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Escalante v. Brown

September 21, 2009

LUIS ESCALANTE, PETITIONER,
v.
WILLIAM BROWN, RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

On May 16, 2008, Luis Escalante ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and on July 25, 2008, Petitioner filed an Amended Petition. The Amended Petition argued that Petitioner received ineffective assistance of counsel and that Petitioner had been unlawfully subject to a post-release supervision period after his sentencing in violation of Petitioner's Fourteenth Amendment rights.

On July 30, 2009, this Court dismissed Petitioner's post-release supervision claims as moot because the procedurally infirm term of post-release supervision had been lifted, the matter was remitted to the trial court, and the trial court properly re-sentenced Petitioner to a post-release supervision term. The Court granted Petitioner thirty days to show cause, via written affirmation, why his remaining claim for ineffective assistance of counsel should not be dismissed as time-barred. Over thirty days have passed, and Petitioner has not responded. For the reasons stated below, the Court dismisses Petitioner's ineffective assistance of counsel claim as time-barred.

DISCUSSION

Petitioners seeking habeas corpus relief pursuant to 28 U.S.C. § 2244 must file their petitions within one year of the date that their convictions became final. The one year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("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 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).

The AEDPA provides for the tolling of the one-year limitations period for that "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." See 28 U.S.C. § 2244(d)(2).

Here, the Appellate Division affirmed Petitioner's judgment of conviction on September 8, 2003. People v. Escalante, 764 N.Y.S.2d 197 (2d Dep't 2003). Although Petitioner claims that he filed an appeal, and that leave to appeal was denied, there is no record of Petitioner having done so. In any event, Petitioner did not file a 440.10 motion until August of 2006. This motion was denied on October 26, 2006. Thereafter, Petitioner filed a 440.20 motion on August 15, 2007, which was denied on November 27, 2007. Even if the Court were to toll the time during which these motions were pending, it is clear ...


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