The opinion of the court was delivered by: Seybert, District Judge
Pro se Petitioner Donald Platt ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 27, 2005. Respondent, Robert Ercole, Superintendent of the Green Haven Correctional Facility, moves to dismiss on the ground of untimeliness. For the reasons set forth below, the petition is denied and dismissed as untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA").
On September 13, 2002, Petitioner entered a plea of guilty to a charge of murder in the second degree. Petitioner admitted that on April 4, 2002, Petitioner struck the victim, Eric Burkes, with a samurai sword, causing his death. On December 23, 2002, Petitioner was sentenced in the County Court for the State of New York, County of Suffolk, to an indeterminate term of 22 years to life. At the close of the sentencing, the Honorable James Hudson informed Petitioner that he had "the right to appeal [the] sentence imposed by filing a notice of appeal with the clerk of [the] court within thirty days of [the sentencing] date." (Trans Sentencing 44:6-9). Petitioner was further advised that if he could not afford an attorney, he could apply to the New York State Appellate Division and request an attorney for his case. Plaintiff did not filed a notice of appeal within thirty days of the date of his sentence.
On July 23, 2003, over six months after his sentence, Petitioner filed a motion in the New York State Supreme Court, Appellate Division, pursuant to New York Criminal Procedure Law § 460.30 ("460.30") for an extension of time to file his appeal. In his motion, Petitioner argued that he "filed a timely notice of appeal on January 17, 2003" but had "not received any response. . . ." On October 23, 2003, the court denied Petitioner's motion for an extension of time.
On December 16, 2003, Petitioner filed a motion for reconsideration of the order denying an extension of time to file a notice of appeal. In his motion for reconsideration, Petitioner argued that, at the time of his sentencing, Petitioner's counsel informed him that he would file a notice of appeal on Petitioner's behalf. Petitioner argued that defense counsel made this assertion on the record, and that Petitioner had no basis to believe that his counsel would not file the notice of appeal.*fn1 On February 5, 2004, the Appellate Division denied Petitioner's motion for reconsideration.
On December 27, 2005, Petitioner filed an application for a writ of habeas corpus. Petitioner argued that he received ineffective assistance of counsel because his counsel failed to file a notice of appeal, despite having allegedly informed Petitioner that he would do so. On March 16, 2006, Petitioner asked this Court to stay his Petition while he returned to the state court to exhaust his ineffective assistance of counsel claim. This Court granted Petitioner's stay on March 17, 2006.
Thereafter, Petitioner filed a motion in the County Court for the State of New York, Suffolk County arguing ineffective assistance of counsel based on the claim that Petitioner's attorney did not investigate a medical defense premised on Petitioner's diabetic condition. On January 3, 2007, the County Court issued a decision denying Petitioner's 440.10 motion. On March 14, 2007, the Appellate Division denied Petitioner's application for leave to appeal the denial of the 440.10 motion.
Petitioner filed an Amended Petition for a writ of habeas corpus on April 9, 2007. In his Amended Petition, Petitioner states that he did not file "a direct appeal, but [filed] a collateral attack via a CPL 440.10 motion." The Amended Petition claims ineffective assistance of counsel based upon the defense counsel's failure to raise Petitioner's diabetic condition and high blood-sugar level as a defense. Petitioner states that his prior claim of ineffective assistance of counsel based on counsel's failure to file a notice of appeal "has been rendered moot with the acceptance by the lower courts of [Petitioner's] CPL § 440.10 motion."
I. Petitioner's Writ Is Untimely
The one year statute of limitations under the AEDPA applies to all state convictions that became final after April 24, 1996. See 28 U.S.C. § 2244(d)(1); Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed. 2d 48 (1997).
The AEDPA limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...