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Moore v. Warden

April 19, 2010

ARTHUR MOORE, PRO SE, PETITIONER,
v.
WARDEN, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

Petitioner Arthur Moore brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is granted leave to proceed in forma pauperis. For the reasons set forth below, petitioner is directed to submit an affirmation, on or before May 24, 2010, showing cause why the petition should not be dismissed as time-barred.*fn1

BACKGROUND

On June 9, 1997, petitioner was convicted of rape, sexual abuse, incest, and endangering the welfare of a child, and was sentenced to an indeterminate term of 12 1/2 to 25 years imprisonment. He appealed his conviction to the New York State Supreme Court, Appellate Division, Second Department, which modified the judgment, and affirmed the conviction as modified on July 19, 1999. See People v. Moore, 263 A.D.2d 517 (2d Dept. 1999). His application for leave to appeal to the New York State Court of Appeals was denied on October 1, 1999. See People v. Moore, 94 N.Y.2d 799 (1999). Petitioner did not seek a writ for certiorari with the United States Supreme Court. At some point, petitioner also filed a petition for a writ of error coram nobis, which the Appellate Division denied on December 27, 2005. See People v. Moore, 24 A.D.3d 800 (2d Dept. 2005).*fn2

The court received the instant Petition on August 12, 2009. Regarding the delay in initiating this action, petitioner alleges that his appellate counsel failed to inform him about his federal right to habeas review, and that the nature of his conviction made it difficult to find a prison law clerk to aid him in the preparation of his Petition, which he needed because of his limited education.

DISCUSSION

I. The AEDPA Statute of Limitations

In enacting the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress established a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). The AEDPA provides that the limitation period shall run 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). If a "properly filed" application for state post-conviction or other collateral review with respect to the judgment of conviction was "pending" at any time during that one-year period, the time during which this application was pending does not count toward the one-year period. 28 U.S.C. § 2244(d)(2).

The AEDPA statute of limitations is not jurisdictional and may be equitably tolled. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (per curiam), cert. denied, 531 U.S. 840 (2000). "Equitable tolling, however, is only appropriate in 'rare and exceptional circumstances.'" Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001), cert. denied, 535 U.S. 1017 (2002) (quoting Smith, 208 F.3d at 17). A petitioner "must demonstrate that he acted with 'reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances ...


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