The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Petitioner is appearing pro se, on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court has before it Respondent's motion to dismiss Petitioner's habeas petition, (Dkt. No. 7) and Petitioner's application for the appointment of counsel, (Docket Number ("Dkt. No.") 11).
For the reasons stated below, the Court DENIES Respondent's motion to dismiss and DENIES Petitioner's application for the appointment of counsel without prejudice. As ordered below, Respondent shall file an answer to the petition; thereafter, Petitioner may renew his application for appointment of counsel.
Petitioner Raymond Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 14, 2007 (the "habeas petition").*fn1 (Dkt. No. 2.) At that time, Petitioner also applied for the appointment of counsel pursuant to 18 U.S.C. 3006A(g). (Dkt. No. 3.)
The Court ordered Respondent to file an answer pursuant to Rule 4 of the Federal Rules Governing Section 2254 Cases (the "§ 2254 Rules"), (Dkt. No. 4). Subsequently, the Court denied Petitioner's application for counsel without prejudice to renew it after Respondent answered. Order, March 3, 2008 (Dkt. No. 6).
Instead of an answer, Respondent filed a motion to dismiss the habeas petition in which it argued that the petition was filed after the relevant statute of limitations had run. (Dkt. No. 7.)
Petitioner filed an affirmation in opposition, arguing that the statute of limitations should be equitably tolled because certain legal papers he contends he needed to prepare his habeas petition were lost when he was transferred between correctional facilities. (Dkt. No. 9.) Petitioner thereafter renewed his application for the appointment of counsel pursuant to 18 U.S.C. 3006A(g). (Dkt. No. 11.)
Respondent replied, arguing that Petitioner had not alleged sufficient grounds for equitable tolling.*fn2 (Dkt. No. 10.)
For the purpose of deciding Respondent's motion to dismiss, the Court assumes that the facts stated in Petitioner's habeas petition and affirmation are true.*fn3
On August 9, 2001, Petitioner was sentenced to a term of imprisonment from fifteen years to life based on his guilty plea to murder in the second degree.*fn4
On October 29, 2002, Petitioner moved the trial court to vacate the judgment resulting from his guilty plea, pursuant to New York Criminal Procedure Law ("CPL") § 440.10. The trial court denied this motion on April 28, 2003.
Petitioner also appealed the judgment based on his guilty plea. The New York State Appellate Division, First Department (the "First Department"), affirmed this judgment on December 14, 2004. See People v. Brown, 13 A.D.3d 145 (1st Dept. 2004). Leave to appeal the affirmance was denied on March 11, 2005. See People v. Brown, 4 N.Y.2d 828 (2005).
On June 24, 2004, during the time Petitioner's appeal to the First Department was pending, he again moved the trial court to vacate the judgment resulting from his guilty plea, pursuant to CPL § 440.10 (Petitioner's "second § 440.10 motion"). On August 5, 2004, the trial court denied this second § 440.10 motion.*fn5
Soon thereafter, the trial court granted reargument, based on additional arguments Petitioner had raised. On August 12, 2004, the trial court again denied Petitioner's second § 440.10 motion.
On October 21, 2004, Petitioner appealed the denial of his second § 440.10 motion. On December 22, 2005, the First Department affirmed the trial court's denial of this motion. On April 19, 2006, the New York State Court of Appeals denied ...