The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Timothy Munson ("Munson" or "Petitioner") filed this Petition for a writ of habeas corpus challenging the constitutionality of his conviction following a guilty plea to first degree assault. Also pending is Munson's motion to stay the petition and motion to invoke discovery procedures (Docket No. 11). For the reasons that follow, the petition is dismissed and the motion to stay and motion for discovery are denied with prejudice.
II. Factual Background and Procedural History
While on parole, Munson robbed Devon Crittendon at gunpoint and also shot him during commission of the robbery. Petitioner was convicted on March 15, 2005, after a guilty plea in Monroe County Supreme Court of first degree assault in full satisfaction of the indictment. He was sentenced as a second felony offender to fourteen years in state prison with five years of post-release supervision.
Before perfecting his direct appeal, Petitioner submitted a pro se motion to vacate the judgment under New York Criminal Procedure Law ("C.P.L.") § 440.10 on the ground that his counsel was allegedly ineffective in regard to sentencing advice. That motion was summarily denied on October 19, 2006, and leave to appeal was denied on July 24, 2007.
Represented by counsel, Petitioner subsequently perfected his direct appeal. The Fourth Department unanimously affirmed the conviction in a summary order on June 6, 2008. Leave to appeal was denied on September 15, 2008.
Respondent argues that the Petition is untimely under 28 U.S.C. § 2244(d)(1) and that Munson is not entitled to equitable tolling of the statute of limitations. The Court agrees with Respondent that Petitioner's conviction became final on December 14, 2008, and the limitations period expired one year from that date.
Respondent argues that the Petition was filed on the date that it was received by the Court, which was December 14, 2009. This argument ignores the well-settled "prisoner mailbox rule". In Houston v. Lack, the United States Supreme Court held that a pro se habeas petitioner's notice of appeal is deemed filed on the date of its submission to prison authorities for mailing, as opposed to the date of its receipt by the court clerk. 487 U.S. 166, 276 (1988).
The rule is premised on the fact that a pro se prisoner's mail must go through the conduit of prison authorities whom he cannot control and whose interests might be adverse to his. See Houston, 487 U.S. at 271.
"Where it is unclear when a pro se state prisoner mailed his or her habeas petition, the court assumes that the petition is filed on the day it is signed and dated." Porter v. Greiner, No. 00-6047, 2005 WL 3344828, at *7 (E.D.N.Y. Nov. 18, 2005)(citing Adeline v. Stinson, 206 F.3d 249, 251 n.1 (2d Cir. 2000) ("[W]e treat the petitioner's petition as having been given to prison officials for filing, and therefore having been filed, on the date that appears on his petition . . . .")). The Court construes the date Petitioner signed the Petition (November 30, 2009) as the effective filing date. The Petition accordingly is timely.
III. Exhaustion and Procedural Default
Respondent raises the defenses of non-exhaustion and procedural default with regard Petitioner's habeas claims. Respondent argues that certain claims, although technically unexhausted, must be "deemed exhausted" and procedurally defaulted due to the absence of further appellate review. See, e.g., Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Respondent argues that other of Petitioner's claims are unexcused procedural defaults because the C.P.L. § 440.10 court relied upon adequate and independent state grounds to dismiss them. E.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991) ("This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.") (citations omitted); accord, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam) ("[F]ederal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim.").
Respondent argues, in the alternative, that Munson's claims are wholly without merit. The Court agrees. Because the claims are easily denied on the merits, the Court has reviewed their substance rather than addressing the affirmative defense of procedural default. See, e.g., Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir. 2002) ("[H]urdling the procedural question to reach the merits of a habeas petition" may be justified if the underlying issues "were easily resolvable against the habeas ...