UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
July 8, 2011
WESLEY KELLY, PETITIONER,
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,
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.
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)).
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 was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. The AEDPA's limitations period ordinarily commences running when a conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). A conviction becomes final upon the completion of direct appellate review in state court and by the United States Supreme Court, either when certiorari proceedings are completed or when the time for seeking further direct review expires. McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003); Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001). A party seeking United States Supreme Court review of a state court decision must file his or her petition for a writ of certiorari within ninety days of the decision sought to be reviewed. Sup. Ct. R. 13(1); Bowles v. Russell, 551 U.S. 205, 212 (2007); Saunders v. Senkowski, 587 F.3d 543, 547 (2d Cir. 2009); Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir. 2000); see Day v. McDonough, 547 U.S. 198, 201 (2006).
Under certain circumstances, the limitations period of the AEDPA can be tolled. For instance, tolling occurs for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending."*fn2 28 U.S.C. § 2244(d)(2). The tolling period includes the time during which the appeal of any post-conviction motion is pending. See Bennett v. Artuz, 199 F.3d 116, 119-21 (2d Cir. 1999). However, such applications "do not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
Petitioner's conviction became final on June 29, 2005, ninety days following the New York Court of Appeals' denial of his leave to appeal on March 31, 2005 (Ex. E, Resp't Decl. in Supp., dated December 3, 2010 (Docket Item 9)). Absent tolling, petitioner would have had until June 29, 2006 to file his petition in compliance with AEDPA's one-year limitations period. Petitioner, however, tolled the statute of limitations for certain periods by attacking his conviction through a succession of state court filings, detailed in the table below.
State Collateral Attack Chargeable Time C.P.L. § 440.10 Motion, filed 5-21-05*fn3 (Ex. F, Resp't Decl. in Supp.) ; resolved 11-04-05 (Ex. K, Resp't Decl. in Supp.)*fn4
C.P.L. § 440.20 Motion, filed on 4- 12-06 (Ex. L, Resp't Decl. in Supp.); resolved 11-06-06 (Ex. R, Resp't Decl. in Supp.)*fn5
Petition for writ of error coram nobis, filed on 12-02--06 (Ex. S, Resp't Decl. in Supp.); resolved 8-13-07 (Ex. W, Resp't Decl. in Supp.)
Petition for state writ of habeas corpus, filed on 1-24-08 (Habeas Pet., at ¶ 12); resolved 02-07-08 (Habeas Pet., at ¶ 12)*fn6
C.P.L. § 440.10 Motion, filed on 2- 25-08 (Ex. X, Resp't Decl. in Supp.); resolved 12-23-2009 (Ex. CC, Resp't Decl. in Supp.)*fn7
C.P.L. § 440.20 Motion, filed on 9- 15-08 (Ex. DD, Resp't Decl. in Supp.); resolved 8-03-2009 (Ex. HH,
Resp't Decl. in Supp.)
Petition for writ of error coram nobis, filed on 7-30-09 (Ex. II, Resp't Decl. in Supp.)*fn8 ; resolved 3-30-2010 (Ex. MM, Resp't Decl. in Supp.)*fn9
Petition for federal writ of habeas corpus, filed on 4-25-10
Total: 393 Days
Altogether, 393 days elapsed between the date petitioner's conviction became final and the filing of the petition, a span well outside the one-year statute of limitations provided by AEDPA. Thus, dismissal of the petition as untimely is warranted.
Accordingly, for all the foregoing reasons, I respectfully recommend that respondent's motion be granted and that the petition be denied as untimely.
In addition, since petitioner has not made a substantial showing of the denial of a constitutional right, I also recommend that a certificate of appealability not be issued. 28 U.S.C. § 2253(c). To warrant the issuance of a certificate of appealability, "petitioner must show that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Middleton v. Attorneys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (internal quotation marks omitted); see also Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005) (per curiam). For the reasons set forth above, I conclude that there would be no difference of opinion among reasonable jurists that petitioner's federal rights were not violated.
I further recommend that certification pursuant to 28 U.S.C. § 1915(a)(3) not be issued because any appeal from this Report and Recommendation, or any Order entered thereon, would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court,