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Lamar Edwards v. Warden H.L. Hufford

September 27, 2011

LAMAR EDWARDS, PETITIONER,
v.
WARDEN H.L. HUFFORD, D.A. STATE OF NEW YORK, RESPONDENTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Petitioner Lamar Edwards, appearing pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court has conducted an initial consideration of this Petition and, for the reasons set forth below, has determined that the Petition appears to be time-barred by the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The Court directs Petitioner to show cause within thirty (30) days of the entry of this Memorandum and Order why the petition should not be dismissed as time-barred.

BACKGROUND

Petitioner was convicted on March 21, 1990 in the Supreme Court of the State of New York, Nassau County, of one felony count of Criminal Sale of a Controlled Substance in the third degree, and he was sentenced to three to six years imprisonment.*fn1 Petition at ¶¶ 1-4. Petitioner alleges that he never appealed his 1990 conviction or sentence, but, rather, filed a writ of error coram nobis with the state court that was denied by Order dated October 21, 2010. Petition at ¶ 13. Absent from the Petition is the date that Petitioner filed his writ of error corum nobis. Petitioner appealed the denial of his writ of error corum nobis and, by Decision and Order dated March 4, 2011, the Appellate Division, Second Department dismissed the appeal. The instant petition followed.*fn2 Petitioner filed the Petition in the United States District Court for the Eastern District of Pennsylvania on July 25, 2011 and the Petition was transferred to this Court by Order dated July 28, 2011. See Order, dated July 28, 2011, Rambo, D.J.

DISCUSSION

With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress set a one-year statute of limitations for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to a state court conviction.

28 U.S.C. § 2244(d)(1). The one-year period runs from the date on which one of the following four events occurs, whichever is latest:

(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 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.

28 U.S.C. § 2244(d)(1)(A)-(D). Under subsection (A),*fn3 the instant petition appears untimely. Petitioner's conviction became final on or about June 21, 1991, upon expiration of the 90-day period for seeking a writ of certiorari. Saunders v. Senkowski, 587 F.3d 543, 549-49 (2d Cir. 2009); Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Prisoners like Edwards, whose convictions became final prior to the AEDPA's effective date of April 24, 1996, have a one-year grace period in which to file their habeas corpus petitions, or until April 24, 1997. Smith v. McGinnis, 208 F.3d 15 (2d Cir. 2000) (per curiam) (citing Ross v. Artuz, 150 F.3d 97, 100-03 (2d Cir. 1998)). Instead, this petition dated July 22, 2011, was filed some fourteen years after the grace period had already expired. Therefore, unless the petitioner can show that the statute of limitations period should be tolled, the petition is barred by 28 U.S.C. § 2244(d) as untimely.

I. Tolling

A. Statutory ...


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