The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Petitioner Anthony L. King, Sr. ("King" or "Petitioner") has filed a petition (Dkt. #1) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his detention in Respondent's custody. Petitioner is incarcerated pursuant to a judgment entered against him in Niagara County Court of New York State following a jury trial convicting him of rape in the first degree, sexual abuse in the first degree, assault in the third degree, and menacing in the third degree.
By order dated March 24, 2011 (Dkt. #3), the Court directed Petitioner to file a § 2254 Timeliness Response Form. Petitioner submitted the form within the required time-frame (Dkt. #4).
For the reasons that follow, the petition is untimely, and Petitioner is not entitled to statutory or equitable tolling. Accordingly, the Court dismisses with petition without requiring Respondent to answer.
A. The petition is untimely under 28 U.S.C. 2244(d)(1).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, created a new one-year statute of limitations applicable to the filing of applications for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). In most cases, including this one, the one-year period runs from the date on which the petitioner's state criminal judgment becomes final. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (citing 28 U.S.C. § 2244(d)(1)(A)); accord, e.g., Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir. 2000). A conviction is considered "final" "once 'the judgment of conviction [has been] rendered, the availability of appeal exhausted, and the time for petition for certiorari . . . elapsed.'" McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003) (quoting Teague v. Lane, 489 U.S. 288, 295 (1989) (citation and internal quotation marks omitted in original) and citing Clay v. United States, 537 U.S. 522, 527 (2003) (noting that "finality" has a "long-recognized, clear meaning" in the post-conviction relief context--namely, the time when the United States Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires")).
The Appellate Division, Fourth Department, of New York State Supreme Court affirmed King's conviction on direct appeal on November 14, 2008. People v. King, 56 A.D.3d 1193 (4th Dept. 2008). The New York Court of Appeals denied permission to appeal on January 16, 2009. People v. King, 11 N.Y.3d 926 (2009). King thereafter had ninety (90) days in which to file a petition seeking a writ of certiorari in the United States Supreme Court. McKinney, 326 F.3d at 96 (citing SUP. CT. R. 13(1) ("A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review."). Because King did not file a petition for certiorari seeking review of the New York state-court decisions in the United States Supreme Court, his conviction became final on Thursday, April 16, 2009, ninety (90) days after January 16, 2009, the date of the order denying his application for leave to appeal to the New York Court of Appeals. See id.
King then had one year from that date, or until April 16, 2010, in which to timely file his federal habeas petition. See 28 U.S.C. 2244(d)(1)(A). King's petition, deemed to have been filed on February 23, 2011,*fn1 was submitted 313 days after the one-year limitations period expired.
B. Statutory tolling under 28 U.S.C. § 2244(d)(2) is not available.
AEDPA contains a tolling provision which provides that "[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 shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2); see also, e.g., Smith v. McGinnis, 208 F.3d at 16.
King's petition and § 2254 Timeliness Response Form indicate that he filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 on March 3, 2010, which was denied by the trial court on October 4, 2010.*fn2 See Petition, ¶11(c) (Dkt. #1); § 2254 Timeliness Response Form, ¶3 (Dkt. #4). This was a "properly filed application" for state-court collateral review within the meaning of 2244(d)(2). However, it does not provide the tolling needed to make King's timely because it was filed after the limitations period expired, as discussed further below.
Section 2244(d)(2)'s tolling applies only if a state post-conviction motion was "pending" during the one-year limitations period, which, in King's case, ended on April 16, 2010. Smith, 208 F.3d at 16 (citing Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000)). Thus, the time that his C.P.L. § 440.10 motion was pending (March 3, 2010, to October 4, 2010) is excluded from the statutory tolling because it occurred after the conclusion of the one-year limitations period. See, e.g., Williams v. Conway, 596 F. Supp.2d 770, 774 (W.D.N.Y. 2009) ("[T]he limitations period already had expired by the time he filed his C.P.L. § 440.10 motion, meaning that it did not qualify for 28 U.S.C. § 2254(d)(2)'s tolling provision. A state-court collateral attack on a conviction cannot toll an already expired limitations period.") (citing Smith v. McGinnis, 208 F.3d at 17 ("We therefore hold that proper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run."). "Nor does a belatedly filed state-court collateral attack serve to start the limitations period running anew." Williams, 596 F. Supp.2d at 774 (citing Smith, 208 ...