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Ocampo v. Suffolk County Superior Court

April 19, 2010

JUAN OCAMPO, PETITIONER,
v.
SUFFOLK COUNTY SUPERIOR COURT, RESPONDENT.



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

ORDER

On August 13, 2006, Juan Ocampo ("Petitioner" or "Ocampo") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he received an illegal sentence and asking the Court to restore his status as a legal permanent resident. For the reasons set forth below, Ocampo's petition for a writ of habeas corpus is denied in its entirety.

BACKGROUND

On June 1, 1982, Petitioner was indicted by a Suffolk County Grand Jury under Indictment No. 1418-82 for one count of Criminal Sale of a Controlled Substance in the First Degree and one count of Criminal Possession of a Controlled Substance in the First Degree, both class A-1 felonies.

On July 26, 1982, Petitioner pleaded guilty to count one, as amended to Criminal Sale of a Controlled Substance in the Second Degree, a class A-II felony, in satisfaction of the indictment. On August 26, 1982, Petitioner appeared with counsel in the Supreme Court of Suffolk County (Jaspan, J.), and was sentenced to an indeterminate term of imprisonment from five years to life. Petitioner was advised of his right to appeal and remanded into custody. A Spanish interpreter participated in this proceeding. See plea minutes 07-3445 dated 7/26/82. Petitioner never filed or perfected any direct appeal from his judgment of conviction. See Pt'r application for a writ of habeas corpus, civil cover sheet (Docket #1, Attach. 1).

DISCUSSION

I. Petitioner's Writ Is Untimely.

The one year statute of limitations under the 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 provides, in pertinent part:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 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 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 ...


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