The opinion of the court was delivered by: John G. Koeltl, District Judge
This is a motion to dismiss a petition for habeas corpus as untimely. The petitioner, Andre Smith, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction after a jury trial on various offenses including murder in the second degree. He is currently serving a sentence of 120 years to life.
The petitioner was convicted after a jury trial in the New York State Supreme Court, New York County, of three counts of Murder in the Second Degree, one count of Robbery in the First Degree, three counts of Robbery in the Second Degree, and one count each of Criminal Possession of a Weapon in the Second and Third Degrees. Judgment was entered on July 29, 2002. The petitioner appealed, contending that his confession was involuntary, that the trial court unduly limited his questioning of prospective jurors, and that his sentence was excessive. On January 24, 2006, the Appellate Division affirmed the petitioner's conviction. See People v. Salley, 808 N.Y.S.2d 664, 665 (App. Div. 2006). Judge Graffeo of the New York Court of Appeals denied leave to appeal on March 28, 2006. See People v. Smith, 847 N.E.2d 383, 383 (N.Y. 2006). The habeas petition before the Court was received by the Pro Se office on July 19, 2007, and is considered to have been filed on July 12, 2007, the date on which the defendant declares he delivered it to prison authorities to be mailed. See Houston v. Lack, 487 U.S. 266, 273-76 (1988)(setting forth prison mailbox rule).
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. Id.
The New York Court of Appeals denied the petitioner leave to appeal his sentence on March 28, 2006. Accordingly, the judgment became final on June 26, 2006, 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)(establishing when judgment becomes final for purposes of 28 U.S.C. § 2244(d)(1)).
AEDPA's one-year statute of limitations expired one year from this date, on June 26, 2007, and the petition, filed on July 12, 2007, is therefore untimely. The petitioner argues that the petition should be deemed timely filed under the doctrine of equitable tolling.
Equitable tolling applies only "in the rare and exceptional circumstance." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)(internal quotation marks and 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)(internal citation omitted); see also McGinnis, 208 F.3d at 17 (internal citation omitted).
The petitioner offers an unusual explanation for his failure to comply with the AEDPA deadline. Based upon all of the records, including the affidavits submitted by the petitioner, it appears that the former foreperson of the petitioner's jury, Lynne Harriton, became interested in his case and was offended by the fact that the sentence for the petitioner was the same as that for his co-defendant, who allegedly pulled the trigger.
According to the petitioner, Ms. Harriton offered to acquire the assistance of legal counsel to file his § 2254 petition. The petitioner admits that he did not see the petition before it was filed. Ms. Harriton filed a petition with the Pro Se Clerk's Office on June 28, 2007. (See Ex. A to Pet'r Aff.) On July 2, 2007, the Pro Se Clerk returned the petition to Ms. Harriton and explained, according to both the petitioner and a signed affidavit submitted by Ms. Harriton, that the petition was defective because it was not signed and that the petitioner still had time, but not too much time, to submit the petition. (See Pet'r. Aff. ¶ 5; Harriton Aff. ¶ 13.) Ms. Harriton sent the returned petition to the petitioner, which he received on or about July 7, 2007. (Pet'r Aff. ¶ 6.) The petitioner corrected the petition, including eliminating certain claims which were not exhausted, and mailed a new petition on July 12, 2007, received by the Pro Se Office on July 19, 2007. (Id. ¶¶ 8, 9.)
According to his affirmation, it was the petitioner's understanding that he either had time to sign and return the petition to the Court, or that his petition was deemed filed with the Court on June 28, 2007. (Id. at ¶ 9.) The petitioner argues that the Pro Se Clerk should have entered the petition filed by Ms. Harriton on the docket pursuant to Rule 3(b) of the Rules Governing Section 2254 cases, which provides that the court clerk "must file" a petition and "enter it on the docket" regardless of whether it complies with the provisions of Rule ...