutor presented arguments pertinent to the sentencing for the original convictions. (Tr. 4, May 13, 2002.) The prosecutor then asked whether she should be heard on the bail jumping issue, and Justice Eng responded, "Right now I am concerned with the open sentence." (Tr. 7, May 13, 2002.)
The prosecutor objected that the sentence for the original convictions had already been passed and that the court, therefore, lacked jurisdiction to alter it. As such, the prosecution argued that "the only remedy this defendant has in terms of jurisdiction is under 440.20."*fn4 (Tr. 7-8, May 13, 2002.) Justice Eng stated that the prosecutor was addressing an issue "that has not ripened yet" and that he was giving her "an opportunity to be heard as much as you wish to be heard." (Tr. 8, May 13, 2002.)
Perich's counsel then requested that the court consider reducing Perich's sentence, arguing that the verdict on the possession of a weapon in the second degree be set aside as inconsistent with the evidence and repugnant to the verdict because Perich was acquitted of the attempted assault and robbery charges and, therefore, could not have been using the gun unlawfully. (Tr. 14-15, May 13, 2002.) The prosecutor again objected that the motion to set aside the defendant's sentence be made in writing under CPL § 440.20. (Tr. 16, May 13, 2002.) Justice Eng responded: "In reviewing the law under 330.40, a motion to set aside the verdict based upon a ground specified in subdivision one of section 330.30, it need not be in writing. That's the law." (Tr. 16, May 13, 2002.)
After hearing from Perich himself, Justice Eng determined that the sentence he originally announced on January 31 was correct and ordered the sentence executed. (Tr. 20-21, May 13, 2002.) The court clerk then advised Perich of his right to appeal the verdict within 30 days and his right to assigned counsel upon proof of inability to pay. (Tr. 21-22, May 13, 2002.)
Perich submitted a letter dated May 14, 2002 purporting to file a notice of appeal to the Appellate Division, Second Department, and requesting leave to proceed in forma pauperis, claiming that although he was able to retain counsel at trial, he was now indigent having no income while in prison. (Notice of Appeal and Request for Poor Person Relief, May 14, 2002, hereinafter "Pet.'s Ex. E.")*fn5 "A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence." CPL § 1.20(15). CPL § 440.20(1) provides, in part, that "[a]t any time after judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside sentencing upon that it was unauthorized, illegally imposed or otherwise invalid as a matter of law." Id. (emphasis added). CPL § 440.30(1) states, in part, that a "motion to vacate a judgment pursuant to section 440.10 and a motion to set aside a sentence pursuant to section 440.20 must be made in writing and upon reasonable notice to the people." Id. (emphasis added). Conversely, under CPL § 330.30(1), "[a]t any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof" on enumerated grounds. Id. (emphasis added). CPL § 330.40 provides that motions under § 330.30(1) "need not be in writing."
Respondent opposed Perich's request to proceed in forma pauperis, but did not oppose the notice of appeal as untimely. (Brodt Aff. ¶ 9; Ex. F.)
On August 23, the Appellate Division, Second Department, treating the motion as one for permission to file a late notice of appeal under CPL § 460.30, as well as for in forma pauperis relief, denied the motion in its entirety. People v. Perich, App. Div., 2d Dep't, Nos. 02-04705, 02-07366, Aug. 23, 2002, Index No. 3422/00. The court: 1) denied the branch of the motion for leave to file a late notice of appeal, 2) dismissed, "on the court's own motion, the appeal from the execution of sentence," and 3) ordered that the remaining branches of the motion be "denied as academic." Id.
On September 19, 2002, Perich, through different retained counsel, filed a motion to reargue the denial of permission to file a late notice of appeal, which respondent opposed. (Mot. for Reargument for Permission to File Late Notice of Appeal, Sept. 19, 2002; Aff. in Op. to Def.'s Mot. to Reargue, Oct. 18, 2002.) On November 7, 2002, the Second Department denied the motion. People v. Perich, App. Div., 2d Dep't, Nos. 02-04705, 02-07366, Nov. 7, 2002, Index No. 3422/00.
In a motion dated February 3, 2003,*fn6 Perich, through a third retained counsel, moved for an order recognizing the timeliness of his initial notice of appeal filed May 14, 2002, or, alternatively, permitting him to file a late notice of appeal. Respondent opposed that motion on the grounds that it was actually a motion to reargue the Second Department's order of August 23, and as such, should be deemed untimely. (Brodt Aff. ¶¶ 13-15.) As it had in its opposition to the first motion to reargue, respondent also contended that the petitioner's motion was meritless. (Brodt Aff. ¶¶ 16.) On March 12, 2003, the Appellate Division denied this third motion.*fn7 Brodt Aff. ¶ 17; Pet.'s Mem. of Law, June 7, 2005, at 2.)
In a letter dated April 23, 2003, Perich sought leave to appeal to the New York Court of Appeals from the three orders of the Appellate Division dated August 23, 2002, November 7, 2002 and March 12, 2003. (Brodt Aff. ¶ 18.) Respondent opposed the application on the ground that the orders were not appealable. (Brodt Aff. ¶ 18.) On July 18, 2003, the Court of Appeals, without opinion, denied leave to appeal as to the August 23, 2002 order and dismissed the leave to appeal motions of March 12 and November 7, 2003 orders. People v. Perich, 100 N.Y.2d 585, 764 N.Y.S.2d 396, 793 N.E.2d 488 (2003) (Rosenblatt, J.) (Table).
On January 23, 2004, Perich moved for a writ of error coram nobis in the Appellate Division on the ground that his trial attorney was ineffective for failing to timely file a notice of appeal on his behalf. (Brodt Aff. ¶ 19.) Respondent argued that the relief Perich sought was not cognizable on a state coram nobis claim. (Brodt Aff. ¶ 20.) On February 14, 2005, the Second Department denied the writ, stating that the "appellant has failed to establish that he was denied effective assistance of appellate counsel." People v. Perich, 15 A.D.3d 505, 789 N.Y.S.2d 435 (2d Dep't 2005).
On March 18, 2005, petitioner filed a letter seeking leave to appeal the Appellate Division's February 14 order. The Court of Appeals dismissed the application on May 6, 2005. People v. Perich, 4 N.Y.3d 889, 798 N.Y.S.2d 734 (2005) (Read, J.) (Table). Finally, petitioner filed the instant petition for a writ of habeas corpus on May 31, 2005.
Respondent now moves to dismiss the petition as time-barred under AEDPA's one-year statute of limitations. 28 U.S.C. § 2244(d)(1). Respondent argues that petitioner's conviction became final on March 2, 2002, more than three years before the instant petition was filed, and that even when days from this period during which "properly filed" post-conviction motions were "pending" under 28 U.S.C. § 2244(d)(2) are subtracted, petitioner is still unable to come within the one-year deadline.
AEDPA Statute of Limitations Overview AEDPA provides a one-year statute of limitations for filing an application for a writ of habeas corpus. The statute of limitations begins to 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 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).
However, in calculating the one-year period, "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted." 28 U.S.C. § 2244(d)(2).
Thus, whether AEDPA's one-year statute of limitations bars Perich's claim requires a two-step determination of first, which date begins the limitations period under § 2244(d)(1), and second, how many days during which any "properly filed" applications for post-conviction or other collateral review were "pending" tolled the limitations period under § 2244(d)(2). In order to meet the statute of limitations, the total number of days that elapsed from the date determined to trigger the statute of limitations under step one until the filing of the ...