The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Ronnie Walker ("Walker") filed this habeas petition pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court (Monroe County) on June 30, 1998. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
The conviction at issue stems from an incident that occurred on January 23, 1998, at Josh Lofton High School, in the City of Rochester, where Walker and the victim were students. Walker shot the victim in the neck as the victim was getting off the school bus. The victim survived, although a bullet remained lodged in his neck until about a month and a half after the incident, when it was successfully removed through surgery. Walker was convicted following a jury trial of assault in the first degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree (two count) and initially sentenced to a term of imprisonment of 15 to 20 years.
Walker, through counsel, filed a direct appeal with the Appellate Division, Fourth Department, of New York State Supreme Court. On May 2, 2001, the Appellate Division issued a unanimous decision and order modifying the judgment of conviction. The state court concluded that the evidence with respect to assault in the first degree was legally insufficient to establish that the victim sustained a serious physical injury as defined in N.Y. Penal Law § 10.00(10) because "[t]he injury sustained by the victim did not create a substantial risk of death or 'cause death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ[.]'" People v. Walker, 283 A.D.2d 912, 913, 725 N.Y.S.2d 259 (App. Div. 4th Dept. 2001) (quoting N.Y. PENAL LAW § 10.00(10)). Accordingly, the Appellate Division modified the judgment against Walker by reducing the conviction of assault in the first degree to assault in the third degree, and vacating the sentence imposed thereon. (Id. citation omitted). Because the conviction of first degree assault was therefore invalid, the Appellate Division determined that the conviction of criminal use of a firearm in the first degree, which requires commission of a class B violent felony offense while possessing a deadly weapon, also could not stand. Id. (citations omitted). The court further modified the judgment by reversing the conviction of criminal use of a firearm in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment. Walker's remaining contentions on appeal were summarily dismissed as without merit. Id. The matter was remitted to the trial court for re-sentencing on the conviction of assault in the third degree. Id.
Walker was re-sentenced on June 6, 2001, on the third degree assault charge to a term of one year set to run concurrently with his sentences on the remaining three weapons-possession convictions. The re-sentencing s reduced his overall sentence, as the first degree assault conviction (which had been reduced to assault in the third degree) had carried the longest sentence. Thus, after the re-sentencing, Walker's longest sentence was 71/2 to 16 years on the second degree criminal possession of a weapon conviction, Walker did not file a timely notice of appeal. He did file a number of motions in state court before filing his federal habeas petition on August 26, 2004.*fn1 See Petition (Docket No. 1). As grounds for habeas relief, Walker contests the length of the prison term imposed upon re-sentencing as "harsh and excessive" and argues that trial counsel was ineffective. In particular, Walker asserts that his attorney allegedly promised that if allowed to represent him during re-sentencing, counsel would make certain that Walker was released.
In his answer to the petition, respondent argues that the petition should be dismissed as untimely, or, in the alternative, as without merit. See Respondent's Memorandum of Law (Docket No. 16-1). Respondent also argues that Walker's sentencing claim is not cognizable on federal habeas review and that his ineffective assistance claim is unexhausted because he failed to present it to the New York state courts. See id. (Docket No. 16-1).
For the reasons that follow, the petition is dismissed because it is untimely. Moreover, Walker is not entitled to have the statue of limitations period equitably tolled.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, amended the federal habeas statute by imposing a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction.
See 28 U.S.C. § 2244(d)(1). In most cases, and in Walker's case in particular, the limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2224(d)(1)(A). "The 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 toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2); see also Artuz v. Bennett, 531 U.S. 4, 8-11 (2000), affirming Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999). The pendency of an earlier habeas petition filed in federal court, however, does not toll the limitations period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Moreover, the Second Circuit has held that the "proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (emphases added); accord Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002).
In this case, the one-year limitations period began running on July 6, 2001, when Walker's time for filing a notice of appeal from his judgment of conviction expired. Bethea, 293 F.3d at 578 (citing N.Y. CRIM. PROC. LAW § 460.10(1))*fn2 ; see also Raynor v. DuFrain, 28 F. Supp.2d 896, 898 (S.D.N.Y. 1998). In other words, July 6, 2001, was the date of "the expiration of [petitioner's] time for seeking [direct] review," pursuant to 28 U.S.C. § 2244(d)(2)(A), and started the statute of limitations clock which would expire one year later, on July 6, 2002. In the absence of any ...