The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
ORDER DISMISSING PETITION
Petitioner Jose Bermudez, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Under 28 U.S.C. § 2254. Bermudez is currently in the custody of the New York Department of Correctional Services, incarcerated at the Attica Correctional Facility. Respondent has answered, and Bermudez has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Bermudez's claims arise out of two judgments of conviction entered July 31, 2003, in the Albany County Court. In the first conviction, a jury found Bermudez guilty of five counts of Burglary in the Second Degree (N.Y. Penal Law, § 140.25(2)). In the second conviction, Bermudez pled guilty to one count of Burglary in the Second Degree (N.Y. Penal Law, § 140.25(2)). On the first conviction, the Albany County Court sentenced Bermudez, as a second felony offender, on each count to consecutive determinate prison terms of 15 years, to be followed by five years' post-release supervision. On the second conviction, the Albany County Court imposed a consecutive prison term of five years, to be followed by three years' post-release supervision.
Bermudez timely appealed both convictions and sentences to the Appellate Division, Third Department. The Appellate Division affirmed both convictions in separately reported, reasoned decisions. The New York Court of Appeals, consolidated the petitions for leave to appeal and denied leave to appeal on April 9, 2007, and denied reconsideration on June 27, 2007.*fn1 On July 17, 2008, Bermudez, appearing pro se, filed a motion in the Albany County Court to vacate his second conviction under N.Y. Criminal Procedure Law, § 440.10. The Albany County Court denied the motion in an unreported, reasoned decision, and the Appellate Division, Third Department, denied leave to appeal on October 21, 2008. Bermudez filed his Petition for relief in this Court on January 12, 2009.
II. GROUNDS RAISED/DEFENSES
In his Petition Bermudez raises five grounds: (1) his statements to police were coerced and should have been suppressed; (2) the failure of the police officers to provide him a copy of the search warrant violated Brady;*fn2 (3) a Fifth Amendment violation (self-incrimination);*fn3 (4) failure to suppress the evidence obtained as a result of the illegal search violated his Fourth Amendment rights;*fn4 and (5) ineffective assistance of his trial and appellate counsel.
Respondent contends that: (1) the Petition is untimely; and (2) that the ineffective assistance of appellate counsel claim is unexhausted. Respondent raises no other affirmative defense.*fn5
Respondent has raised untimeliness as an affirmative defense. If Respondent prevails on this defense, this Court must dismiss the Petition. Consequently, the timeliness of the petition must be addressed first.
A petition for federal habeas relief must be filed within one year of the later of the date:
(1) the state court conviction becomes final; (2) a state-created impediment to filing is removed; (3) the constitutional right was first recognized by the Supreme Court; or (4) the date upon which the factual predicate for the claim or claims could have been discovered through the exercise of due diligence.*fn6 Under the facts of this case, only the date the state court conviction became final is applicable. The one-year limitation is, however, tolled during the period that a properly filed application for post-conviction or other collateral review is pending in the state courts.*fn7
The New York Court of Appeals denied Bermudez's petition for reconsideration on June 27, 2007.*fn8 Bermudez's conviction became final 90 days later, when his time to petition for certiorari in the Supreme Court expired,*fn9 September 25, 2007. At that point, absent tolling, Bermudez had until September 25, 2008, to file his petition for federal habeas relief. Bermudez filed his Petition for federal habeas relief in this Court on January 12, 2009, 108 days late.*fn10
Although it is not entirely clear, it does not appear that Bermudez sought post-conviction relief in the state courts challenging his first conviction.*fn11 Thus, with respect to his first conviction, Bermudez's Petition, unless equitably tolled, is 108 days late. However, even if Bermudez did seek post-conviction relief from ...