The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Antonio Jones ("Jones" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial in Erie County Court on two counts of murder in the second degree (intentional and felony), two counts of burglary in the first degree, one count of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the fourth degree. Jones was sentenced on May 31, 1996, to an aggregate prison term of forty-two and one-half years to life in prison and is currently incarcerated. The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
II. Timeliness of the Petition
In opposition to the petition, respondent has asserted the defense that of untimeliness. Notwithstanding one error in respondent's calculations, it does appear that Jones' petition is untimely, as discussed further below.
Pursuant to 28 U.S.C. § 2244(d)(1), a one-year period of limitations applies to an application for a writ of habeas corpus. For most petitioners, including Jones, this period runs from the date on which the judgment of conviction became final. 28 U.S.C. § 2244(d)(1)(A).
Here, the parties do not dispute that Jones' conviction became final on June 18, 2004.
See Williams v Artuz, 237 F.3d 147, 151 (2d Cir. 2001), cert. denied, 534 U.S. 924 (2001). Absent any statutory tolling for collateral state-court applications for post-conviction review, see 28 U.S.C. § 2244(d)(2), Pratt v. Greiner, 306 F.3d 1190, 1191 (2d Cir. 2002), the one-year statute of limitations therefore would have expired on June 18, 2005.
Here, the limitations period ran from June 18, 2004, until March 2, 2005 (i.e., 257 days), when Jones filed a petition for a writ of error coram nobis with the Appellate Division. Respondent argues that the petition ceased to be "pending" within the meaning of 28 U.S.C. § 2244(d)(2), after the Appellate Division denied coram nobis relief on May 26, 2005. Respondent is incorrect. Previously that had been true, but the law in New York changed in 2002 to allow defendants discretionary appeals from orders of the Appellate Division deny coram nobis relief based on requests for ineffective assistance of appellate counsel. See People v. Stultz, 2 N.Y.3d 277, 281, 778 N.Y.S.2d 431, 810 N.E.2d 883 (2004); 2002 N.Y. Laws ch. 498, § 1 (effective Nov. 1, 2002), codified at N.Y. CRIM. PROC. LAW § 450 .90(1) (providing for appeals from "an order granting or denying a motion to set aside an order of an intermediate appellate court on the ground of ineffective assistance or wrongful deprivation of appellate counsel"). See N .Y.Crim. Proc. Law § 450.90(1). This change in the law clearly was applicable to Jones; his filing of the coram nobis petition itself post-dated the change in the law by nearly three years. See Castro v. Fisher, No. 04 Civ.346 DLC, 2004 WL 2525876, at *8 (S.D.N.Y. Nov. 8, 2004). Indeed, his coram nobis application would not have been fully exhausted had he not sought leave to appeal from the New York Court of Appeals. See id.
Jones' limitations period ran again from September 28, 2005, until October 17, 2005 (i.e., 19 days), when Jones filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10, in the court of conviction. This was denied by the trial judge, and the Appellate Division denied leave to appeal on April 24, 2006. That motion ceased to be pending when the Appellate Division denied leave to appeal, as New York does not provide for a further appeal from such an order. See N.Y. CRIM. PROC. LAW § 450.90(1). By this time, 276 (257 19) days had run against the one-year limitations period.
The clock commenced running again on April 24, 2006, and ran until September 27, 2006, the date on which Jones signed the petition and handed it over to prison officials for mailing, and the date the petition is deemed have been filed with the Court under the prisoner mailbox rule. Thus, an additional 156 days elapsed between the time his last properly-filed state-court application ceased to be "pending" and the filing of Jones' federal habeas petition. This time must be counted against the one-year period, making a total of 432 (257 19 156) days chargeable against Jones. Thus, after deducting statutory tolling, petitioner filed the instant petition 432 days after his conviction became final, or 77 days beyond the end of the one-year limitations period.
In his reply papers filed after respondent raised the defense of untimeliness, Jones conceded that his petition was untimely. However, he argues that he is entitled to equitable tolling of the statute of limitations because he was denied access to his legal materials by prison officials. See Petitioner's Reply Memorandum of Law ("Pet'r Reply Mem.") (Docket No. 16).
The Second Circuit has held that equitable tolling is permissible under the 1996 amendments to the federal habeas statute, see Smith v. ...