The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
REPORT and RECOMMENDATION
Petitioner, Donnell Shelton, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1). In his amended application, petitioner challenges a September 9,*fn1 1998, judgment of conviction from the Schenectady County Court. (Amended Petition ("Am. Pet.") ¶¶ 1--2, Dkt. No. 7). Petitioner was convicted after a jury trial of Murder, Second Degree; Criminal Possession of a Weapon, Second Degree; Criminal Possession of a Weapon, Third Degree; two counts of Criminal Use of a Firearm in the First Degree; and Assault in the First Degree. (Am. Pet. ¶ 4). Petitioner was sentenced to concurrent, indeterminate terms aggregating twenty-five years to life imprisonment. (Am. Pet. ¶ 3). Petitioner's conviction was affirmed by the Appellate Division on March 16, 2000. (Am. Pet. ¶ 9(a)--(d) & People v. Shelton, 270 A.D.2d 647, 705 N.Y.S.2d 703 (3d Dep't 2000)). The New York Court of Appeals denied leave to appeal on May 31, 2000. (Am. Pet. ¶ 9(e) & People v. Shelton, 95 N.Y.2d 801, 711 N.Y.S.2d 169 (2000)). Petitioner filed a motion to vacate his conviction in Schenectady County Court pursuant to N.Y. Crim. Proc. Law § 440.10 ("440.10 Motion") on September 2, 2008. (Am. Pet. ¶ 11(a); Resp.'s Ex. O). The Schenectady County Court denied petitioner's 440.10 Motion on November 10, 2008. (Am. Pet. ¶ 11(a)(5)--(6); Resp.'s Ex. S). On January 6, 2009, petitioner filed a petition for a writ of error coram nobis ("Coram Nobis Petition") in the Appellate Division, Third Department. (Am. Pet. ¶ 11(b); Resp.'s Ex. X). The Appellate Division denied petitioner's Coram Nobis Petition on March 25, 2009. (Am. Pet. ¶ 11 (b)(5)--(6); Resp.'s Ex. Y).
Petitioner has completed a form-petition, which includes the background information discussed above. However, petitioner does not utilize the space on the form to list his grounds for relief,*fn2 but instead has attached a seven-page document entitled "Ground Topic," in which he describes the grounds on which his amended petition is based. (Ground Topic pp. 1--7).
Petitioner alleges in his Ground Topic that he was tried and convicted without a valid indictment, his trial and appellate counsel erred by not challenging the validity of the indictments, and petitioner's attorneys withheld the relevant documents from him until May 2008. (Ground Topic pp. 1--6). Petitioner then concludes that because his indictments were allegedly invalid, he is "actually innocent," and that this court should therefore excuse the lateness of his petition, and "remove the procedural bar and entertain the underlying issues." (Ground Topic p. 6--7).
Petitioner was granted permission to proceed in forma pauperis on December 28, 2009. (Dkt. No. 8). Respondent filed his answer on April 27, 2010, including the relevant state court records, and a supporting memorandum of law. (Dkt. Nos. 12, 13, 14).
I. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year statute of limitations for prisoners to seek federal review of their state court criminal convictions. 28 U.S.C. § 2244(d)(1). The one year period generally begins to run from the date on which the state criminal conviction became final by the conclusion of direct review or by the expiration of the time to seek direct review. Id. § 2244(d)(1)(A). If a direct appeal is filed, the judgment of conviction becomes final ninety days after the date that the New York Court of Appeals denies leave to appeal.*fn3 Williams v. Artuz, 237 F.3d 147, 150--51 (2d Cir. 2001).
Other dates from which the limitations period may start running are the date on which an unconstitutional, state-created impediment to filing a habeas petition is removed; the date on which the constitutional right on which petitioner bases his habeas application was initially recognized by the Supreme Court, if the right was newly recognized and made retroactively applicable; or the date on which the factual predicate for the claim or claims presented could have been discovered through the exercise of due diligence (newly discovered evidence). 28 U.S.C. § 2244(d)(1)(B), (C), and (D).
As noted by District Judge Gary L. Sharpe in his order dated October 21, 2009, and this court in its order dated December 28, 2009, the petition appears time-barred. (Dkt. Nos. 3, 8). Petitioner's conviction became "final" for the purposes of AEDPA on August 29, 2000, ninety days after the New York Court of Appeals denied leave to appeal. Therefore, petitioner had until August 29, 2001, to file a timely petition. This petition was signed on October 10, 2009, eight years after the one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A) expired. (Dkt. No. 1).
The AEDPA does, however, provide for tolling of the statute of limitations.
The Statute provides that the one-year limitations period will be tolled while a state court post-conviction motion is pending. 28 U.S.C. § 2244(d)(2). The tolling provision only applies if the post-conviction motion was pending within the one-year limitations period. Smith v. McGinnis, 208 F.2d 13, 16 (2d Cir. 2000). Simply filing a post-conviction motion does not re-start the limitations period, and it excludes from the limitations period only the time that the motion remained undecided, including the time during which an appeal from the denial of the motion was taken. See Bennett v. Artuz, 199 F.3d 116, 120--21 (2d Cir. 1999). Respondent included copies of Petitioner's 440.10 Motion and petitioner's Coram Nobis Petition in the State Court Records, filed on April 27, 2010. Petitioner's 440.10 Motion was filed on September 2, ...