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Grant v. Riley

March 31, 2010

JAMES L. GRANT, PETITIONER,
v.
J. RILEY, D.A., AND E.M. RAPPAPORT, JUDGE, RESPONDENTS.



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

MEMORANDUM AND ORDER

James L. Grant petitions for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a judgment of the New York State Supreme Court, Kings County. Grant was convicted of murder and attempted murder in 1990. The respondents object that the petition was filed beyond the applicable statute of limitations. For the reasons set forth below, the petition is dismissed as untimely.

BACKGROUND

In June 1987, Grant shot and killed Cathleen Balance, his wife, and shot his step- daughter, Cheryl Balance.*fn1 In April of 1990, a jury convicted Grant of second-degree murder and second-degree attempted murder. The judge sentenced Grant to two consecutive terms of imprisonment: fifteen years to life for the murder, and five to fifteen years on the attempted murder count. On direct appeal, the Appellate Division, Second Department affirmed the judgment of conviction. People v. Grant, 587 N.Y.S.2d 186 (2d Dep't 1992). On February 10, 1993, a judge of the New York Court of Appeals denied leave to appeal from the Second Department's decision. People v. Grant, 595 N.Y.S.2d 739 (1993) (Smith, J.).

Since his judgment of conviction became final, Grant has moved five times in state court to vacate the judgment pursuant to N.Y. Criminal Procedure Law § 440.10:

* The first motion was dated March 26, 1993 and was denied by decision dated July 21, 1993. Leave to appeal to the Appellate Division was denied on November 22, 1993.

* The second motion was dated July 10, 1996 and was denied on January 28, 1997.

* The third motion was received by the government on February 4, 1998 and was denied on April 20, 1998. Leave to appeal to the Appellate Division was denied on June 24, 1998. Grant moved for reargument on his application for leave to appeal; that was denied on September 18, 1998. On November 18, 1998, Grant's application for a further appeal to the Court of Appeals was dismissed.

* Grant made a fourth motion to vacate the judgment of conviction on September 10, 2003, which was denied on November 10, 2003. Leave to appeal was denied on September 17, 2004.

* In addition, Grant filed a fifth motion on October 30, 2009. That motion is still pending before the Supreme Court, Kings County.

Grant's federal habeas petition is dated November 23, 2009.

DISCUSSION

In 1996, Congress imposed a one-year statute of limitations on habeas petitions attacking state-court convictions. See 28 U.S.C. § 2244(d)(1). Grant seeks to challenge a conviction that became final before the statute of limitations went into force on April 23, 1996.*fn2

Under Second Circuit precedent, Grant thus had a one-year grace period to file a federal habeas petition, beginning on that date. See Ross v. ...


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