The opinion of the court was delivered by: P. Kevin Castel, District Judge
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
In a Report and Recommendation dated August 31, 2007 (the "R & R") (Doc. #21), Magistrate Judge Ronald L. Ellis recommended the grant of so much of an amended petition for a writ of habeas corpus as seeks to have a five-year term of post-release supervision ("PRS") removed from petitioner's sentence and the denial of the remainder of the amended petition. Respondent Kenneth S. Perlman, Superintendent of Mid-State Correctional Facility, has filed timely objections. (Doc. # 20) No objections were filed by petitioner. For the reasons that follow, the Court overrules respondent's objections and adopts the R & R in its entirety.
Petitioner Charles Walker filed the amended petition on November 6, 2006 (the "Amended Petition") (Doc. # 8), alleging that a five-year term of post-release supervision ("PRS") was imposed on him administratively by the New York Department of Correctional Services ("DOCS") rather than by the sentencing court and, as a result, he was denied an opportunity to be heard in violation of his Fifth and Fourteenth Amendment rights. The Amended Petition also alleges Walker was denied the effective assistance of counsel in violation of his Sixth Amendment rights.
Walker, a predicate felony offender, pled guilty to three counts of robbery in the third degree and, on October 24, 2000, he received a determinate sentence of nine years and waived his right to appeal pursuant to the terms of a plea bargain. (Appendix, Exhibit E.) There was no mention of PRS during the sentencing proceeding despite New York law requiring that PRS be added to every determinate sentence. (Id., Exh. D at 6, 9-11.) The sentence and commitment order issued by the sentencing court reflected Walker's nine-year determinate sentence, but did not indicate that he was subject to any PRS or that he was a predicate felony offender. (Id., Exh. E) At no time was Walker told by the trial court, the government or his attorney, that he would receive a term of PRS in addition to his nine-year determinate sentence. (Amended Petition, Exh. I at 2.) After Walker began serving his sentence at the Mid-State Correctional Facility, he received a sentence computation sheet from the DOCS indicating that his sentence included five years PRS in addition to the nine-year determinate sentence he received on October 24, 2000. (Amended Petition, Exh. C.)
On March 18, 2005, the trial court amended Walker's sentence and commitment order to indicate that he was sentenced "as a second felony offender." (Appendix, Exh. E.) The amended order included no reference to PRS. (Id.)
On September 26, 2005, Walker challenged his sentence collaterally by filing a pro se motion pursuant to section 440.20 of New York's Criminal Procedure Law. Walker argued, inter alia, that the addition of PRS to his sentence by DOCS denied him of due process and that he was denied the effective assistance of counsel by virtue of his lawyer failing to inform him that his sentence would include PRS. (Id.) The motion was denied on December 13, 2005 and leave to appeal was denied by the Appellate Division, First Department on March 23, 2006.*fn1 (Amended Petition, Exh. C)
On May 16, 2006, the Court's Pro Se Office received Walker's petition for a writ of habeas corpus.*fn2 (Doc # 1) On June 14, 2006, then Chief Judge Mukasey ordered Walker to show cause why the petition should not be dismissed as time barred. (Doc. # 3) Walker complied, filed an affirmation on June 30, 2006, and then contacted the Office of the Appellate Defender and requested that they provide counsel to represent him in connection with his habeas petition. (Doc. # 4) Counsel from the Office of Appellate Defender agreed to represent Walker and entered a notice of appearance on August 28, 2006. With the Court's permission (Doc. # 6), the Amended Petition for a writ of habeas corpus was filed on Walker's behalf on November 6, 2006. (Doc. # 8.)
On March 29, 2007, I referred the Amended Petition to Magistrate Judge Ellis for a Report and Recommendation. The R & R was filed on September 4, 2007 to which respondent timely filed objections on September 9, 2007. (Doc. # 20) Walker did not file a response to respondent's objections nor did he file any objections of his own. To the full extent of respondent's objections, I have conducted a de novo review of the underlying record, including the state court transcripts. See 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P. Having done so, I adopt Judge Ellis's R & R and briefly address respondent's objections.
A one-year statute of limitation applies to a petition for a writ of habeas corpus filed "by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The relevant period of limitation begins to "run 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." Id. § 2244(d)(1)(A). As Judge Ellis correctly observed, Walker's amended sentence and commitment order is dated March 18, 2005 and that is the starting point for a finality analysis. (Appendix, Exh. E.)
No direct review of the amended sentence and commitment order was taken and, thus, it became final for section 2244(d)(1)(A) purposes on April 18, 2005. See N.Y. Crim Proc. Law § 460.10(1)(a) (appeal must be filed within thirty days of sentence). Although Walker's petition was filed between May 10, 2006 and May 16, 2006-approximately thirteen months after the time for appealing the amended sentence had expired-his post-conviction section 440.20 motion and subsequent motion for leave to appeal tolled the limitations period for more than five months. See 28 U.S.C. § 2244(d)(2) ("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 limitations under this subsection."). Tolling occurred between September 26, 2005, the day the motion was filed, and March 23, 2006, the day the Appellate Division denied Walker leave to appeal.
Respondent argues that because Walker was sentenced on October 24, 2000, the one-year period of limitation began to run on November 23, 2000, the date on which his time to file a notice of appeal expired. Respondent contends that the date of the amended sentence and commitment cannot be used as the start of the limitations period because Walker is challenging the original judgment against him, not the amended sentence and commitment order. Respondent's argument fails.
Judge Ellis's conclusion that the expiration of Walker's time to appeal the amended sentence and commitment order is the relevant event from which the limitations period should be measured is supported by the decision in Burton v. Stewart, __ U.S. __, 127 S.Ct. 793 (2007) (per curiam), which, inter alia, interpreted the statutory language setting ...