The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Petitioner pro se Bruce Jefferys, presently incarcerated at the Clinton Correctional Facility, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner also seeks appointment of counsel and to proceed in forma pauperis. (Doc. Nos. 2, 4.) Petitoner's motion for appointment of counsel is DENIED and his motion to proceed in forma pauperis is GRANTED. For the reasons that follow, petitioner is directed to submit an affirmation, within thirty (30) days of the date of this Order, showing cause why the petition should not be dismissed as time-barred. Respondent is ordered to reply within thirty (30) days of the filing of petitioner's affirmation.
On February 14, 2002, petitioner pled guilty to murder in the first degree before the Supreme Court of the State of New York, Kings County. (Mem. in Supp. Pet. (Doc. No. 1-2) at vi.) The court sentenced petitioner to 23 years to life on April 17, 2002. (Id.) Having signed an appeal waiver as part of his plea, petitioner did not immediately file an appeal of his conviction. (Pet. (Doc. No. 1) at 1; Mem. in Supp. Pet. at 1-2.) Rather, on November 9, 2010 - - more than eight years later - - petitioner filed a post-conviction motion pursuant to N.Y. Crim. Proc. Law § 440.10, which was denied on April 27, 2011. (Mem. in Supp. Pet. at vi.) He appealed that decision on May 6, 2011, which was also denied on July 29, 2011. (Id.) He then sought - - for the first time - - permission to file a late notice of direct appeal with the Second Department and a late notice of appeal with the New York Court of Appeals, on August 17, 2011 and January 3, 2012, respectively, both of which were denied. (Id. at vi-vii; Pet. at 4.) Ultimately, petitioner filed the present habeas petition on July 30, 2012. (Pet. at 1.)
I.Timeliness of the Habeas Petition
In enacting the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress established a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a State court judgment. See 28 U.S.C. § 2244(d)(1). AEDPA provides that 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.
In determining the running of the limitation period, AEDPA also instructs courts not to "count" the time during which a "properly filed" application for state post-conviction or other collateral review is "pending." 28 U.S.C. § 2244(d)(2); see also Wood v. Milyard, 132 S. Ct. 1826, 1831 (2012). Moreover, AEDPA's limitation period is not jurisdictional and may be equitably tolled. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam). In order to be entitled to equitable tolling, petitioner must show (1) "that he has been pursuing his rights diligently," and (2) "that some extraordinary circumstance stood in his way and prevented timely filing." Holland, 130 S. Ct. at 2562-63 (quotation marks omitted); see also Rivas v. Fischer, - - - F.3d - - - -, 2012 WL 2686117, at *20 (2d Cir. 2012); Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008).*fn1
A district court can "raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000); see also Wood, 132 S. Ct. at 1833-34 ("[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition") (quoting Day v. McDonough, 547 U.S. 198, 209 (2006)). However, "unless it is unmistakably clear from the facts alleged in the petition, considering all of the special circumstances enumerated in Section 2244(d)(1), equitable tolling, and any other factor relevant to the timeliness of the petition, that the petition is untimely, the court may not dismiss a Section 2254 petition for untimeliness without ...