The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner James Jones seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner argues that he was not responsible for his crimes by reason of mental illness or defect and was not fit to proceed at the time of his guilty plea, and that he received ineffective assistance of counsel because his counsel failed to raise these issues.
On September 17, 1996, the petitioner entered a plea of guilty in the New York State Supreme Court, New York County, to two counts of murder in the second degree for the deaths of two women in February and June, 1995, and to one count of sodomy in the first degree and two counts of attempted sodomy in the first degree for attacks on three other women in April, October, and September, 2005. (Ex. E to Aff. of Richard Sullivan dated May 30, 2007.)*fn1 The plea was in full satisfaction of a twenty-three count indictment that included various charges arising out of the attacks on the five women and one count of criminal possession of a weapon in the first degree. The petitioner was sentenced on October 1, 1996, to twenty-five years to life on the two murder counts to run concurrently, and two to six years on each of the remaining three counts to run concurrently and consecutively to the sentences on the murder counts, so that the total sentence was twenty-seven years to life. (Ex. F.)
In December 1998, the petitioner filed a direct appeal to the New York State Supreme Court, Appellate Division, First Department. The petitioner argued only that his sentence was unduly harsh in view of his grave psychiatric problems, childhood physical abuse, and stable employment history and service record. (Ex. G.) The judgment was affirmed without opinion on April 13, 1999. People v. Jones, 689 N.Y.S.2d 595 (App. Div. 1999). The petitioner then sought leave to appeal to the Court of Appeals; the petitioner's application was denied on August 10, 1999. People v. Jones, 719 N.E.2d 940 (N.Y. 1999).
On October 23, 2003, the petitioner moved under Section 440.10 of the New York Criminal Procedure Law ("CPL") to vacate his conviction. The petitioner argued, among other grounds for his motion, that he was not fit to proceed at the time of his plea and sentence, that he was not responsible for his crimes by reason of mental disease or defect, and that he received ineffective assistance of counsel because his counsel failed to raise these issues. (Ex. M.) The court denied the motion on June 14, 2004. The court specifically found that the plea allocution minutes showed that the petitioner understood the nature of the charges, fully comprehended the meaning of the pleas, and pleaded guilty voluntarily. The court pointed out that the petitioner was represented by a team of highly experienced attorneys who, after months of psychiatric testing to determine the viability of a psychiatric defense, elected to pursue a plea rather than a psychiatric defense. The court found that the petitioner waived any psychiatric defense and that there was nothing in the record to support an argument that the petitioner was not competent at the time of his plea. (Ex. Q.)
The petitioner's subsequent application for leave to appeal to the Appellate Division was denied on October 5, 2004. (Ex. V.) The current petition for a writ of habeas corpus is dated September 26, 2005 and was filed in the Pro Se Office of this Court on September 28, 2005.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244, imposes a one-year statute of limitations on an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). This one-year period generally runs from the date on which the judgment becomes final by the conclusion of direct review or the expiration of time to seek such review.
The New York State Court of Appeals denied the petitioner leave to appeal his sentence on August 10, 1999. Accordingly, the judgment became final on November 9, 1999, upon the expiration of the ninety-day period during which the petitioner could have sought a writ of certiorari from the United States Supreme Court. See Williams v. Artuz, 237 F.3d 147, 148-49 (2d Cir. 2001).
AEDPA's one-year statute of limitations expired one year from this date, on November 9, 2000, and the petition is therefore untimely. The time during which a properly filed application for state post-conviction or other collateral review of a conviction is pending is not counted toward the running of the statute of limitations. See 28 U.S.C. § 2244(d)(2). The petitioner did move in 2003 pursuant to CPL § 440.10 to vacate the judgment. However, that motion does not render the present habeas corpus petition timely, because that motion was filed substantially after the one-year statute of limitations had already expired. Moreover, that motion did not restart the statute of limitations. An application for state relief "does not reset the date from which the one-year statute of limitations begins to run" under 28 U.S.C. § 2244(d)(1). Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
The petitioner asks that his failure to comply with AEDPA's one-year limit be excused due to mental illness. (Petr.'s Affirmation ¶ 4.) Essentially, the petitioner seeks equitable tolling of the statute of limitations. Equitable tolling applies only "in the rare and exceptional circumstance." McGinnis, 208 F.3d at 17 (internal citation omitted). In order to qualify for equitable tolling, the petitioner must establish "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also McGinnis, 208 F.3d at 17. A petitioner's mental illness may be sufficient for equitable tolling of the statute of limitations, but only if it rendered the petitioner unable to pursue his legal rights during the relevant time period. See Rhodes v. Senkowski, 82 F.Supp.2d 160, 168--70 (S.D.N.Y. 2000) (report of magistrate judge collecting cases). The mere existence of a mental illness is ...