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Plasencia v. Barkley

September 8, 2008

FAUSTO PLASENCIA, PETITIONER,
v.
WARREN BARKLEY, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

Fausto Plasencia ("petitioner"), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner challenges his judgment of conviction on September 10, 2002 in the New York State Supreme Court, Queens County for Robbery in the First Degree and Criminal Possession of a Weapon in the Second Degree. In response to this Court's Order to Show Cause, respondent Warren Barkley ("respondent"),*fn2 submitted his opposition to petitioner's application for a writ of habeas corpus, primarily arguing that, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the petition is time barred by the one-year statute of limitations. Petitioner has not responded to respondent's opposition, despite the Order dated May 24, 2006 issued by this Court, directing that petitioner respond or the Court would consider the petition fully briefed. For the reasons set forth below, the petition is dismissed as it is barred by the one-year statute of limitations.

BACKGROUND

According to petitioner, on September 10, 2002, he pled guilty to the charges of Robbery in the First Degree, Robbery in the Second Degree, and Criminal Possession of a Weapon in the Second Degree before the New York State Supreme Court, Queens County, and was sentenced to five (5) years imprisonment and five (5) years of post-release supervision.*fn3 Petition for Habeas Corpus dated February 2, 2005 ("Pet.") ¶¶ 1-5. Petitioner indicates that his attorney advised him that he waived his right to appeal after he was sentenced,*fn4 and no appeal was filed on his behalf. Pet. ¶ 11.

Thereafter, on an unspecified date in 2004, petitioner moved for an extension of time to appeal his judgment of conviction in the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"), and on December 7, 2004, the Appellate Division denied the motion. See People v. Plasencia, No. 2004-9387 (App. Div., 2d Dep't Dec. 7, 2004), available at http://www.nycourts.gov/reporter/motions/12-07-2004_MOTION_LIST.htm (last visited July 31, 2008). Petitioner then sought leave to appeal in the New York State Court of Appeals, and on January 25, 2005, the application was denied. See People v. Plasencia, 4 N.Y. 3d 766, 825 N.E.2d 142, 792 N.Y.S.2d 10 (2005). On February 2, 2005,*fn5 petitioner filed the instant petition seeking a writ of habeas corpus, asserting that his Fourteenth Amendment rights were violated because he was coerced by his attorney to make an involuntary confession, and he was denied a pre-plea competency hearing. Pet. ¶ 11. In addition, petitioner asserts that his Sixth Amendment rights were violated because his attorney failed to advise him that he was waiving his right to appeal by pleading guilty. Id.

DISCUSSION

With the passage of AEDPA on April 24, 1996, Congress set a one-year statute of limitations for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to a state court conviction. 28 U.S.C. § 2244(d)(1). The one-year period runs from the date on which one of the following four events occurs, whichever is latest:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Respondent argues that, under subsection (A), the instant petition is untimely. The Court agrees. Because petitioner did not timely appeal his judgment of conviction, the judgment became final on October 10, 2002, when the time for seeking direct review expired. See Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (noting that N.Y.C.P.L. § 460.10(1)(a) provides a defendant thirty (30) days from the date of his or her judgment of conviction to appeal the judgment to the Appellate Division); see also Raynor v. Dufrain, 28 F. Supp. 2d 896, 898 (S.D.N.Y. 1998) (finding that the petitioner's judgment of conviction became final more than thirteen months prior to the petition being filed in federal court since petitioner did not file a timely notice of appeal, rendering the petition time barred). To be timely, this petition should have been filed in federal court on or before October 10, 2003, but it was not filed until February 2, 2005 -- nearly one year and four months after the limitations period had expired. Moreover, petitioner's motion to file a late notice of appeal in state court does not "restart" or alter the limitations period. See Bethea, 293 F.3d at 579; Raynor, 28 F. Supp. 2d at 898-99.

By Order dated May 24, 2006, the Court directed petitioner to file a reply to respondent's opposition, but no response was filed.*fn6 However, in light of petitioner's pro se status, the Court has considered whether a later date for commencing the statute of limitations applies here. Given the information provided in the petition, there is no basis for applying subsections (B) and (C) of § 2244(d)(1) or statutory tolling under § ...


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