The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Jacinto Cedeno ("Cedeno" or "petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his state custody pursuant to a judgment of conviction entered in Supreme Court, Monroe County, State of New York. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
Cedeno was charged under two indictments with multiple felony drug charges (two counts of first-degree criminal sale of a controlled substance, two counts of third-degree criminal possession of a controlled substance, and two counts of first-degree criminal possession of a controlled substance). While released on bail, prior to trial, Cedeno fled the jurisdiction and failed to appear for his trial. Trial proceeded without him and he was convicted on January 30, 1996. He was sentenced in absentia to a term of 50 years in state prison. Cedeno was ultimately apprehended in March 2005, and was remanded to the custody of the Department of Corrections of the State of New York to begin serving his sentence.
On December 22, 2005, petitioner filed the instant habeas petition. The sole ground raised such as follows: "petitioner was denied [sic] the Due Process Clause of the 14 th amendment, which guarantees a criminal appellate pursuit [of] a first appeal as of right. Griffin v. Illinois, 351U. S. 12, 20 (1956); and the denial of his constitutional right to be assigned with [sic] counsel to represent him during the appeal." Petition, ¶13 (Docket No. 1).
By order filed January 25, 2006, petitioner was ordered show cause why his petition was not barred by the statute of limitations imposed upon habeas petitions under 28 U. S.C. § 2244(d)(1). Petitioner filed a response to the order on March 3, 2006. Petitioner admits that in 1995, during pretrial proceedings, he was released on bail pending resolution of his case. He admits that he left the United States and traveled to the Dominican Republic. Petitioner claims that he did not know he could not leave the jurisdiction because the state trial court allegedly failed to give him " Parker*fn1 warnings"--that is, the judge did not inform him that if he failed to return to appear in court is scheduled, he could be tried convicted and sentenced in absentia.*fn2
Petitioner also claims that "extraordinary circumstances" prevented him from discovering he had been convicted and sentenced during the nearly nine-year period that he was absent. However, he did not specify what these circumstances were in his response to the order to show cause. See Docket No. 7.
Based upon the information available to the court provided in Petitioner's response, the Court (Skretny, D.J.) found that the timeliness of the petition was still in question because it was unclear as to when the conviction became final; petitioner indicated that counsel had filed notices of appeal on indictments on trial. Judge Skretny found that the conviction arguably would not be final until such time as those appeals were dismissed for, e.g., petitioner's failure to prosecute. In addition, petitioner had raised arguments regarding timeliness pursuant to 28 U.S.C. § 2244(d)(1)(D), on the basis that the fact of his conviction could not have been discovered earlier through the exercise of due diligence. Finding that petitioner had raised timeliness issues that could not be found frivolous without the benefit of a response, the Court directed both parties to address both the date on which the conviction became final for the purpose of the statute of limitations calculation under 28 U.S.C. § 2244(d)(1), including when any state court appeals were dismissed, and when the factual predicate could have been learned through the exercise of due diligence; as well as the question of equitable tolling. See Docket No. 7.
Respondent subsequently filed a response addressing the timeliness issue, the equitable tolling issue, the merits of petitioner's underlying habeas claim, and the propriety of the state appellate court's application of the fugitive disentitlement doctrine.*fn3 See Docket No. 13.
Respondent explained the chronology of events relevant to the timeliness issue. While petitioner was out of the country, his trial counsel had filed a notice of appeal of the conviction on February 1, 1996. The notice was timely filed in the Appellate Division, Fourth Department, of New York, State Supreme Court. Trial counsel, however, has since stated that as of approximately December 1995, he no longer knew of petitioner's whereabouts, and therefore could not perfect petitioner's appeal. Consequently, on April 1, 1998, the prosecution filed a motion to dismiss the appeal based upon counsel's failure to timely perfect the appeal and petitioner's unavailability to obey the mandate of the appellate court, due to his having deliberately absented himself from the jurisdiction. Respondent notes that service of the prosecution's motion to dismiss was attempted on petitioner at his last known address; however, the documents were returned to sender in May of 1998. The Appellate Division accordingly dismissed petitioner's notice of appeal. See People v. Burger, 70 N.Y.2d 828, 828 (N.Y. 1987) ("[The] [m]otion by the People to dismiss [the] appeal [is] granted and [the] appeal dismissed upon the ground that defendant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance.") (citations omitted).
Meanwhile, a bench warrant had been issued for Cedeno's arrest. On March 21, 2005, while traveling in the Caribbean Islands using an admittedly false name and false passport, petitioner was arrested by United States immigration officers and extradited to Rochester. Petitioner states that he did not learn that he had been convicted in absentia until he was sent to Attica correctional facility to begin serving his sentence in April 2005.
At this time, approximately 9 years after his conviction, he filed a motion pursuant to New York Criminal Procedure Law § 460.30 in the Appellate Division, seeking permission to file a late notice of appeal. Petitioner claimed that he was unaware that his trial counsel had filed notices of appeal both indictments. (Petitioner's trial attorney also filed a motion in the Appellate Division, attempting to reinstate the dismiss notice of appeal so that he could challenge petitioner sentenced on the basis that it was harsh and excessive. The Appellate Division denied this motion.)
According to statute, a motion to file a late notice of appeal must be dismissed if filed more than a year and 30 days after sentencing. See N.Y. C RIM. P ROC. L AW §§ 460.10, 460.30. Petitioner's motion to file a late notice appeal was untimely, and the Appellate Division accordingly denied the motion on August 22, 2005. On September 29, 2005, the New York Court of Appeals denied Cedeno leave to appeal the denial of the motion, on the basis ...