The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
Pro se*fn1 Petitioner Reginald Lawrence is currently serving a prison sentence of twenty-five years following his conviction in New York State Supreme Court, Kings County, of robbery in the first degree (N.Y. Penal Law § 160.15) and attempted escape in the first degree (N.Y. Penal Law § 205.10). Petitioner filed the instant action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his sentence on the following grounds:
(i) Petitioner was denied effective assistance of counsel; (ii) the trial court abused its discretion when it denied Petitioner the opportunity to present psychiatric evidence; (iii) the trial court was biased against Petitioner in various rulings during the proceedings; and (iv) Petitioner was denied the right to an impartial jury. For the reasons set forth below, the petition is denied.
At trial, the prosecution established that Petitioner, acting in concert with Calvin Morgan in the commission of a robbery, shot and killed a cab driver on January 28, 1997 and, armed with pro se submissions, "however inartfully pleaded, must be held to less a gun, forcibly stole a Shearling coat and jewelry from Brian Phillips on February 2, 1997. (See Respondent's Memorandum of Law, Docket Entry No. 10 ("Resp. Brief") at 2.) For these acts, Petitioner was convicted by a jury on February 25, 1998 of robbery in the first degree (N.Y. Penal Law § 160.15) and attempted escape in the first degree (N.Y. Penal Law § 205.10), and was sentenced to twenty-five years in prison for the robbery, concurrent with two to four years of imprisonment for the attempted escape. (See Appellant's Brief in Support of Equitable Tolling, Docket Entry No. 1 ("Pet. Brief") at 1; Resp. Brief at 2.)
Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, ("Appellate Division"), Second Department, claiming that: (i) two sworn jurors were improperly discharged; (ii) Petitioner was denied a fair trial; (iii) Petitioner's guilt was not proven beyond a reasonable doubt; and (iv) Petitioner's sentence was excessive. (See Pet. Brief at 1.) On March 17, 2003, Petitioner's sentence was affirmed. See People v. Lawrence, 303 A.D.2d 603 (2d Dep't 2003). On May 29, 2003, leave to appeal to the New York State Court of Appeals was denied. See People v. Lawrence, 100 N.Y.2d 540 (2003).
In June 2003, Petitioner retained counsel in connection with his prospective N.Y. C.P.L. § 440 motion and federal habeas appeal, (see Pet. Brief, Ex. A-C), but soon thereafter filed a complaint against counsel with the Queens Bar Association on the basis that counsel disregarded Petitioner's letters, (see Pet. Brief, Ex. G). In a letter dated October 9, 2003, counsel apologized for not responding sooner to Petitioner's correspondence and told Petitioner to "[b]e assured that [counsel] will be working diligently on [Petitioner's] behalf to pursue any and all remedies [that] may be available to [Petitioner] either in state court or federal court." (See Pet. Brief, Ex. H.) Petitioner claims that he then consistently corresponded with counsel regarding obtaining missing transcripts, appellate briefs and suppression minutes relevant to Petitioner's case. (See Pet. Brief at 2-3.)
In a letter dated July 26, 2004, Robert C. Heinemann, Clerk of the Court of the Eastern District of New York, responded to Petitioner's July 19, 2004 request for an extension of time to file his habeas petition, and enclosed the 28 U.S.C. § 2254 petition form and form to request waiver of the filing fee. (See Pet. Brief, Ex. M.) In November 2004, Petitioner reopened his claims against counsel with the Queens County Bar Association for "his negligence and unfulfilled promises." (See Pet. Brief, Exs. N, O.)
On January 15, 2005, Petitioner filed a Section 440.10 motion pro se in New York Supreme Court, Kings County, claiming that his trial counsel was ineffective because counsel failed to: (i) present an alibi defense, (ii) serve notice of a psychiatric defense and (iii) interview Petitioner's co-defendant. (See Resp. Brief at 3.) In support of these claims, Petitioner submitted affidavits from Petitioner's sister and girlfriend, which stated Petitioner was at a party during the time of the robbery, and from co-defendant Calvin Morgan, which stated Petitioner did not participate in the robbery. (See Pet. Brief at 4; Resp. Brief at 3.) On August 24, 2005, Petitioner's Section 440.10 motion was denied. (See Petitioner's Habeas Petition, Docket Entry No. 1 ("Petition") at 10.) On December 1, 2005, Petitioner's motion for leave to appeal was denied. (See Petition at 12.)
On January 10, 2006, Petitioner filed the instant habeas petition pursuant to 28 U.S.C. § 2254. On January 30, 2006, the court issued an order to show cause requesting that Respondent file an answer to the petition, addressing the timeliness of the petition under 28 U.S.C. § 2244(d). On February 8, 2006, Respondent filed a response and requested that the petition be dismissed as time barred. (See Docket Entry Nos. 2, 5.) This Court denied Respondent's motion to dismiss the petition with leave to renew after the answer is filed. (See Docket Entry Nos. 6, 7.) On May 31, 2006, Respondent filed another response to the court's January 30, 2006 order to show cause, and requested that the petition be dismissed as time-barred as well as on the merits of the petition. (See Docket Entry No. 10.)
A.AEDPA Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a person in custody pursuant to a state court judgment has one year to file an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). AEDPA provides that the one-year limitation period runs from the date on which the latest of the following four events occurs: (A) the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) 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) a new constitutional right was announced by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the factual predicate of the claim or claims presented could have been discovered by the Petitioner through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). A conviction becomes final for purposes of AEDPA when the United States Supreme Court denies a writ of certiorari, or, if the Petitioner does not seek a writ, the date the 90-day period to seek this writ expires. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
In the instant action, the only applicable subsection of the AEDPA statute of limitations is subsection (A).*fn2 Here, Petitioner's conviction was affirmed by the Appellate Division, Second Department on March 17, 2003. See People v. Lawrence, 303 A.D.2d 603 (2d Dep't 2003). Leave to appeal the affirmance of Petitioner's conviction was denied by the New York State Court of Appeals on May 29, 2003. See People v. Lawrence, 100 N.Y.2d 540 (2003). Petitioner did not seek certiorari from the United States Supreme Court; thus, Petitioner's judgment of conviction became final on August 27, 2003, 90 days after the New York State Court of Appeals denied Petitioner leave to appeal. The one-year statute of limitations under Section 2244(d) began on August 27, 2003, so a timely habeas petition must have been submitted on ...