The opinion of the court was delivered by: David N. Hurd, United States District Judge
MEMORANDUM DECISION and ORDER
Petitioner Frederic C. Carpenter ("petitioner" or "Carpenter), has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a motion to proceed in forma pauperis. (Dkt. Nos. 1, 2). Petitioner has paid the five dollar filing fee. (Dkt. No. 1). He seeks to challenge an August 6, 1999, conviction for a probation violation rendered in Cortland County Court.*fn1 Petitioner was found guilty by the court and sentenced to four to twelve years imprisonment.
The Appellate Division, Third Department, affirmed the conviction on December 21, 2000. People v. Carpenter, 278 A.D.2d 672, 717 N.Y.S.2d 740 (3d Dep't 2000). The New York Court of Appeals denied leave to appeal on April 16, 2001. People v. Carpenter, 96 N.Y.2d 798, 726 N.Y.S.2d 376, 750 N.E.2d 78 (2001). In his application, petitioner indicates that he has filed a variety of post-conviction proceedings, all of which have been denied. Pet. at 4-10.
Petitioner raises five grounds for relief:
(1) Petitioner's sentence is "null and void" because the Cortland County Court had no jurisdiction to decide the probation violation or to re-sentence him. (Pet. at pp.11-13).
(2) The People breached their "contract" to sentence petitioner to five years probation and failed to enforce the "expiration" of that sentence. (Pet. at pp.14-16).
(3) Petitioner was denied the right to appeal the "purported order" transferring the supervision of his probation to Cortland County. (Pet. at pp.17-18).
(4) The Appellate Division erred in affirming the dismissal of petitioner's state habeas petition based on a procedural default (Pet. at pp.18-23).
(5) Petitioner was denied his right to access to courts and his right to confront his accusers. (Pet. at pp.23-25).
Petitioner has included approximately four hundred pages of state court papers with his application.
In the habeas application, in addition to listing his direct appeal, petitioner has listed the various state court petitions and post-conviction motions that he has filed. (Pet. at pp.3-10). In reviewing petitioner's list, it was court discovered that petitioner has filed a previous application for habeas corpus relief in this court. See Carpenter v. Rabideau, 9:04-CV-1295. On January 4, 2005, the Honorable Lawrence E. Kahn dismissed petitioner's previous application as barred by the one year statute of limitations, created by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").*fn2 Id. (Dkt. No. 9 of 04-CV-1295).
Judge Kahn found that the New York Court of Appeals denied leave to appeal on April 16, 2001. Id. at 2. Judge Kahn then calculated that ninety days from April 16, 2001 would be "on or about July 15, 2001." Id. at 3. Thus, petitioner's conviction became final on July 15, 2001, and the one year statute of limitations began to run on that date. The statute of limitations would, thus, have expired on July 15, 2002. Judge Kahn further found that petitioner did not file his first post-conviction motion pursuant to N.Y. Crim. Proc. Law § 440 until August 27, 2002. Id. at 3. Thus, by the time that petitioner filed his first section 440 motion, his statute of limitations under the AEDPA had already expired, and Judge Kahn held that the petition was time-barred. Petitioner concedes this fact in his current habeas application.
In Judge Kahn's decision, he also considered whether petitioner would be entitled to "equitable tolling" of the statute of limitations. Carpenter v. Rabideau, 04-CV-1295 (Dkt. No. 9 at 4). In "rare and exceptional circumstances," the court may equitably toll the limitations period. Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004). In order to warrant equitable tolling, petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008)(quoting Pace v. DiGuglielmo, 544 U.S. 408, ...