The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Jimmy L. Cisneros, a state prisoner appearing pro se, filed a Petition for Habeas Corpus Relief under 28 U.S.C. § 2254. Cisneros is currently in the custody of the New York State Department of Corrections and Community Supervision, incarcerated at the Washington Correctional Facility. Respondent has answered, and Cisneros has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
The St. Lawrence County grand jury returned an indictment charging Cisneros with one count of Predatory Sexual Assault Against a Child (N.Y. Penal Law § 130.96), one count of Rape in the First Degree (N.Y. Penal Law § 130.35), three counts of Sexual Abuse in the Second Degree (N.Y. Penal Law § 130.60[2)]), and three counts of Sexual Misconduct (N. Y. Penal Law § 130.20. Prior to trial, the St. Lawrence County Court dismissed the Rape in the First Degree count as multiplicitous. The case thereafter proceeded to trial. After the second day of trial, Cisneros entered a negotiated guilty plea, with counsel in open court, to Rape in the First Degree as a lesser included offense of Predatory Sexual Assault Against a Child. The remaining counts were dismissed. On June 9, 2008, the trial court sentenced Cisneros to a determinate Petitioner, prison term of seven years, followed by five years of supervised release; the court also entered a permanent order of protection and required that Cisneros register as a sex offender. Cisneros timely filed an appeal from his conviction and sentence, which according to Respondent, was dismissed at some unspecified date for failure to prosecute.*fn1 On November 9, 2009, Cisneros filed a Motion to Vacate the Conviction under N.Y. Penal Law § 440.10 in the St. Lawrence County Court ("CPL § 440.10 motion"). The St. Lawrence County Court denied his motion in an unreported, reasoned decision. The Appellate Division, Third Department, denied leave to appeal and, on April 16, 2010, reconsideration of that denial. Cisneros filed his Petition for relief in this Court on October 13, 2010.
Because the facts underlying Cisneros's conviction are not necessary to a resolution of the issues presented in his Petition to this Court, they are not repeated here, except to understand the decision.
II. ISSUES RAISED/DEFENSES
In his Petition, Cisneros raises two grounds: (1) ineffective assistance of trial counsel; and (2) ineffective assistance of appellate counsel. Respondent contends that the Petition is untimely and his ineffective assistance of appellate counsel claim is unexhausted and procedurally barred. Respondent asserts no other affirmative defense.*fn2
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254, this Court cannot grant relief unless the
decision of the state court "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" at the time the
state court rendered its decision or "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding."*fn3 The Supreme Court has
explained that "clearly established Federal law" in § 2254(d)(1)
"refers to the holdings, as opposed to the dicta, of [the Supreme
Court] as of the time of the relevant state-court
decision."*fn4 The holding must also be intended to be
binding upon the states; that is, the decision must be based upon
constitutional grounds, not on the supervisory power of the Supreme
Court over federal courts.*fn5 Thus, where holdings of
the Supreme Court regarding the issue presented on habeas review are
lacking, "it cannot be said that the state court 'unreasonabl[y]
appli[ed] clearly established Federal law.'"*fn6 When
a claim falls under the "unreasonable application" prong, a state
court's application of Supreme Court precedent must be objectively
unreasonable, not just incorrect or erroneous.*fn7 The
Supreme Court has made it clear that the objectively unreasonable
standard is a substantially higher threshold than simply
believing that the state court determination was incorrect.*fn8
"[A]bsent a specific constitutional violation, federal habeas
corpus review of trial error is limited to whether the error 'so
infected the trial with unfairness as to make the resulting conviction
a denial of due process.'"*fn9 In a federal habeas
proceeding, the standard under which this Court must assess the
prejudicial impact of constitutional error in a state-court criminal
proceeding is whether the error had a substantial and injurious effect
or influence in determining the outcome.*fn10
Petitioner "bears the burden of proving by a preponderance of the
evidence that his constitutional rights have been
Recently the Supreme Court underscored the magnitude of the deference required: As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn12
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn13 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn14
If the Court sustains Respondent's affirmative defense that the
Petition is untimely, the Petition must be dismissed.*fn15
Accordingly, this Court will address the timeliness issue
28 U.S.C. § 2244 provides:
(d) (1) 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.
(2) The 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 shall not be counted toward any period of limitation under this subsection.
The two provisions of § 2244 relevant to this case are (d)(1)(A) (date the judgment of conviction became final) and (d)(2) (exclusion of the time during which a State post-conviction proceeding is pending).
Cisneros was sentenced on June 9, 2008. Thus, under New York law, Cisneros had 30 days within which to file a notice of appeal.*fn16 It is undisputed that Cisneros in fact timely filed and noticed [served] a notice of appeal. Once the appeal is filed and noticed, "the appeal is deemed to have been taken."*fn17 Thus, as of June 11, 2008 (the date the Notice of Appeal was filed), an appeal was pending and the clock on Cisneros's time to file his Petition in this Court had not started ticking. It is also undisputed that Cisneros failed to perfect the appeal. Respondent argues that, because Cisneros failed to perfect his appeal, his conviction became final on July 9, 2008, 30 days after sentencing.
In support of this point, Respondent cites N. Y. Criminal Procedure Law § 460.10*fn18
and Bethea v. Girdich.*fn19 Bethea does not support Respondent's position. Bethea did not file a timely notice of appeal. Nearly 10 months later, Bethea filed a motion in the Appellate Division for leave to file a late notice of appeal, which the Appellate Division denied. Beathea's motion for reconsideration was likewise denied. The Second Circuit noted that Bethea's conviction became final 30 days after sentencing unless the denial of the motion to extend the time to appeal "restarted" the clock. As a matter of first impression, the panel in Bethea held that "the filing of a motion to extend the time to appeal or to file a late notice of appeal does not 'restart' the AEDPA limitation period."*fn20 Because in this case Cisneros filed a timely notice of appeal, Bethea is inapposite. Respondent has not cited any case holding that a conviction became final 30 days after sentencing where, as here, the petitioner timely filed a notice of appeal but failed to perfect that appeal. Independent research by this Court has also failed to uncover any such authority.
Cisneros filed his CPL § 440.10 motion in the St. Lawrence County Court on November 9, 2009. That motion remained pending before the New York Courts until the Appellate Division denied Cisneros's motion for reconsideration on April 16, 2010. Cisneros filed his Petition in this Court on October 13, 2010, 177 days later. Thus, unless the date Cisneros's conviction became final was more than 188 days earlier than the date upon which Cisneros filed his CPL § 440.10 motion, i.e., prior to May 16, 2009, Cisneros's Petition is timely. Because the date upon which Cisneros's appeal was dismissed by the Appellate Division is not reflected in the record, this Court cannot determine when Cisneros's conviction became final. Thus, Respondent has failed to establish that the Petition is untimely.
Cisneros's initial request for an evidentiary hearing, as well as his request for appointment of counsel, were denied by this Court, without prejudice.*fn21 Cisneros has renewed his request for an evidentiary hearing in his Traverse. Ordinarily, a federal habeas proceeding is decided on the complete state-court record and a federal evidentiary hearing is required only if the ...