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Wesley Kelly v. William Lee

July 8, 2011

WESLEY KELLY, PETITIONER,
v.
WILLIAM LEE
RESPONDENT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

AMENDED REPORT AND RECOMMENDATION*fn1

TO THE HONORABLE GEORGE B. DANIELS, United States District Judge,

I. Introduction

Wesley Kelly petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks an order vacating a judgment of conviction entered on November 7, 2002, following a jury trial, in the Supreme Court of the State of New York, New York County (Fried, J.), for two counts of burglary in the second degree, and seven counts of grand larceny in the fourth degree, in violation of New York Penal laws Sections 140.25(2) and 155.30(4), respectively. Petitioner was sentenced as a persistent violent offender to twenty years to life, in the aggregate, and is currently incarcerated pursuant to that judgment (Resp't Memo. Of Law in Supp. of the Mot. To Dismiss, dated December 3, 2010 (Docket Item 10), at 1-2).

Respondent moves to dismiss the petition on the ground that it is untimely (Notice of Mot. to Dismiss, dated December 3, 2010 (Docket Item 9)). For the reasons set forth below, I respectfully recommend that respondent's motion be granted and that the petition be dismissed as time-barred.

II. Facts

The facts relevant to the disposition of respondent's motion can be briefly stated.

Petitioner was convicted in New York State Supreme Court, New York County on November 7, 2002. Petitioner, assisted by counsel, appealed his conviction to the Appellate Division of the Supreme Court, First Department, which affirmed the conviction on January 13, 2005. People v. Kelly, 14 A.D.3d 390, 787 N.Y.S.2d 330 (1st Dep't 2005). The New York Court of Appeals denied petitioner leave to appeal on March 31, 2005. People v. Kelly, 4 N.Y.3d 832, 829 N.E.2d 680, 796 N.Y.S.2d 587 (2005). Petitioner subsequently attacked his conviction in a series of pro se applications, motions, and petitions in the New York courts, all of which are set forth in detail below.

Petitioner executed the petition on April 25, 2010, and I deem it to be filed on that date. See Rule 3(d) of the Rules Governing Section 2254 Cases in the United States District Courts; Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001) (the prison "mailbox" rule extends to habeas petitions). According to the petition, the grounds raised are "those rasied [sic] on direct appeal and collateral motions" (¶ 13, Habeas Pet., dated April 25, 2010 (Docket Item 1)).

III. Analysis

28 U.S.C. § 2244(d)(1), as amended by Section 101 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Public Law No. 104-132, provides a one-year statute of limitations for habeas corpus petitions:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which 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 ...


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