The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Petitioner Dwayne Nichols brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his June 3, 2004 conviction following a jury trial in the County Court of Orange County, New York. For the reasons stated below, the petition is dismissed as untimely.
Petitioner's conviction stems from a June 5, 2003 incident at his home in Middletown, New York, which led to charges that he battered his wife with a guitar and raped his 16-year old stepdaughter at knifepoint. (Kass Aff. ¶¶ 2-5.) On June 3, 2004, a jury convicted petitioner of Attempted Rape in the Third Degree, Assault in the Third Degree as a lesser included offense, Criminal Possession of a Weapon in the Third Degree, Unlawful Imprisonment in the First Degree, and three counts of Endangering the Welfare of a Child.*fn2 (Kass Aff. ¶ 7.)
On July 26, 2004, petitioner filed a motion to set aside the verdict pursuant to Criminal Procedure Law ("CPL") § 330.30 for, inter alia, alleged violations by the prosecution of their obligations under People v. Rosario, 9 N.Y.2d 286 (1961), and Brady v. Maryland, 373 U.S. 83 (1963). (R. at 14-34.) On October 28, 2004, the trial court dismissed petitioner's CPL § 330.30 motion. (R. at 262-69.) Subsequently, on November 1, 2004, the trial court sentenced petitioner to a determinate term of imprisonment of 15 years on the conviction of Attempted Rape in the First Degree, an indeterminate term of 3.5 to 7 years on the conviction of Criminal Possession of a Weapon in the Third Degree, an indeterminate term of 2 to 4 years on the conviction of Unlawful Imprisonment in the First Degree, 1 year on the conviction of Assault in the Third Degree, and three 1-year terms on the convictions of Endangering the Welfare of a Child, with all sentences to run consecutively. See People v. Nichols, 826 N.Y.S.2d 359 (2d Dep't 2006).
On November 12, 2004, petitioner filed a motion to vacate the judgment pursuant to CPL § 440.10 on the basis of the alleged Rosario and Brady violations. (R. at 270.) On May 13, 2005, the trial court held an evidentiary hearing with respect to these alleged violations, and by Decision and Order of May 17, 2005, the court held that no such violations had occurred.*fn3
(R. at 523-25.) Petitioner did not seek leave to appeal the denial of this CPL § 440.10 motion. (Kass Aff. ¶ 9.)
On direct appeal, the Appellate Division, Second Department, affirmed petitioner's conviction, holding that petitioner's Rosario and Brady claims were procedurally defaulted due to his failure to seek leave to appeal the denial of his CPL § 440.10 motion. See Nichols, 826 N.Y.S.2d at 360. However, the Appellate Division did modify petitioner's sentence, holding that the sentences imposed on the three counts of Endangering the Welfare of a Child should run concurrently to the sentences imposed on the other counts of conviction. See id. at 361. On March 13, 2007, the Court of Appeals denied petitioner's application for leave to appeal. People v. Nichols, 8 N.Y.3d 925 (2007).
On November 6, 2007, petitioner filed a petition for a writ of error coram nobis with the Appellate Division. (R. at 656-90.) On January 29, 2008, the Appellate Division denied the petition, People v. Nichols, 849 N.Y.S.2d 445 (2d Dep't 2008), and on May 13, 2008, the Court of Appeals denied petitioner's request for leave to appeal the Appellate Division's decision. People v. Nichols, 10 N.Y.3d 868 (2008).
On June 12, 2008, petitioner filed a second CPL § 440.10 motion. (R. at 1114-26.) The County Court denied petitioner's motion on October 2, 2008, and the Appellate Division denied petitioner's application for leave to appeal on December 24, 2008. (R. at 1198-1201.) On February 26, 2009, petitioner filed a motion for reargument of the Appellate Division's December 24, 2008 denial of leave to appeal. (R. at 1239-40.) On June 4, 2009, the Appellate Division denied - without explanation - the motion for reargument.*fn4 (R. at 1318.)
Petitioner filed his petition for a writ of habeas corpus on July 8, 2009.*fn5 (R. at 1439-41.) Petitioner asserts four grounds for habeas relief: (1) the alleged Rosario and Brady violations; (2) violation of his Sixth Amendment right to confrontation; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel. (R. at 1448.)
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat 1214 (1996), imposes a one-year statute of limitations on federal habeas corpus petitions, which runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1). AEDPA's limitations period is subject to tolling, however, for "[t]he time during which a properly filed application for State ...