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Mark Orlando v. Eric T. Schneiderman

September 27, 2011

MARK ORLANDO, PETITIONER,
v.
ERIC T. SCHNEIDERMAN, RESPONDENT.



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

MEMORANDUM & ORDER

Petitioner Mark Orlando, 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 in the Supreme Court of the State of New York, Nassau County, of Murder in the second degree and he was sentenced to twenty-five years to life imprisonment on August 18, 2005. Petition at ¶¶ 1-5. On April 28, 2009, the Appellate Division affirmed the conviction, People v. Orlando, 61 A.D.3d 1001, 878 N.Y.S.2d 185 (2d Dep't 2009), and the New York Court of Appeals denied leave to appeal the decision of the Appellate Division on October 29, 2009, People v. Orlando, 13 N.Y.3d 837, 918 N.E.2d 968, 890 N.Y.S.2d 453 (2009). Petitioner did not file a writ of certiorari to the United States Supreme Court. Petition at ¶ 18.

Petitioner also filed a writ of error corum nobis that was denied by the Appellate Division on June 7, 2011, People v. Orlando, 85 A.D.3d 823, 925 N.Y.S.2d 334 (2d Dep't 2011). Absent from the Petition is the date that Petitioner filed his writ of error corum nobis. Petition at ¶ 11(3). In addition, Petitioner claims to have another writ of error corum nobis now pending in the Appellate Division. Petition at ¶ 15.

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),*fn1 the instant Petition appears untimely. Petitioner's conviction became final on or about January 29, 2010, 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). In order to be timely, this Petition should have been filed on or before January 29, 2011. Instead, this Petition dated August 15, 2011, was filed after the one-year limitations period had already expired. Therefore, unless ...

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